Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN HEnORY OP JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KF 1250.B62 Commentaries on the non-contract lawand 3 1924 019 200 678 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019200678 ON THE *~4j^ J-.i NON-CONTRACT LAW AND ESPECIALLY AS TO COMMON AFFAIRS NOT OF CONTRACT OB THE EVERY-DAY RIGHTS AND TORTS BY JOEL PRENTISS BISHOP BONORAEY DOCTOB JUBI8 DTBIDSQDB OF THE UNIVERSITY OF BERNE CHICAGO T. H, FLOOD AND COMPANY 3latD«33i)ott 3PuiiUsSiets 1889 /v\ / o z t 3 Copyright, 1889, By Joel Pbehiiss Bishop. E9n{becs[ts jptess: JOHK WoSOn AHD SoK, Gaubbidoe. PREFATOEY EXPLANATIONS. The purpose of this volume is to set out, in compact form and condensed language, substantially after the manner of my recent enlarged work on " Contracts," the common-Uw reasonings and the conclusions of the courts upon the subject of its title ; namely, " Non- Contract Law, and especially as to Common Affairs not of Contract, or the Everyday Eights and Torts." I explain in the first chapter why the term "Non- Contract Law," instead of " Torts," is selected as the short name of the book. Its sphere extends beyond torts, which it includes, to whatever else is within a group of fundamental principles regulating things not bargained about. Therein it follows a natural division in the legal field, instead of driving a mere artificial fiuTow. And the consequence is, that it is clearer in elucidation and practically more useful than I could have made it upon the artificial plan. , In the first chapter also is stated the book-history of 60 much of this subject as is termed the " Law of Torts." The reader will there perceive that the subject has for many years occupied a foremost place in my thoughts. And I iave constantly wished for a prolongation of my day of labor until I could . see a fitting opportunity for presenting it to the professional public ; provided, of course, that in the mean time no other author should IV PREFATORY EXPLANATIONS. have treated it in a manner satisfying my conceptions. Since I first brought this subject within the sphere of my purposes, and failed to convince any pubHsher that it was a fit subject for a law book, several authors have written upon it. I do not wish to disparage their works ; some of- them are certainly worthy of great credit, and the poorest may be incomparably better than mine. But no one of them fills in any consider- able measure my idea. So I have taken the risk of pre- senting now the book which has been thirty-six years in contemplation, and in some degree in preparation. In the last work on " Torts " which I have seen, an English one by an able author, it is said " that a com- plete theory of torts is yet to seek, for the subject is altogether modern." ^ Another very able writer, an American, treats of "Torts" as not even a subject, but as a collection of disconnected subjects. And, so far as I have observed, the other books are of the one or the othei* of these two classes. Now, when we extend " Torts " to the natural par- tition-line in the legal field, and make it " Non-Contract Law," all this obscurity vanishes. There is not in the entire law any other division so plain and distinct, so completely one subject, so absolutely governed by common fundamental principles, resting in natural rea- son and recognized by the courts from the earliest dawnings of the common-law jurisprudence, and never lost sight of or questioned, as this of non-contract law. This subject, in these lights, I have endeavored to pre- sent in this volume. And, if I am fortunate enough to find readers, I appeal to them to say whether it is not as thus stated, and even more emphatically than I thus claim. 1 Pollock Torts, pref, vii. PREFATOBY EXPLANATIONS. V In treating of this one subject, more beautiful than any other through which it has been my privilege to travel, — the road less obstructed by technical turn- ings and windings ; the lights shining upon it from its sources in nature, in the cultivated moral and social sciences, and in the judicial reports, more clear and happily blending, — I could not forbear to pause now and then, yet briefly and I trust not too often, to ad- mire our old and still young common law of reason. And if occasioaally I have expressed indignation at modem attempts to smite it to its death and burial in statutes under the name of codification, I am sure the thoughtful reader will pardon me. But most of this matter has been carried forward to the closing chapters of the volume, so that readers who are afraid of being injured by it may stop when those chapters appear. Descending now a little into detail, the most obvious consequence of arranging this entire one subject into one condensed work appears in its larger collection of legal doctrine than would otherwise have been possible within the same space. If, for example, we turn to the title Assault and Battery, or False Imprisonment, or Malicious Prosecution, or Slander and Libel, or any other of the like old titles in the law, each deemed of itself sufficient for a volume, we have in the chapter what is special to it; and in other chapters of this volume we have what, if those titles were treated as separate subjects, would require to be repeated as many times as there were subjects. And the avoid- ance of these repetitions is a vast economy of space. Beyond which, the condensed style of treatment pro- duces greater brevity than is apparent to one who has not given the matter a special and careful consideration. What is thus stated is simply an obvious aspect of VI PREFATORY EXPLANATIONS. the manner in which I have endeavored to render plain, in one volume, the great and wide one subject to which it is devoted. The reader who is familiar with our law treatises will discover other aspects, of which it is not necessary particularly to speak. How far this sort of condensation is practicable in legal elucidations generally, I do not undertake to say. I have done in this volume what seemed to me judi- cious, within the measure of the capacity which God has given me. What are the abstract bounds, or what are the practical ones for any other author, I do not know. One of the bounds which I have never been able to pass, pertains to the Index of Subjects. I can discover no way of so constructing an index that it will be no longer for a condensed than for a diffuse text. In the present instance, I have made the section heads serve the double purpose of helping the reader to the con- tents of the sections, and of constituting specifications under the italic lines, as explained in the introductory note to the Index. In this way, a large part of the space commonly occupied by our indexes is saved. As for the rest, I have avoided needless words and titles. I do not claim that in the present index there is abso- lutely nothing which could not have been omitted; but, beyond having it printed in the most compact form consistent with convenience in the use, I was without ability to prevent its extending over more pages than are commonly regarded as sufficient for a text of the like dimensions. I cannot forget that, for the every-day use of the practitioner, a thing not indexed is not in the book. And so copious is our language that no set of index-heads is possible to be arranged, of such sort that each searcher will know at PREFATORY EXPLANATIONS. vii once for what word to look. I cannot better illustrate this than by an incident which occurred some years ago. From the Supreme Judges in one of our States I received a letter saying that a particular question within the range of my writings was giving them immense trouble. My book, on a careful search, had been found to contain nothing relating to it; and they asked me for any views or references which I might be able to supply. Being very desirous to assist them, I looked anxiously to see whether there was not, in my book, what had escaped their notice. Though it did not contain every case, I could see that if the Reports as published at the time when the last edition was prepared had so much as a single case on the par- ticular topic, its conclusion was stated and the case was cited. To the extent of my ability, consulting every index word I could think of, then looking through the book and tracing the entire subject in the order of its minor topics, I carried on the search until I became absolutely assured that this matter was not there. Afterward, in making a new edition of the book, I found that this matter was in it, sustained by cited cases, and indexed. It stood in its right place, and the index word was the right one ; both of which proposi- tions being so plain that no mortal, competent or not, would deny either. I know that not everything in the present work can be found through its index. Still I made it in person, as I do the index of every book which I write. And, conscious of its great importance, I did the best I could. J. P. B. Cambridge, April, 1889. CONTENTS. BOOK I. FUNDAMENTALS. Chapteb Section I. Outlines and Divisions ......... 1-8 11. The Foundation Principles 9-19 III. How THE Fundamental Peinciples are Techni- cally Limited 20-79 § 20, 21. Introduction. 2^34. Wrong and Injury must combine. 35, 36. Their Bequisite Magnitude. 37-39. Must be Cause and Effect. 40-48. Proximity of Effect to Act. 49-53. Consent or Waiver. 54-65. Merits or Demerits of Party complaining. 66-69. Limitations from Procedure. 70, 71. The Tort being also a Crime. 72-78. Being also a Breach of Contract. 79. Doctrine of Chapter restated. IV. The Nature and Methods of the Principles . 80-90 BOOK 11. MORE MINUTELY OF SOME PARTICULAR PRINCIPLES. V. Governmental Control of Person and Property 91-96 VI. One's Right to deal as he will with his own Person, Property, and Interests ..... 97-109 X CONTENTS. Chafteb Section VII. Doing what the Law Pekmits ob Eequiees 110-121 VIII. DlSCHAEGING THE SoCIAL DuTIES 122-130 IX. Disobeying the Law 131-141 X, Wilfully Injuring Othees 142-147 XL Caeelessly Injuring Othees ..;.... 148-154 XII. Necessity and the Inevitable 165-185 § 155. Iptroduction. 156-165. Doctrine of Necessity in General. 166-172. Superior Forces of Nature — Act of God. 173, 174. Superior Human Forces. 175. Interpositions of Law. 176-184. Common Accidents of Life. 185. Doctrine of Chapter restated. BOOK III. WRONGS WITH PARTICULAR NAMES. XIII. Assault and Batteey 186-204 § 186-188. Introduction. 189-197. What constitutes. , 198-200. The Defences. 201-203. Rights of Third Persons. 204. Doctrine of, Chapter restated. XIV. False Impeisonment 205-217 XV. Malicious Peosecution 218-250 § 218, 219. Introduction. 220-230. General Doctrine. 231-237. The Malice. 238-242. Want of ProbaUe Cause. 243-245. In what Gases. 246-249. After what Steps. 250. Doctrine of Chapter restated. XVI. Slandee and Libel 251-311 § 251. Introduction. 252-257. General Doctrine. 258-277. Oral Slander. 278-286. Written, or Libel. 287-310. The Justifications and Defences. 811. Doctrine of Chapter restated. CONTENTS. XI Chapter Section XVII. Deceit 312-343 § 312. Introduction. 813-317. In General. 318-821. As to what Things. 322-382. On what Representation. 333-337. What Believing and Acting on Representation. 338-342. Nature of Damage. 343. Doctrine of Chapter restated. XVin. Slastdek of Title 344-352 XIX. CoNSPiEACT 363-362 XX. Seductions 363-388 § 363. Introduction. 364-867. General Doctrine. 368-372. Enticing away Servant or Employee. 373-377. Enticing away a Minor Child. 378-384. Immorally Seducing Female Servant. 385-387. Other Seductions of Women. 388. Doctrine^ of Chapter restated. XXI. Trespass to Peopeett 389-395 XXII. COSTTEKSION OF GooDS 396-408 XXin. Nuisance 409-432 § 409, 410. Introduction. 411-422. In General. 423-426. Some Particular Kuisances. 427-431. Something of Remedy. 432. Doctrine of Chapter restated. XXIV. Negligence 433-484 § 433, 434. Introduction. 435-449. General Doctrine. 450-453. Negligence combining with other Causes. 454-457. Proximate and Remote Effects. 458-470. Contributory Negligence. 471-473. Comparative Negligence. 474-477. Other Impediments to Suit for Injury. 478-483. In Particular Cases. 484. Doctrine of Chapter restated. XXV. Unnamed Weongs 485-494 XU CONTENTS. BOOK IV. PARTICULAR SORTS OF PERSONS AND COMBININGS. Chapter Sectiok XXVI. The Elements of the Intent, Insanity, AND Drunkenness 495-516 § 495. Introduction. 496-504. Intent in General. 505-510. Insanity. 511-515. Drunkenness. 516. Doctrine of Chapter restated. XXVII. The Combinings of Persons and Foeces 517-536 XXVIII. Husband and Wife, Covektubb .... 637-543 XXIX. Parent and Child, Infancy 644-591 § 544. Introduction. 545-548. Restraints and Discipline of Infancy. 549-582. Parent's Liability for Torts of Child. 553-559. His Eights as to Torts to Child. 560-569. Liabilities of Infants for their Torts. 670, 571. Eights of Infants as to Torts suffered. 572-590. Negligence and Contributory Negligence. 591. Doctrine of Chapter restated. XXX. Teacher and Pupil 692-597 XXXI. Master and Servant 698-635 § 598. Introduction. 599-601. In General of Belationship. 602-607. Servant and Contractor distinguished. 608-616. When Master liable for Servant's Torts. 617-621. Servant's Negligence combined with Contributory. 622-630. Servant's Liability for Own Torts. 631-634. One's own Servant's Contributory Negligence. 635. Doctrine of Chapter restated. XXXII. The Master's Duties and Liabilities to THE Servant, Fellow Servants . . . 636-691 § 636. Introduction. 637-641. Doctrine in Outline. 642-657. Master's Non-assignable Duties. 658-660. Master's Assignable Duties. 661-669. His Substitutes and Agents. 670-673. Fellow Servants. CONTENTS. XIU Cbaftsb Section 674-681. Servant taking Risks, his Contributory Negligence. 682-686. Liabilities of Master. 687. Liabilities of Servants to One Another. 688-690. Statutory Modifications of Doctrines. 691. Doctrine of Chapter restated. XXXni. Fbiitcipal and Agent XXXIV. Pebsons assuming Speciai Skill § 697. Introduction. 698-703. In General 704^707. Lawyers. 708-715. Physicians and Sniigeons. 716. Apothecaries. 717. Doctrine of Chapter restated. 692-696 697-717 XXXV. COEPOEATIONS § 718. Introduction; 719-734. General Doctrine. 735-737. Business Corporations. 738-765. Municipal Corporations. 766-768. Other Corporations. 769. Doctrine of Chapter restated. 718-769 XXXVI. Official Pebsons 770-798 § 770. Introduction. 771-774. In General. 775-778. Legislative. 779-784. Judicial 785-790. Quasi Jadiciai. 791-797. Ministerial. 798. Doctrine of Chapter restated. BOOK V. RIGHTS AND LIABELITIES PERTAINING TO PAR- TICULAR PLACES AND THINGS. XXXVn. Lands, Buildings thebeon, and I^ces 799-860 § 799. Introduction. 800-812. Uses and Manner of Fencing. 813-818. Buildings and how they Protect 819-825. One's Use and Abuse of Another's Realty. 826-859. One's Use and Misuse of Own Bealty. 860. Doctrine of Chapter restated. XIV CONTENTS. Craftkb Section XXXVIII. Easements and Servitudes .... 861-925 § 861. Introduction. 862-865. In General. 866-876. Private Ways. 877-903. Under and Upper Waters. 904-919. Partitions and Supports. 920-924. Light and Air. 925. Doctrine of Chapter restated. XXXIX. Personal Chattels 926-941 XL. Private Defence of Self and Prop- erty 942-946 XLI. Public Wats 947-1022 § 947. Introduction. 948-956. In General of Subject. 957-988. Establishing and Repairing. 989-1001. Owners and Dwellers along. 1002-1004. Third Persons Injuring. 1005-1021. Eights and Wrongs in Using. 1022. Doctrine of Chapter restated. BOOK VI. LOCOMOTION OF PERSONS AND THINGS. XLII. The Equipping and Running of Rail- EOADS 1023-1033 XLIII. Going upon and Crossing RIileoads 1034-1054 § 1034. Introduction. 1036-1038. Trespassing on Track. 1039-1049. Rightfully Crossing. 1050-1053. Further Expositions. 1054. Doctrine of Chapter restated. XLIV. Travelling by Rail 1055-1116 § 1055. Introduction. 1056-1065. General Liabilities as Passenger Carriers. 1066-1071. Servants and Imputed Negligence. 1072-1084. Tickets and Bargainings about Fares. 1085-1109. Travel and its Bights and Obligations. 1110. Connecting Lines. 1111. Third Persons, &c. Injuring Passengers. 1112-1114. Sleeping and Palace Cars. 1115. Doctrine of Chapter restated. CONTENTS. SV Chapter Section XLV. Tbavelus-g by Street Caes . . . . 1116-1126 XLVI. Tbatelling by otheb Public Contet- ANCE 1127-1141 § 1127, 1128. Introduction. 1129-1135. By Land. 1136-1140. By Water. 1141. Doctrine of Chapter restated. XLVII. TKAVELLiNe by Private Conveyance AND ON Toot 1142-1149 XLVni. Bagga^ 1160-1163 § 1150. Introduction. -' ~ ~ 1151-1153. General Doctrine. 1154-1162. Specific Questions. 1163. Doctrine of Chapter restated. . ZlilX. Hotels and Boaeding-houses . . . . 1164-1183 § 1164. Introduction. 1165-1181. Hotels or Inns. 1182. Boarding-houses. 1183. Doctrine of Chapter restated. L. Sending Paecels 1184-1193 LI. Mail, Telegraph, and Telephone Com- munication 1194^-1214 § 1194. Introduction. 1195-1202. Communication by Mail, 1203-1212. By Telegraph. 1213. By Telephone. 1214. Doctrine of Chapter restated. BOOK VIL SPECIAL TOPICS AND IN REVIEW. LII. Injuries by and to Animals .... 1215-1232 § 1215, 1216. Introduction. 1217-1219. Transportation of Animals. 1220-1229. Eights and Liabilities of Owners, 1230,1231. Wild Animals. / 1232. Doctrine of Chapter restated. XVI CONTENTS. CiUFTBB Section LIII. Specially of Dogs 1233-1241 LIV. HuNinfG AND Fishing 1242-1257 § 1242, 1243. Introdaction. 1244-12S2. Hnnting. 1253-1256. Fishing. 1257. Doctrine of Chapter restated. LV. Spoets, Pastimes, and Public Exhibi- tions AND Peefobmancbs 1258-1266 LVI. Death 1267-1274 § 1267. Introdnction. 1268-1270. At the Common Law. 1271-1273. Under Statutes. 1274. Doctrine of Chapter restated. LVIL Weongs out of the State oe Countet . 1276-1282 LVIII. The Docteine of this Volume eestated 1283-1299 LIX. Conclusions as to the Futuee of oue Law 1300-1306 LX. Conclusions as to Legal Eefoems and THEiE Influence on Goveenment . . 1307-1350 Paob Index to the Cases cited 641 Index op Subjects 717 THE NON-CONTRACT LAW. BOOK I. FUNDAMENTALS. CHAPTER I. OUTLINES AND DIVISIONS. § 1. Generally of Divisions. — The division of our law into various subjects, and of each subject into its particular titles and sub-titles, is matter simply of convenience to writer and reader ; it constitutes no part of the law itseH. The law is a seamless and partitionless whole. But it is a thing so vast that the mind can have no valuable comprehension of it, ex- cept in parts artificially separated from the mass for exami- nation and study. And every writer is entitled to make for himself the divisions best adapted to his particular methods and objects. Practically, in most instances, there will be dis- covered a common professional usage, which it will be most convenient for both writer and reader to follow. As to the subject of this volume, — § 2. Present Subject formerly. — Prom the beginning of our common-law jurisprudence down almost to the present day, there has not been any such commonly-recognized division of the law as that to which this volume is devoted. We read in the books of various forms of actions for violations of non- contract legal duties, and of classified civil wrongs of this sort. We had, as we still have. Assault and Battery, Slander 1 1 §3 FUNDAMENTALS, [book I. and Libel, Deceit, Malicious Prosecution, Trespass, and so on, all pertaining to minor divisions within the subject of this volume. § 3. Later — Tort. — In 1859 was published the first treatise on the " Law of Torts." i It was by Francis Hilliard.^ It was, as all know, an American book. The English Addison on Torts appeared in 1860. Since then tort has become to the profession as familiar a subject as contract. And the expression " The Law of Torts," when applied to this title of the law, has been largely accepted as signifying the same thing as " The Law of Contracts " when applied to its title. At the same time the word " tort " has not been otherwise much, if at all, bent from its original and proper meaning ; namely, — 1 Pollock, in his " Law of Torts," says that the first text-book on this sub- ject which he has "been able to find is a meagre and unthinking digest of ' The Law of Actions on the Case for Torts and Wrongs,' published in 1720, re- markable chiefly for the depths of his- torical ignorance which it occasionally reveals." Pref. p. vii. I think this book should be passed over as though it did not exist. ^ It was by publishers announced as in preparation some time before the day of publication, perhaps in the neighbor- hood of two years. I have just referred to an old catalogue containing an an- nouncement of it, dated in 1857 ; but I have not before me such earlier cata- logues as will determine whether or not this particular announcement was the first. From memory I can say that Addison on Torts, the first English pub- lication on the subject, was also an- nounced before it was published, but not until after the American announce- ment had appeared. I have some pretty distinct recollections regarding the in- troduction of this new title into our law. In 1853, after my "Marriage and Divorce " had appeared, and, urged by friends and publishers, I had deter- mined to write more books, I proposed 2 to publishers a book on the Law of Torts. Presenting the subject, first to one publishing house, and then to every other law-book publishing house in the United States, and explaining the na- ture of the subject and the need of a book upon it, I received from all the reply, that there was no call for a work on that subject, and there could be no sale for it. " If," said one, voicing the undivided opinion, "the book were written by the most eminent and popu- lar author who ever lived, not a dozen copies a year could be sold." I felt in- dignant at what seemed to me astound- ing stupidity, and expressed myself with no great restraint. Looking one day from my office window upon the street, in company with a legal friend, I said to him: "You see that man sweeping the street. Well, when I become too demented to swing a broom, I am going to set up in business ^ a great law publisher." By what means pub- lishers' eyes were first opened, so that they ventured a book on Torts, I have never learned. But I have always re- garded these facts as an instructive commentary on the popular idea that publishers can infallibly know in ad- vance what books will sell and what will not. CHAP. I.] OUTLINES AND DIVISIONS. § 6 § 4. Tort defined. — The word " tort " means nearly the same thing as the expression " civil wrong." ^ It denotes an injury inflicted otherwise than by a mere breach of contract ; or, to be more nicely accurate, a tort is one's disturbance of another in rights which the law has created either in the absence of contract, or in consequence of a relation which a contract had established between the parties.^ Of course the wrong must be of a sort which the law redresses, not a mere infraction of good morals. Therefore, — § 5. Compao-ed with Breach of Contract. — In precision of language, the werd " tort," when applied to its subject, signi- fies what the phrase " breach of contract " does in the law of contracts. So that the law of torts is, in truth, a mere sub- title in tlie non-contract law. And though practically the term " Law of Torts " has come to have a somewhat wider meaning with us, the author deems that to employ it as the title of the present work of still larger range would be inaccu- rate in language and misleading. Hence, — § 6. Kon-contract liaw. — The expression " Non-contract Law," qualified by the words which stand with it on the title- page of this work, has been selected for its name. Theoreti- cally open to some criticism, it is still believed to he the best which our language furnishes. Perhaps no one ever searched for a title in a case like this without a renewal of the old feel- ing, that human language is one of the imperfections of our earthly life. The greater part of our law, when accurately considered, is seen to be contract law. Such, for example, is most of the law of real property ; it is greatly tangled with technical rules, which limit the power of parties to bargain in relation thereto, but so also in a less degree is the law of con- tract as respects personal property. And stiU practically no reader expects to find in a book entitled " Contracts," an ex- position of real-estate law. One bearing this title may enter into the law of partnership, of bills and notes, of landlord and ^ Co. lit. 158 b. help him hy dting otheis from the * And see post, § 73-77. Giving books ; for, in this department^ they the reader these two definitions between do not abound in definitions of valne. which to choose, I do not see that I can 3 § 8 FUNDAMENTALS. £bOOK I. tenant, and of various other like things, or it may limit itself to the more general principles, as the author chooses ; there being no usage determining this question. And it is not quite possible that any title shall define with certainty the bounds which the author may have assigned for his subject. In the present instance the title of this volume approaches as nearly to such defining as the author was able to make it. § 7. Procedure. — The law of pleading, evidence, and prac- tice, collectively termed the law of the procedure, is a separate department ; and usage permits an author to treat it as one subject or three as may suit his convenience. Or it may be dealt with as a branch or branches of the substantive law. It will not be discussed, except now and then incidentally, in the present work. § 8. Minor Divisions. — The minor divisions of this work will sufiiciently appear as we proceed. They are made, not to fit any theory, but for practical convenience, and for practical effect upon the reader's comprehension of the subject. 4 CHAP. n.J FOUNDATION PRINCIPLES. § H CHAPTER n. THE FOUNDATION PEINCIPLiS. § 9. wliy this Exposition. — However far we proceed in interpreting and reconciling the reported cases on the subject of this volume, there will still remain contrarieties of decision not thns removable. Beyond which, in the judicial language, we shall discover differences of mere opinion, and unsettled doubts. And among doctrines apparently established, — or, at least, not dissented from, — are some, perhaps, contrary to just principle. Herein this department of the law does not differ greatly from the otliers, yet it calls for juridical culture. And it will be helpful in our attempts to discover the true path in these several classes of cases, to look first for the foundation principles upon which the entire subject rests. Not always, but in the greater number of instances, the self- evident larger truth wiU make plain how the particular minor question should be regarded. Moreover, if we would so learn what in the law is settled as to render it either abiding in our memories or of practical help in future causes, we must study it from its starting-places in fundamental doctrine. So that in every view this preliminary chapter wiU be helpful. Largely the principles are self-evident, requiring no authorities for their support. Thus, — § 10. The Right to Exist. — Every person is entitled to live as long as, without feeding on his fellows or otherwise injur- ing them, he can. This is a self-evident truth. Hence, — § 11. Active — Do as WiU. — As no man can live by simply sitting down and breathing, every one has the right to be con- stantly active. And as necessarily each one is moved by im- pulses from his own mind, not another's, all are permitted to 5 § 13 FUNDAMENTALS. [BOOK I. obey, because they must, their several wills. The consequence is that, while one abstains from the purpose to injure another and, beyond this, is careful to avoid such injury, he cannot be called to account though an unintended harm results to the other. If the wind blows down a tree, the man alone on whom it falls must die ; a neighbor, half a mile away, is not required to die with him. The falling of the tree is in law termed a visitation from God. So in society, men stand side by side ; and, if the rightful and not incautious act of one casu- ally brings harm to another, he who in doing it no more meant the harm than did the tree is not responsible ; this, too, is a visitation from God. Were a man compellable to pay dam- ages for what he rightfully and carefully did, when another casually suffered therefrom, he would not possess the priv- ilege of governing himself and his destiny. And while this restraint injured him directly, it would bring indirect detri- ment to the race. Better is it for all that the law should keep the other vigilant by stimulating him to look out for himself. This doctrine, if not absolutely self-evident like tliat of the last section, is so nearly so as to require no authority for its sup- port. Again, — § 12. Accumulate Property. — Each individual has the nat- ural right to the fruits of his own labor. Therefofe, if one has not occasion to use all to-day when he is well, he may lay up the surplus for to-morrow when he may be sick. Or, to express the idea more largely, every person has the right to accumulate property. Consequently — § 13. Interfering with Another's Property. — No one is per- mitted to take and use what is another's without his consent. So that, if two persons have property lying side by side, the law must respect and support the division line. The result whereof is that, if one of them appropriates to himself, how- ever honestly, what is the other's, the latter has a cause of action against him. Without this rule there would be con- fusion of estates, and ownership would be obliterated. This rule is not in fact, however one's first impression of it may be, antagonistic to what is said in the section before the last. The right of redress for an unintended trespass does not con- 6 CHAP, n.] FOUNDATION PRINCIPLES. § 15 flict with one's right to pursue his own happiness and do what he will with his own. Dealing with one's neighbor's estate and dealing with one's own are two dissimilar things.^ Once more, — § 14. Limit of Use of Own. — Among people living together on our crowded earth, there are necessarily more or less rights and interests of person and property in a measure de- pending upon one another. Two men, for example, own land lying side by side ; and the division line extends downward, as the books express it, " to the centre of the earth." Now, it is not neccessary to any reasonable use of the land of one of them that he should dig and carry it away as far down as the earth's centre, were there mechanical inventions enabling him to do it ; thus ruining his neighbor's land, which would fall in and fill the space.^ And here we have an illustration of a universal principle; namely, that, as individuals and their ptoperty exist not only separately but also in a combined whole, there is a use legitimate, therefore permissible, for every man's exertions and estate ; but it is unlawful for one to employ either in a way to injure those parts of the com- bined whole which belong to others. In the complications of affairs the applications of this doctrine sometimes become diflScult, but the doctrine itself is, if not absolutely, yet prac- tically, self-evident. § 15. statutory Restraints. — These views show how it is that the government may and does, from time to time, enact new laws, adding to the common-law restrictions upon the people as to the employment of their exertions and their prop- erty. Without a statute, the general understanding of man- kind which, being judicially taken cognizance of by the courts, is enforced by them as law, puts upon the people many re- straints of this sort. But their exact, proper limits may not always be palpable to natural reason, or men may so differ as to particular restraints that they will not become common law, or manners and needs may change with time ; where- upon, in response to the public demand, legislation draws new 1 Post, § 30. » Transportation Co. «. Chicago, 99 U. S. 635, 645. 7 § 19 FUNDAMENTALS. [BOOK I. lines and fixes new bounds. This neither takes away the property of men nor makes them personally slaves ; it simply regulates the conduct of the individual for the good of that whole whereof he is a part. § 16. Wilful Injury — is a different thing. Though, as already explained, one who unintentionally does a casual harm to another may sometimes be exempt from liability to him, always he who means the injury is answerable in damages for what he inflicts, should it be of a sort and degree whereof the law takes cognizance.^ For if men were to employ them- selves in intentional mischief to one another, there would be an end of human well-being and happiness. We may here compare our civil jurisprudence with our criminal. Punish- ment, and not the redress of a private wrong, being the object of the latter, there can be no crime without an evil intent ; as, if one innocently believing that to be a fact which is not, does what the law makes lawful under such fact, but criminal under the unknown real circumstances, he is not punishable ; while, in civil jurisprudence, he will be suable or not accord- ing to the nature of the case.^ § 17. other Principles. — The foregoing are the chief funda- mental principles. There are inferior ones which enter more or less into the subject of this work. They will appear as we proceed. To present them here in connection with the great pillars of our structure would not, it is believed, be sufficiently helpful to compensate for the space required. § 18. Limits of Doctrine. — The fact that the foregoing principles are fundamental does not prevent their having, like all others in the law, their practical limits. Something of the limits will be explained in the next chapter. § 19. The Doctrine of this Chapter restated. The doctrine of private wrongs, other than breaches of con- tract, is traceable to a few obvious, foundation principles of natural right and justice ; not now speaking of minor ones, 1 Post, § 142 et seq. 2 1 Bishop Crim. Law, § 286-291, 301-310. 8 CHAP. IT,] FOUNDATION PRINCIPLES. § 19 not necessary to be here considered. With these principles the common law mingles some qualifying technical rules, de- rived from the nature of human jurisprudence, or from the practice of the particular tribunal. And statutes have added a few other rules qualifying the common law. The founda- tion common-law principles are, in substance, that every man is free to be active, pursuing his own interests and happiness and using his own property as he will, without being answer- able for casual and unmeant injuries resulting to others; provided, that he does not, even unintentionally, deal with another's prope^y as his own, that neither purposely nor carelessly does he so use his own as unnecessarily to pre- judice another, and that neither negligently nor especially from an evil motive does he harm another in person or repu- tation in a manner and degree within the law's cognizance. Thus qualified, for all wrongs done to others with injurious intent, even for all which proceed from indifference whether harm is done or not, and for all evil consequences to others which result from the doer's want of care in conducting his own affairs, he is answerable to the sufferer. In the nature of things, these general principles are not alone adequate guides for all possible cases ; but they enable us the more in- telligently to. trace the minuter lines which judicial decision has drawn, and to determine the true law where the adjudica- tions differ or otherwise there is doubt. 9 § 21 FUNDAMENTALS. [BOOK I. CHAPTER III. HOW THE FUNDAMENTAL PRINCIPLES AEE TECHNICALLY LIMITED. § 20, 21. Introduction. 22-34. Wrong and Injury must combine. 35, 36. Their Requisite Magnitude. 37-39. Must be Cause and Effect. 40-48. Proximity of Effect to Act. 49-53. Consent or Waiver. 54-65. Merits or Demerits of Party complaining. 66-69. Limitations from Procedure. 70, 71. The Tort being also a Crime. 72-78. Being also a Breach of Contract. 79. Doctrine of Chapter restated. § 20. Law Practical — Hence Limitations. — The law is a practical science. Resting in fundamental doctrines of right and truth, it takes cognizance also of the relations and neces- sities of practical life. And it interferes with the affairs of men, and redresses wrongs, not to the full extent which the Deity is supposed to do, but only so far as the exigencies of human government require. These observations and the mat- ter of this chapter are only in part special to the subject of this volume, in part they concern equally the entire law. Therefore, and because illustrations of the propositions to be here laid down will appear in appropriate places throughout the work, it will not be necessary to extend the elucidations of this chapter much into detail. § 21. What for Chapter and how divided. — We shall con- sider, I. The Combining of Wrong and Injury; II. Their Required Magnitude ; III. They must be to each other Cause and Effect; IV. The Proximity of the Effect to the Act; V. Consent or Waiver ; VI. The Merits or Demerits of the 10 CHAP. III.] HOW TECHNICALLY LIMITED. § 25 Party Complaiuing ; VII. The Limitings of Doctrine by the Procedure of the Courts ; VIII. The Tort being also a Crime ; IX. Being also a Breach of Contract. I. The Combining of Wrong and Injury. § 22. Defined. — For the law to furnish the redress we are considering, there must be an act which under the circum- stances is wrongful, and it must take effect upon the per- son, the property, or some other legal interest of the party complaining. N§ither one without the other will suffice.^ Thus, — § 23. In Conspiracy. — Though a mere conspiracy ^ of two or more persons to injure another is a wrong, and it may be even indictable before any step is taken under it,^ yet it is an actionable civil tort only when the complaining party has suf- fered therefrom.* Again, — § 24. In Slander. — If one utters words of another slander- ous per se, in his hearing alone, or in a foreign language not known by the only other persons present,* or if the words are not understood by the hearers in the evil sense meant,® there is no tort because no injury. On the other hand, — § 25. Run Over. — One who suffers from being run over in the highway by another's horses, in a case where the latter is not in fault, can recover nothing of him ; because here is simply damage on the one side without wrong on the other.^ Once more, — 1 Phaiibrown v. Eyland, 8 Mod. ' 2 Bishop Grim. Law, § 171, 181, 351, 353 ; Cowper v. Andrews, Hob. 39, 185, 192, 197. 43 ; Smith v. Bowler, 2 Disney, 158 ; * Post, § 356 ; Bishop Con. § 521 ; Occum Co. V. Spragne, &c. Co. 34 Conn. Savill v. Roberts, 1 Ld. Raym. 374, 378, 529 ; Chatfield v. Wilson, 28 Vt. 49 ; 1 Salk. 13, 3 Salk. 16, 5 Mod. 394. McEndre v. Piles, Litt. ^el. Cas. 101 ; 6 Broderick v. James, 3 Daly, 481, Morgan v. Bliss, 2 Mass. Ill ; Nichols 484 ; post, § 286. V. Valentine, 36 Maine, 322 ; Estey v. * Myers v. Dresden, 40 Iowa, 660. Smith, 45 Mich. 402, 404 ; Qninlan v. As to which, there appears to be some Sixth Ave. Kid. 4 Daly, 487 ; Parker contrariety of opinion. Post, § 277. V. Wilmington, &c. Eld. 86 N. C. 221, ' Quinlan v. Sixth Ave. Eld. 4 Daly, 227, 229 ; Kex v. Fagham, 8 B. & C. 487. And see Meyer v. Midland Pacific 355, 362. Eld. 2 Neb. 319. * Post, § 353 et seq. 11 § 81 FUNDAMENTALS. [BOOK I. § 26. Injury Legal — Persuading to Revoke 'WiU. — The in- jury must be of a sort whereof the law takes cognizance : as, if one has made a will in my favor, and another deceitfully persuades him to revoke it, I can have no action against him ; since I was deprived only of a gift, not injured in any legal right.^ In like manner — § 27. Advice. — The" act of wrong must be of a sort within the law's cognizance ; as, if one gives another gratuitous ad- vice, he is not responsible for ill which may come from follow- ing it.2 A somewhat different illustration is that of — § 28. Receiving One Escaped. — If one arrested on civil process escapes from the officer, another who afterward with- out complicity in the escape receives him, is not liable to the creditor ; for, before the receiving was done, the rights of the parties had become fixed, the officer made liable, and from this further act the creditor has not suffered.^ § 29. Nature of Injury. — The required nature of the injury will depend on the sort of case. Thus, — § 30. Trespass to Property. — As suggested in another chapter,* the law must and does give its utmost protection to property rights. Therefore a trespass, or any other analogous interference, done by one to any sort of property of another, however innocent the act, and however void of detriment ap- preciable in dollars and cents, is an injury for which the law will give at least nominal damages. The doer's mere wrong- ful contact with the thing legally suffices ; and, though the complaining party may show more if he can, it will be only to increase the verdict.^ This rule applies to — § 31. Every Right — (Slander — Vote). — A wrong done to any tangible right recognized by the law imports injury ; and^ where only such wrong with no actual injury is shown, the 1 Hutchins v. Hutchins, 7 Hill, N. Y. Blanchard v. Baker, 8 Greenl. 253 ; 104. White v. Griffin, 4 Jones, N. C. 139 ; " McCausland v. Cresap, 3 Green, Woodman v. Tufts, 9 N. H. 88 ; Hol- lowa, 161. lins v. Fowler, Law Rep. 7 H. L. 757 ; ' Seehora v. Darwin, 1 Tread. 196, Williams ti. Esling, 4 BaiT, 486 ; Stow- 198, 3 Brev. 282. ell v. Lincoln, 11 Gray, 434 ; Munroe * Ante, § 13 ; post, § 101, 819. ■». Stickney, 48 Maine, 462 ; Champion 6 Tillotson V. Smith, 32 N. H. 90 j v. Vincent, 20 Texas, 811. 12 CHAP. III.J HOW TECHNICALLY LIMITED. § 35 party may have, at least, nominal damages in vindication of the right.i For example, slander by words actionable jper se justifies a verdict for damages though none are specifically proved.^ And election officers, in any manner depriving of voting one who is entitled to vote, are civilly answerable to him ; ^ though, by some opinions, and in some of our States, to render them so, their functions being deemed judicial, their actions must be also malicious.* In cases of another sort, — § 32. Actnal Damage. — Where there is not even a technical disturbance of a right, though there is a wrong, there is noth- ing to redress. Jn such a case, until the wrong has pro- gressed to actual damage, the tort is incomplete, and no action for it can be maintained. Thus, — § 33. Frand. — Though fraud is a wrong, one on whom it is practised can recover nothing therefor until it has injured him,^ or disturbed some right of his.® And — § 34. Negligence — gives no action to one menaced thereby, until he has suffered.^ n. The Required Magnitude of the Wrong and Injury. § 35. The Doctrine — of this sub-title is embodied in the maxim, De minimis non curat lex, the law does not concern itself about trifles.* In another work,^ the author explained the effect of this doctrine in the criminal law. It is Ln sub- 1 Embrey v. Owen, 6 Exch. 358 ; Eeenan v. Cook, 12 R. I. 52 ; Jenkins Whipple V. Cumberland Manuf. Co. 2 k. Waldron, 11 Johns. 114, 120 ; Butler Story, 661 ; Bagby v. Hanis, 9 Ala. v. Kent, 19 Johns. 223, 229 ; Harman 173 ; Paul v. Slason, 22 Vt. 231 ; Cory v. Tappenden, 1 East, 655. «. Silcox, 6 Ind. 39 ; Wright ». Stowe, ' Bish v. Van Cannon, 94 Ind. 263 ; 4 Jones, K. 0. 516 ; Little v. Stanback, Parker r. Armstrong, 55 Mich. 176 ; 63 N. C. 285; Bassett v. Salisbury Dudley o. Briggs, 141 Mass. 582 ; Fuller Manuf. Co. 8 Fost. N. H. 438 ; Webb v. Robinson, 86 N. Y. 306 ; Wittich v. V. Portland Manuf. Co. 3 Sumner, 189. Fensacola Bank, 20 Fla. 843 ; Freeman * Yeates v. Reed, 4 Blackf. 463. v. Venner, 120 Mass. 424. ' Ashby V. White, 2 Ld. Baym. » Blofeld ». Payne, 4 B. & Ad. 410 ; 938 ; Larned v. Wheeler, 140 Mass. Marsh v. Billings, 7 Cnsh. 322 ; Thom- 390 ; Bacon v. Benohley, 2 Cush. 100 ; son v. Winchester, 19 Pick. 214. Green e. Shumway, 39 N. Y. 418 ; ' Mnsser v. Maynard, 55 Iowa, 197. Goetcheus v. Matthewson, 61 N. Y. ' Broom Iand. — If One invltes or permits another to come upon his land,* or gives a village leave to discharge its sewage thereon," or by not objecting suffers another to come into his house,® he cannot complain of the act as a tres- pass. So — § 51. Seduction. — A husband cannot rely upon that, as a 1 Loweiy o. Manlrattan Ry. 99 If . Y. 373 ; Seale o. Gulf, &c By. 65 Texas, 158. And see Aldrich v. Gorham, 77 274. Maine, 287 ; McBonald e. Snellin^ 14 » Broom Leg. Max. 2d ed. 201. Alien, 290 ; Alabama Great Sonthem ' Owens c. Lewis, 46 Ind. 488 ; Rid. V. Chapman, 80 Ala. 615 ; Adams Sweetser r. Boston, &c. Rid. 66 Maine, «. Yonng, 44 Ohio State, 80. 583 ; Dingley e. Buffom, 57 Maine, 379 ; * Loweiy «. Western Union TeL 60 Wheeler v. Meshin^omesia, 30 Ind. N. Y. 198. And see Beiper r. Nichols. 402. 31 Hon, 491 ; Hoag r. Lake Shore, * Searing v. Saratctga Springs, 39 &C. Bid. 4 Honis, Pa. 293 ; Penn- Hnn, 807. sylvania Rid. o. Hope, 30 Smith, Pa. » Cutler v. Smith, 57 ID. 25i. 21 § 56 FUNDAMENTALS. [bOOK I. seduction of his wife, to which he has either expressly or im- pliedly consented.^ Likewise — § 52. Deceit. — A thing done by one under a fair agree- ment with another cannot be the foundation of an action of deceit by the latter .^ § 53. This Doctrine — is in form multitudinous, and it ex- tends through the entire law.^ Waiver is simply a particular sort of consent. We shall see illustrations of the doctrine in every part of this volume. VI. The Merits or Demerits of the Party Complaining. § 64. Axioms. — Instead of searching under this head for a Latin maxim, let us look among the axioms of juridical reason. Since the business of the courts is to enforce obedi- ence to the law, they cannot lawfully assist a suitor in any effort to break it. At the same time, a man's being a sinner, whether against the divine law or the human, does not author- ize another sinner to maltreat him. So that, in an action of tort, a bad man stands on the same footing as a good one; but neither can have judicial assistance in breaking the law, or compensation for having broken it, or a refund of what he has expended in its breach. Thus, — § 55. Indemnity or Pay for Wrong. — One who commits either a civil trespass or a crime, knowing it to be such, can recover neither a promised indemnity nor pay from a third person.* But a doer not aware of the unlawfulness, — being, therefore, personally without fault,^ — may recover.^ So, — § 56. Contribution between Joint 'Wrong-doers. — If two or more persons combine to do any illegal thing, knowing it to be such, neither can maintain a suit against the other to en- force contribution for what he has been required to pay,^ or 1 Wyndham v. 'Wyconibe, 4 Esp. 16 ; 6 Bishop Cou. § 481-484. Rea V. Tucker, 51 111. 110. ^ Stone v. Hooker, 9 Cow. 154 ; 2 Peacock v. Terry, 9 Ga. 137. Coventry v. Barton, 17 Johns. 142. » 1 Bishop Grim. Law, § 255-263, ' Herr v. Barher, 2 Mackey, 545 ; 995-998 ; 1 Bishop Crlm. Proced. § 117- Miller v. Fenton, 11 Paige, 18 ; Camp- 126 ; Bishop Con. § 777, 789-808, 1299. heU v. Phelps, 1 Pick. 62, 65 ; Vose v. * Cumpston v. Lambert, 18 Ohio, 81. Grant, 15 Mass> 505, 521; Peck v. Ellis, 22 CHAP, m.] HOW TECHNTCAUiY LIMITED. § 59 to establish any otfier like equity .^ But where the violation of law was not intentional, contribution may be compelled.^ Within which principle, a master who, not being personally in fault, had to pay for the negligence of a servant in his ab- sence, may recover the proper proportion against one who was jointly liable with him.^ In like manner, — § 57. Seduction. — A woman who immorally yields to her seducer cannot have her suit against him for the damages suffered ; because, however her will was overcome by his allurements, she finally participated with him in the wrong whereof she compljiins.^ But her father, if he was innocent, and she was his servant, can maintain the suit;^ yet not if he connived at the wrong.^ For example, one is without redress who permits a man known by him to be married to visit his daughter as her suitor, though such suitor seduces her.'' On a like principle, — § 58. Immoral Book pirated. — There can be no valid copy- right of a book libellously immoral, for the law will not pro- tect one in violating law. And the author of such book can maintain no action against a publisher who has pirated it ; since, besides the plaintiff's having no copyright, his claim is founded as well on his own violation of law as on the defend- ant's, and he simply asks the court to assist him in an enterprise of law-breaking.^ § 59. Umits of Doctrine. — The limits of this sort of doc- trine are, upon the authorities, a little shadowy, and at places 2 Johns. Ch. 131; Moore v. Appleton, 26 are States in which this rule has heen Ala. 633; Minnis v. Johoson, 1 Dqt. changed by statute. Wilsono. Shepler, 171 ; Acheson r. Miller, 18 Ohio, 1 ; 86 Ind. 275 ; West r. Dmff, 55 Iowa, Shea r. White, 3 Head, 121 ; Andeison 333 ; post, §386. V. Saylois, 3 Head, 551 ; Menyweather » Posl^ § 378-384 ; I^wrence ». V. Nixan, 8 T. E. 186. Spence, 99 N. Y. 669 ; Felt v. Amidon, 1 MltcheU V. Cockbnrae, 2 H. BL 43 Wis. 467 ; Lnnt v. Philbrick, 59 379; Peacock v. Terry, 9 Ga. 137 ; X. H. 59; Pence v. Doder, 7 Bush, HiLs V. Western Bank, 10 Cnsh. 22. 133 ; HndMns ». Haskins, 22 W. Va. » Thweatt v. Jone^ 1 Rand. 328 ; 645 ; Bennett v. AUcott, 2 T. R 166. Pearson v. Skelton, 1 M. & W. 504. « Post, § 379. « Wooley r. Batte, 2 Car. & P. 417. ' Reddie v. Scoolt, Peake, 240. * Paul r. Frazier, 3 Mass. 71 ; ' Stockdale ». Onwhyn, 5 B. & C. Thompson ■;. Young, 51 Ind. 599 ; 173, 2 Car. & P. 163 ; Lawrence ». Cline f. Templeton, 78 Ky. 550 ; Ham- Smith, Jacob, 471. ilton V. Lomaz, 26 Barb. 615. There 23 § 61 FUNDAMENTALS. [BOOK I. the decisions are in discord. In just legal principle the true view is believed to be, that, where one is seeking the help of the court in doing a wrongful thing, or compensation for hav- ing done it, or redress for another's having participated with him in it, or where in any other manner compliance with his prayer would involve an affirmance of his wrong as though it were a right, his suit will be rejected. For should the court grant what he asks, it would thereby in effect join with him in breaking the law it was established to maintain.^ But where the defendant's wrong, however it may seem to lie in juxtaposition to the plaintiff's, exists separate from it, the action is maintainable.^ There are cases under the facts whereof this distinction may be a little obscure, but in the nature of the question it is believed not to admit of a plainer one. Thus, — § 60. Plaintiff's Trespass combining vrith Defendant's VTrong. — If, without invitation or enticement but purely in trespass, one puts himself upon the land or into the vehicle of another, and is there injured through some mere negligence of the latter, so that the injury flows from a coalescing of the two wrongs, and not from the disconnected action of the party trespassed upon, there can be no recovery ; the plaintiff being a participant with the defendant in the combination of things of the result whereof he complains.^ For example, if an owner of private lands leaves unguarded a dangerous place, and a trespasser is harmed by contact with it,* or if the neg- ligent running of a railroad train injures one who is upon it without right,* the party suffering can recover nothing of the oth«r. And there are multitudes of other cases within this principle.® But, — § 61. Disconnected Wrong of Defendant. — Though one may 1 Ante, § 54. 48 ; Toledo, &c. Ky. v. Beggs, 85 111. " Stallings o. Owens, 51 111. 92. 80 ; peat, § 1094. » 2 Bishop Mar. & Div. § 75. « Baltimore, &c. Eld. v. Schwindling, * Hargreaves v. Deacon, 25 Mich. 1 ; 5 Out. Pa. 258 ; Carter v. Columbia, Lary 1). Cleveland, &c. Rid. 78 Ind. &c. Rlil. 19 S. C. 20 ; Everhart o. Terre 323 ; Gillespie v. McGowan, 4 Out. Pa. HantP, &c. Rid. 78 Ind. 292 ; Matze v. 144; post, §846. New York Cent. &c. Eld. 3 Thomp. & 6 Way I). Chicago, &c. By. 64 Iowa, C. 518, 1 Hun, 417. 24 CHAP, m.] HOW TECHNICALLY LIMITED. § 62 have wrongfully put himself upon the premises or in the power of another, he has not thereby made himself as to the other an outlaw ; and if the latter injures him by some dis- connected wrongful act, or by the disconnected omission of a duty which even in these circumstances lies upon him, the former may maintain his suit therefor.* For example, the remoring of a trespasser from a railway locomotive is a distinct thing from the running of it, and is not a mere neg- ligence ; therefore if, while the locomotive is going at a danger- ous speed, he is ejected from it and is run over, he may have his action.* And ^thin this doctrine may be gi'oss negli- gence in the running of cars.* We now come to a class of cases of considerable diflBculty. Thus, — § 62. Injury 'while violating Public Iiavtr — (^Sebellion — liord's Day). — During our Secession War, a Confederate ofiS- cer took cars to report to his superior, and was injured through the negligence of the road. If before peace the ease had been heard by a Confederate court, the complaining ofiBcer would have been rectus in curia. But the suit was brought after the suppression of the rebellion, and the reconstructed tribunal held that, the plaintiff and defendant being jointly violating the law when the accident occurred, there could be no recov- ery. " In the view of the courts of the present government," said Beade, J. '• the service in which the plaintiff was engaged was illegal. The act of going to the field of operations was illegal, and the contract of the defendant to aid him by carry- ing him to the field was an illegal contract ; and, upon the supposition that both parties were rebels, — the most favorable one for the plaintiff, — there can be no recovery."* Treason and Sabbath-breaking, the former being the highest offence known to the law, and the latter a violation of statutes often only penal, are in some particulars quite differently treated in our jurisprudence. But, as to the question before us, they 1 Illinois. &c Eld. b. Godfi«y, 71 IIL » Toledo, kc Ry. r. Beggs, 85 ni. 500 ; Bollard v. Molligan, 69 Iowa, 80 ; Keyser v. Chicago, &c. Ry. 56 416. Mich. 559. * Carter v. Lonisville, 4c Ry. 98 * Turner r. North Carolina Rid. 63 Ind. 552. N. C. 522, 525, 526. 25 § 64 FUNDAMENTALS. [BOOK I. are believed not to be distinguishable. And we have judicial authority which, in accord with the case just stated, holds that a person travelling on the Lord's day contrary to a stat- ute cannot recover, of the party carrying him, for an injury suffered through the latter's negligence.^ On this same line of reasoning it has been further held that one unlawfully trav- elling on the Lord's day, whether in another's vehicle or his own, and receiving harm from a defect in the road, can re- cover nothing of the corporation that should keep it in repair.^ And the courts which sustain this doctrine apply it also to analogous cases. ^ § 63. The Principle — on which cases of this class proceed is accepted by all, but there is a difference as to its applica- tion. If, as the judicial expression sometimes is, the " unlaw- ful act " of the injured party suing " was a contributory cause of the injury," * no tribunal, it is believed, would, while so re- garding it, sustain the action. But in another connection we saw that there is a distinction between the " cause " of a harm and the occasion whereof an independent force avails itself.* And the reader who examines the authorities on the present question will discover that the courts sustaining the doctrine of the last section look upon the violation of law as the cause, not simply as the occasion, of the injury. And plainly, if they are right herein, they are right in the conclusion at which they arrive. On the other side, — § 64. Contrary Authorities. — Other of our courts, it is be- lieved justly, look upon the violation of law in these cases, — for example, look upon an act of Sabbath-breaking, or of trav- elling to promote treason, — like the gust of wind spoken of at a preceding place,^ as the mere occasion, the opportunity, 1 BncLer v. Fitchburg Rid. 131 &c. Co. 134 Mass. 95 ; Day v. Highland Mass. 166. - Street Ey. 135 Mass. 118 ; Read v. Bos> 2 Cratty v. Baligor, 57 Maine, 423 ; ton, &e. Rid. 140 Mass. 199. Since Jones V. Andover, 10 Allen, 18 ; Bos- these Massachusetts cases were decided worth V. Swansey, 10 Met. 363 ; John- a statute has altered the rule. son V. Irasbnrgh, 47 Vt. 28 ; Holcomb * White b. Lang, 128 Mass. 598, 599. V. Danhy, 51 Vt. 428. 6 Ante, § 42. « Smith V. Boston. &e. Rid. 120 " Ante, § 43. Mass. 490; Wallace v. Merrimack River, 26 CHAP. III.] HOW TECHNICALLY LIMITED. § 64 the bringing of the parties and forces together, by reason whereof the act or neglect of the wrong-doer found itself in proximity to the person or thing injured. In another form of the expression, the plaintiff's violation of the law is not, in these circumstances, a necessary part of the case on which he relies for a recovery ; ^ but, when he put himself on board the cars, and was accepted as a passenger, so that he was not a trespasser,^ the defendant's duty arose to carry him safely ; ^ or, when he took to the highway in either a public or private travelling, the duty of the corporation to keep it in repair for the use of travellers was not suspended by the fact of the time being Sunday ; therefore the right of recovery is in no way affected by the plaintiffs collateral wickedness. Such is the result of the authorities on this reverse side of the question, though the reasoning may not be in all of them quite so.* Even in a State wherein the doctrine of the section before the last is adhered to, it has been held that one of two persons engaged in trotting their horses for money contrary to a stat- ute may maintain an action against the other for wilfully run- ning him down,® and that one unlawfully travelling on Sunday may recover for injuries inflicted by a dog for whose doings the defendant is responsible.® In these cases, the court looked upon the wrong of the defendant as disconnected from that of the plaintiff. In principle, is not the wrong of a town in neglecting to repair one of its highways, quite as distinctly disconnected from the wrong of a person who selects Sun- day for a journey upon it, which he ought to postpone till Monday ? 1 Fivaz V. NichoUs, 2 C. B. 501, 512 ; * Platz v. Cohoes, 89 N. Y. 219, 24 Simpson o. Bloss, 7 Taunt. 246. Hun, 101 ; Carroll v. Staten Island Eld. * Ante, § 60. 58 X. Y. 126 ; Piollet v. Simmers, 10 » "The right which a passenger by Out Pa. 95 ; Frost r. Plumb, 40 Conn. railway has to be carried safely does not 111 ; Knowlton v. Milwaukee City Ry. depend on his having made a contract, 59 Wis. 278 ; Sewell v. Webster, 59 but the feet of his being a passenger casta N. H. 586 ; Opsahl ». Jndd, 80 Minn. a duty on the company to carry him 126 ; Louisville, &c. Ry. t/. Frawley, SBfdy." Blackburn, J., in Austin v. 110 Ind. 18. Great Western By. Law Rep. 2 Q. B. » Welch v. Wesson, 6 Gray, 505. 442, 445, 446, referring to Marshall v. • White v. Lang, 128 Mass. 698. York, &c By. 11 C. R 655. 27 § 68 FUNDAMENTALS. [BOOK 1. § 65. Other Questions, — sufficiently connected with this sub-title to be properly enough considered in it, can be more satisfactorily elucidated at places further on, where they will arise, than here. The foregoing sections bring fully to view the principles of law involved in the entire subject. VII. The Limitings of Doctrine hy the Procedure of the Courts. § 66. Defined. — A right which the law acknowledges, while yet it has no procedure capable of giving it practical effect, is equivalent to no right. Thus, — § 67. Extraterritorial. — By a principle of private interna- tional law, our courts recognize and enforce rights acquired abroad when not inharmonious with our own law.' But it may happen that, for giving effect to a right of this sort, we have no adequate procedure. Thereupon it becomes practi- cally nuU.^ Again, — § 68. Among Ourselves — ^Trespass to Land^. — Our do- mestic rights are more or less modified or restrained by un- yielding judicial forms. For example, an action to recover damages is the remedy given by the common law for a tres- pass to lands. Thereupon, if a man who can be made to pay no damages commits such trespass, the owner has practically no common-law remedy. And ordinarily, for this sort of wrong there is no remedy in equity.^ Still, in cases of re- peated and continuous trespasses by insolvent persons, equity will interfere by injunction.* And there are various other circumstances in which tlie injunction will be awarded in re- straint of a threatened or impending trespass, but often an injured party is practically without remedy.^ » The Halley, Law Kep. 2 P. C. Wetl) v. Harp, 38 Ga. 641 ; Musselman 193 ; post, § 1277. v. Marquis, 1 Bush, 463. 2 Bishop Con. § 1403. 6 London, &c. Ry. v. Lancashire, &c. « Mulvany v. Kennedy, 2 Casey, Pa. By. Law Rep. 4 Eq. 174 ; Crompton r. 44 ; Thomas v. James, 32 Ala. 723 j Lea, Law Rep. 19 Eq. 115 ; McBrayer Tevis 0. Ellis, 25 Cal. 515 ; Duvall v. v. Hardin, 7 Ire. Eq. 1 ; More v. Mas- Waters, 1 Bland, 569. sini, 32 Cal. 590 ; Smith v. Rock, 59 * Gibhs V. McFadden, 39 Iowa, 371 ; Vt. 232 ; Hillmau v. Hurley, 82 Ky 626 28 CHAP, in.] HOW TECHNICALLY LIMITED. § 72 § 69. Other niustratioiis — might be given; but the prin- ciple is unquestionable, and a simple calling of the attention to it suffices for the present chapter. VIII. The Tort being also a Crime. § 70. In another 'Work, — the author has SO fully explained this subject that little need be added here.^ § 71. The Doctrine — in general terms is, that the civil wrong and the criminal are legally distinct things, though both may proceed fcom one act of the offender. If the injuiy is of a nature falling on the entire community, an individual suffering from it only as others do can maintain no action against the wrong-doer, even should it in degree casually press more heavily upon him than upon others.^ But he who suffers a special damage may have his suit, though by reason of the public harm the defendant is also indictable.^ IX. 2%e Tort being also a Breach of Contract. § 72. Blending. — There is, in the legal field, a not well defined space within which tort and contract mingle, or blend, or overlie each other, in ways partly plain and familiar, and partly obscure. Something of this is explained in the author's " Contracts." * Leaving out of view here such questions as the waiving of a tort and suing on a contract which the law creates,^ — 1 1 Bishop Crim. Law, § 264-278. Minneapolis, &c. By. 29 Minn. 41 ; » Compare WUder v. De Cou, 26 Mahady v. Bushwick Eld. 91 N. Y. Minn. 10 ; WiUard t». Cambridge, 3 148 ; Gifford v. McArthnr, 55 Mich. Allen, 574 ; Allen v. Freeholdeis. 2 535 ; Larson ». Furlong, 63 Wis. 323 ; Beasley, 68 : Platte, &c. Ditch Co. v. Potter v. Menasba, 30 Wis. 492 ; Grisby Anderson, 8 Colo. 131 ; Powell v. v. Clear Lake Water Co. 40 Gal. 396 ; Hunger, 91 Ind. 64 ; Beaudean v. Cape School District ». Neil, 36 Kan. 617. Girardeau, 71 Mo. 392 ; Pittsburgh, &c * Bishop Con. § 183-187, 216, 228. Eld. u. Jones, 1 Am. Pa. 204. ' lb. § 186, 782 ; Mississippi Cent » Garitee v. Baltimore, 53 Md. 422 ; Bid. v. Fort, 44 Missis. 423 ; Walker Egbert a. Greenwalt, 44 Mich. 245 ; o. Davis, 1 Gray, 506, 609 ; Cnmmings Wilder r. De Cou, supra ; Benjamin o. v. Koyes, 10 Mass. 433, 435, 436 ; Storr, Law Rep. 9 C. P. 400 ; Shirley Lightly v. Clouston, 1 Taunt. 112, 114 j B. Bishop, 67 Cal. 543 ; Brakken v. Foster v. Stewart, 3 M. & S. 191. 29 § 75 FUNDAMENTALS. [BOOK 1. § 73. Doctrine defined. — The doctrine of this sub-title is that, though a tort is a breach of a duty which the law ^ in distinction from a mere contract has imposed,^ yet the impos- ing of it may have been because of a contract, or because of it and something else combining, when otherwise it would not have created the duty.^ In such a case commonly, not descending now into minute distinctions, the party injured by the non-fulfilment of the duty may proceed against the other for its breach or for the breach of the contract, at his elec- tion.* Thus, — § 74. Carrier. — Because a common carrier, whether of goods or passengers, is a sort of public servant, the law im- poses its duties upon him, a breach whereof is a tort, though there is also a contract which is violated by the same act.^ And — § 75. other Bailments — Public Employment. — The same doctrine extends also to the other sorts of bailment.^ And, more broadly, "where there is a public employment from which arises a common-law duty, an action may be brought in tort, although the breach of duty assigned is the doing or not doing of something contrary to an agreement made in the course of such employment, by the party on whom such gen- eral duty is imposed." ^ Now, — 1 Riddle v. Proprietors of Locks, 7 ' Clark v. St. Louis, &c. Ry. 64 Mass. 169. Mo. 440 ; Hammond v. Northeastern 2 Ante, § 4. Eld. 6 S. C. 130 ; Southern Express v. " Langrldge v. Levy, 2 M. & W. McVeigh, 20 Grat. 264 ; Tattan v. Great 519 ; Collis v. Selden, Law Eep. 3 C. P. Western Ry. 2 Ellis & E. 844 ; Pozzi v. 495, 497 ; Blakemore v. Bristol, &c. Ey. Shlpton, 8 A. & E. 963 ; Collett v. 8 Ellis & B. 1035 ; Winterbottom v. London, &c. Ey. 16 Q. B. 984 ; Balti- Wright, 10 M. & W. 109 ; Cli£Ford v. more City Pass. Ey. v. Kemp, 61 Md. Denver, &c. Rid. 9 Colo. 333. 619 ; Ross u. Hill, 2 C. B. 877 ; Nich- * Stimpson v. Sprague, 6 Greenl. oils v. More, 1 Sid. 36 ; Eich v. Knee- , 470 ; Church v. Mumford, 11 Johns, land. Hob. 17, Cro. Jao. 330 ; Coggs v. 479 ; Boorman v. Brown, 3 Q. B. 511, 11 Bernard, 2 Ld. Raym. 909, 1 Salk. 26, CI. & F. 1 ; Bank of Orange v. Brown, 3 Salk. 11, 268. 3 Wend. 158 ; Stoyel v. Westcott, 2 ' Ferrier v. Wood, 4 Eng. 85 ; Stan- Day, 418, 422 ; Vasse v. Smith, 6 yon v. Davis, 6 Mod. 223, 225, Holt, Cranoh, 226 ; Eawson v. Dole, 2 Johns. 13. 454 ; Illinois Cent. Eld. ». Phelps, 4 ' Southern Express v. McVeigh, 20 Bradw. 238 ; Govett v. Radnidge, 3 Grat. 264, 284, by Anderson, J. ; Bona- East, 62 ; Burnett v. Lynch, 5 B. & C. fous v. Walker, 2 T. R. 126 ; Rawaon v. 589, 604. Dole, 2 Johns. 454. 30 CHAP, m.] HOW TECHNICALLY LIMITED. § 79 § 76. lamit — (Contract). — The doctrine is not, that the breach of any contract may at the election of the party in- jured be treated as a tort, but it is applicable only where the law casts its separate obligation.^ Yet, consistently with this proposition, a man may be answerable for a tort in negligently or unskilfully performing a duty which would have no exist- ence but for a contract, to the injury of the other party ; in which case, it is immaterial whether there was a considera- tion for the contract or not.* And if one drives a hired horse further than agreed, or in a different direction, he commits thereby the tort of a conversion, and becomes liable for any injury it may suffer or for its death ;^ the case being gov- erned, it is perceived, pai'tly by the contract and partly by the independent law. We have another illustration in a — § 77. Deceitful 'Warranty. — If a vendor, by fraud practised on a vendee, has sold what he at the same time warranted, — a case of simultaneous contract and tort, — the vendee may have his remedy either upon the practised deceit or upon the warranty, as he chooses.* § 78. other niustrations — will be more serviceable, in ap- propriate places, further on. § 79. The Doctrine of this Chapter restated. Every part of the law, including the subject of this volume, consists of principles limited by other principles. The limit- ing ones of this chapter are the chief of those which pertain to tort, but we shall discover some others as we proceed. If ^ Conrtensy a. Earle, 10 C. B. 73, wright, 5 Mass. 101 ; Lucas r. Trum- 15 Jnr. 15. bull, 15 Gray, 306 ; Homer v. Tliwing, * Gill V. Hiddleton, 105 Mass. 477 ; 3 Pick. 492 ; Woodman i-. Hubbard, 5 Scare V. Prentice, 8 East, 348 ; Norris Fost N. H. 67 ; Fish v. Ferris, 5 Doer, V. Staps, Hob. 210 6 ; Eex v. Eilderby, 49 ; Disbrow v. Tenbroeck, 4 E. D. 1 Saund. 311, 313. As bearing on the Smith, 397. question of the Heedlessness of the con- * Randall v. Raper, Ellis, 6. & E. sideration, it should be kept in mind 84 ; MuUett i: Mason, Law Rep. 1 C P. that here the contract is executed, though 559; Pasley v. Freeman, 8 T. R. 51 ; imperfectly, and that a consideration is Langridge v. Leyy, 2 M. & W. 519 ; not essential to an executed contract. West o. Emery, 17 Vt. 583 ; Johnson r. Bishop Con. § 81, 82. McDaniel, 15 Ark. 109. » Post, § 405 ; Wheelock v. Wheel- 31 § 79. FUNDAMENTALS. [BOOK I. one has done a wrongful act, and the public has suffered, the State may treat it as a crime ; but, whether it does so or not, no other individual can complain unless he, in a manner differ- ing from the entire community, has suffered. And the wrong and injury must not be separate things, they must exist in combination ; must be of a magnitude justifying the law's interference ; must constitute cause and effect ; and the wrong must be adequately proximate to the injury. One can- not complain if the thing done was with his consent ; or, if he was also a wrong-doer in such a way as to render his wrong a part of the case which he presents against the defendant. And, whatever his rights, he cannot enforce them except by a procedure recognized by law ; so that, if the law has none which is adequate, his right practically fails. The wrong, to be within the definition of a tort, must be a disturbance of some right which the law, in distinction from a contract, has created ; but it is no objection that there is also a contract, either partly or -altogether coinciding with the law-created right, or that the wrong consists in doing a contract duty negligently or improperly. 32 CHAP. IV.] NATURE AND METHODS OF PRINCIPLES. § 83 CHAPTER IV. THE NATURE AND METHODS OP THE PRINCIPLES. § 80. Relations of Subject — The non-contract law, to be considered in this volume, unlike the law defining and enfor- cing the agreements of parties, is in the main a direct product of natural justice. And it is more purely common law, less modified by statutes, than are the rules which govern most other departments of our jurisprudence. So that this volume, in this introductory part of it, is a particularly appropriate place wherein to take a brief view of the nature and methods of legal principles. § 81. Not Arbitrary Rule. — That the common law is not a set of arbitrary rules, but, on the other hand, that it is the offspring of fundamental right, that it is not the mere unrea- soning command of a lawgiver, but is itself reason, is a propr- osition suflSciently derivable from what is set down in the foregoing chapters. Let us further see what and whence it is. § 82. ■Whence. — Though we contemplate God as the au- thor and source of all things, we do not listen for words directly from his lips, as though he were a man speaking to us. His annunciations are through his works. The nature and conscience of man utter the human laws, as the harmoni- ously rolling spheres do the laws of their existence. To learn these human laws, therefore, we look to man in his manifesta- tions from age to age, to his inner consciousness, and to his outward expressions. And from these sources, whereof our own judgment and reason constitute a part, we derive our conclusions both as to what is right and what is law. Now, — § 83. Formation of our Law. — As vegetation springs from the earth under the influences of the rain, of the sunshine, 3 33 § 84 FUNDAMENTALS. [bOOK I. and of the seasons, so do opinions come from the human mind through the friction of thought, discussion, and ever- shifting affairs of men. And as the tree and plant know not why they grow, and the different sorts of vegetation are with- out apprehension of the laws whereby their blendings render the earth beautiful; so do opinions come and pass away. or re- main and consolidate into permanent forms, with little idea, in those who entertain them, of the hroader laws, the funda- mental and eternal right, whereon they rest, and of the sub- stance whereof they are. To these opinions, formed step by step and fact by fact, men dwelling in society conform their actions ; and thus usage becomes lajr. This law, as society advances and is perfected, the tribunals enforce. So that, going back to the beginning, and tracing society downward until civilization has established itself among our ancestors on -the British Islands, and thence downward through our colonial existence until the present day in our States, we have the law of this and other legal subjects in the accumu- lated wisdom of ages, modified and defined by judicial deci- sions and in a greater or less degree by statutes. § 84. Law as Composed of Principles. — During the earlier ages, the growths and manifestations which we have learned to trace to the laws of nature seemed but tlie happenings of chance or the gambols of the gods. In like manner, these municipal laws of ours, these marvellous accumulations of the wisdom of the past, have appeared, and to those who only superficially look at them they still appear, to be chance customs, judicial hap-hazards, and legislative freaks. In truth, God, who reigns in nature by laws which the eye does not see, reigns thus invisibly yet equally in the human mind and in society. Each particular custom, each just decision of a court such as binds it in future causes, each statute embody- ing what mankind commends as worthy of preservation is but the outward manifestation of some principle of justice organic in our individual and social being. Men, who discern what is right in a particular instance, or as legislators enact what is right, or as judges pronounce what is right, may fail to see truly the underlying reason, but it just as much 34 CHAP. IV.] NATURE AND METHODS OP PRINCIPLES. § 86 exists as did the laws of gravitation and of the centripetal and centrifugal forces before the human mind discovered them. § 85. Discovering Law. — The investigator into our juris- prudence, precisely like the student of physical matter and forces, seeks, most of all, to find the laws, however invisible to outward sight, which in real fact govern the movements, the things, the instances, the cases, or however otherwise the idea is expressed, under his inquiry. The combined decisions and statutes are often, for convenience, and without practical misleading, spoken of 9s the law. Yet, in truth, behind them may lie, invisible except to the illumined understanding, what in more accurate langua^ is termed the law, whereof they are but particular manifestations. The instances proceed from the mind of man, as vegetation does from tiie earth. Yet the law of the growth of each is a thing quite distinguish- able from the growth itself. So the law of the motions of the physical heavens is simply invisible to the unillumined sight ; but, since it has become a part of human knowledge, it is con- templated as quite separable from the motions themselves. In our jurisprudence, not in everything have the students of it, in its present state of development, learned to discriminate between the outward manifestations, — that is, the decisions and statutes, — which are thus distinguishable from the law itself, and the real law as thus explained ; but they have pro- ceeded in this field of discovery far enough to render their conclusions accepted verities, and to furnish abundant stimu- lants to future investigations and discoveries. So that it has become the imperative and acknowledged duty of the writer upon our law to look beyond the mere words of the books into the inner nature of his subject, and to set down what is by him seen for the first time equally with what others discerned before. § 86. The Two Processes. — Legal investigations, therefore, proceed in the main upon one or both of two processes. The one process consists of looking into the outward manifesta- tions — that is, into the statutes, and more particularly into the decisions — and formulating to the mind the invisible law 35 § 89 FUNDAMENTALS. [BOOK I. whence they proceeded. This may be termed learning the law. The other process consists of applying the law; that is, of bringing the law which has thus been learned into con- junction with the numerous facts in litigation, and determin- ing the legal rights and duties consequent thereon. Now, — § 87. Legal Principles. — This invisible law, thus ascer- tained, consists of rules familiarly spoken of as legal prin- ciples. They are learned in the main by the first of the two processes just described. One who has simply learned them, however accurately and well, has not become a competent practitioner in the law. He must add thereto the acquired capacity to apply the principles to the ever-changing facts in life. And the latter is quite as difficult to learn as the former. Thus we are brought to — § 88. Reason. — The legal principles are particular embodi- ments of reason. So that the law itself is commonly and prop- erly denominated a system of reason. In other words, a legal principle is a formula of reason. Tt may be a self-evident proposition, in which case it is no less one of reason, or it may be a proposition which reason has wrought out by one or more of its processes. Reason, therefore, can discern whether or how far one of its principles — a legal principle — is to be applied to a particular state of facts ; or whether two or more of its principles are to be applied in conjunction, and what is the effect of thus conjoining them, or how far, in special and changing circumstances, the principles must respectively give place ho one another. The use of reason, whether in the law or anything else, is acquired less from precept than from practice. It is like the use of the hands or the feet ; instruc- tion from a teacher may be serviceable, but the great instruc- tor is the practice which begins with infancy and ends only with death. In similar ways a student of the law learns to apply its principles, and by degrees transmutes himself into a competent practitioner. Hence — § 89. How in this Volume. — The writer will in this volume, as far as space permits, so unfold his subject as to enable the reader to discern both the processes whereby the law is learned, and those by which it is applied. And it is believed 36 CHAP. IV.J NATURE AND METHODS OP PRINCIPLES. § 90 that in this way the reader will become better enlightened on the subject of this chapter than he would be by a further ex- tension of the chapter itself. § 90. The Doctrine of this Chapter restated. One who, with no knowledge of mechanics, looks at a com- plicated machine doing its work, discovers only results, with little understanding of the methods whereby they are wrought out. And one may even accustom himself to use the ma- chine, as the lawyer does the law, with little more real knowl- edge of it than is possessed by the iminstructed looker-on. But he who has learned to trace the product of the machine back through its several processes, and has noted how each me- chanical principle operates by itself and by its combinings with other principles to produce step by step the manufacture, has alone acquired that knowledge which can render him a perfected master and worker of the machine. It is so likewise in the law. This machine is a device of Wisdom higher than man's. The men who use it have different degrees of under- standing of it, but no one has become perfect therein. Of all who in the various ways deal with the law, no one has reached a status superior to that of student. The illustra- tion of the machine explains to us what we need in the law. Remembering that it is a system of principles or, what is the same thing, of reason, we are to learn by constant investiga- tion and notings of results what its principles and reason are, and how to apply them practically to the limitless variety of questions which arise in life. 37 92 SOME PARTICULAR PRINCIPLES. [BOOK II. BOOK 11. MORE MINUTELY OF SOME PARTICULAR PRINCIPLES. CHAPTER V. GOVERNMENTAL CONTROL OP PERSON AND PROPERTY. § 91. The Principle — now to be considered is, that, since the congregating of men in communities is for the common good, and government is a necessity, each individual by im- plication surrenders to the governing power so much of the control of his affairs as this end requires. And as from the nature of the case the government must be and is the sole judge of what and how much shall be taken from the indi- vidual,^ the practical consequence is that its control over per- sons and property is supreme. Hence the familiar doctrine of the English law that parliament is omnipotent, — a doc- trine to which some concede slight exceptions not important to be considered here.^ Whether, in applying this doctrine to our legislatures, we concede the like and other exceptions growing out of natural right or not,^ we find, at least, the chief limitations to be in the restraints set down in our writ- ten constitutions. So that, — § 92. Doctrine deened. — The governments of the United States and of the several States within their respective spheres may, in general, prescribe whatever rules they will for the 1 Bishop Stat. Crimes, § 989. 2 1 Kent Com. 447, 448 ! Dwar. Stat. 2ded. 480-484 ; 1 BI. Com. 90, 91, 160. » Bishop First Book, § 89-91. 38 CHAP, v.] GOVERNMENTAL CONTROL. § 96 conduct of persons and the use of their property, except as the particular legislature is forbidden by the national or State constitution.^ There are two methods of prescribing these rules ; namely, — § 93. Through Common Law. — Universally, in this country, wherever the common law prevails, there are common-law restrictions and regulations of men's rights to deal with their own. The entire common law of crimes is one illustration of this, and the common-law doctrines of this volume throughout are other illustrations. Added to which, — § 94. Throagh Statutes and By-laws. — Statutes and muni- cipal by-laws are continually making new provisions for the government of men and their property. A violation of these provisions may even subject a man to imprisonment or death. And the restriction upon the use of property may be such as greatly to impair or even to annihilate its value.^ Still the law is valid unless it violates some constitutional provision, in which case it is void.^ § 95. Constitutional Law — is one of the great divisions of law in this country. It is not for this volume, except where incidentally it and the ordinary expositions of the volume come into contact. And it would be premature to bring into view in this chapter the several provisions of our common and statutory laws regulating the conduct of person and prop- erty. Each particular of this sort will best appear in con- nection with the general unfoldings of our subject. § 96. The Doctrine of this Chapter restated. The common law provides such restraints and regulations of the conduct of persons and property as were anciently deemed desirable. In modem times, they are by statutes extended and changed to keep them in accord with progres- 1 Bishop Stat Crimes, § 995 ; Com- 606 ; Daniels v. Hilgard, 77 111. 640 : monwealtho. Alger, 7 Cnsh. 53, 84,-85; Brechbill v. Randall, 102 Ind. 528; Mngler v. Kansas, 123 IT. S. 623, 665 ; Eeyes v. Snyder, 15 Kan. 143. Feitiliziiig Co. v. Hyde Park, 97 U. S. « Mugler v. Kansas, 123 U. S. 623. 659, 667 ; Wnrts v. Hoagland, 114 U. S. » Bishop Written Laws, § 33, 34. 39 § 96 SOME PABTICULAR PKINCIPLB8. [BOOK IL sive views and new wants. The right to make these altera- tions is in some degree restricted with us by our national and State constitutions. But, in strict law, with possibly a few exceptions, where the constitutions do not interfere the legis- lature can effectively make whatever changes it will. So that, in spite of our constitutions, our legislative bodies have it in their power to impose upon the people many arbitrary laws, as well as unwise ones, which the courts will have no juris- diction to correct. The protection against them is in public sentiment and in the baUot; and this has proved fairly ef- fectual in England, where no written constitution, binding Parliament, exists. 40 CHAP. VI.] DEALING WITH ONE'S OWN. § 99 CHAPTER VI. one's RIGHT TO DEAL AS HE WILL. WITH HIS OWN PERSON, PROP- , ERTT, AND INTERESTS. § 97. The Frmciples. — Returning now from the inquiry as to what the government may do, we are again to consider what it has done. The principles which underlie the suhject of this chapter have already been stated.^ They are severally plain ; and the doctrine of this chapter, which is wrought out by a combining of them, is plain in the abstract, yet when ap- plied to complicated affairs it is in some respects indefinite. § 98. Doctrine defined. — The doctrine is, that every man is permitted to do what he will with his own property, per- sonal volitions, and personal interests, without responsibility to another casually injured thereby, if he has no purpose to do injury to another, if he does not trespass upon another's property or rights, and if he uses due care to avoid the inflic- tion of needless harm.^ § 99. Applications of Doctrine. — Some doctrines of the law, when stated thus in an abstract form and without illustra- tions, are adequate guides throughout their entire topic. It is not so with our present one. And the reason is, that men stand side by side, their property lies side by side, their affairs mingle, they mingle, the air and the water and human breath carry impalpable things from one to another and to the com- 1 Ante, § 10, 11, 14, 15. when there is no just gronnd for the * "On leviewing the cases, I am chaige of negligence or onskilfulness, of opinion that no man is answerable and when the act is not done mali- in damages for the reasonable exercise cionsly." Wood worth, J. in Panton v. of a right, when it is accompanied hy a Holland, 17 Johns. 92, 99. And see cantioos regard for the rights of others, Victoiy ». Baker, 67 N. Y. 366. 41 § 101 SOME PARTICULAR PRINCIPLES. [BOOK H. munity; so that there are immense complications, to which the application of an abstract rule is a nice matter, and in some instances even not admitting of a determination except by judicial authority. We shall iii this chapter look at such few illustrations of the doctrine as will give it a practical shape in our understandings, further applications of it being postponed until we find them more helpful further on. § 100. Maxim. — Relating to our present doctrine we have several Latin maxims; the one most frequently quoted is, Sic utere tuo ut alienum non Icedas, enjoy your own property in a way not to injure another's.^ This maxim covers the particular part of our doctrine which it is impossible to make practically definite by general words ; so that even the maxim itself was pronounced by a learned judge to be " utterly use- less " as a legal guide, though " a very good moral precept." ^ Still most judges have deemed it to be legally helpful,^ and these expositions will proceed on the assumption that it is. Thus,— § 101. Own, not Another's. — The terms of the maxim and of our doctrine acknowledge no right in one to enjoy what is another's ; so that, for example, a trespass to another's lands or goods is not excused by the trespasser's motives, however worthy, or by his believing them to be his own,* or by the mere accidental nature of the act.® An illustration whereof is one's innocent receiving of stolen goods, or of other things to which in law a title could not be given him ; if he sells them he becomes, liable to the true owner.^ On a like principle, one who for some apparently lawful cause procures the arrest of another must answer to him in damages if any formal step 1 Broom Leg. Max. 2d ed. 274 ; ' For example, Eex v. Ward, 4 A. & Eoiise ». Martin, 75 Ala. 510, 515 ; E. 384, 406. Martin v. Ogden, 41 Ark. 186, 193; Bran- * Ante, § 13, 30, 31 ; Mairs v. Man- som V. Labrot, 81 Ky. 638, 641 ; Thura- hattan Real Estate Assoc. 89 N. Y. ton V. Hancock, 12 Mass. 220, 224; Gil- 498. more v. DriscoU, 122 Mass. 199, 204 ; 6 ITewsom v. Anderson, 2 Ire. 42. Sanderson v. Pennsylvania Coal Co. 5 ' Hollins v. Fowler, Law Rep. 7 H. Norris, Pa. 401 ; Piatt v. Johnson, 15 L. 757 ; Hardman v. Booth, 1 H. & C. Johns. 213, 218. 803 ; Delaney v. Wallis, 15 Cox C. 0. 2 Selden, J. in Auburn, &c. Plank 525. Road V, Douglass, 5 Selden, 444, 446. 42 CHAP. VI.] DEALING WITH ONE'S OWN. § 103 by the law made necessary is, however inadvertently, omitted.^ But,— § 102. As wiu with Own. — When the thing is in matter of law the party's own, the rule, not without exceptions, is that he may deal with it as he will.^ For example, he may burn it.^ And should his lawful and cautious dealing with it acci- dentally result in injury to another, he will be without liabil- ity.* Or, where there is a distinct legal right to do a thing, there will be no liability however plain it is that injury, not amounting to an impairment of absolute rights, will result to another .5 Thus, ^— § 103. Damnum Absque Iniuii2L — It is the absolute right, almost the legal duty, of every person to be in some useful business.® Hence, however much harm one may do another by setting up a business in competition with him, it can fur- nish no ground for damages.^ So, as the ownership of land carries with it the right to build thereon, if the owner erects a structure which will cut off a pleasant view from another's house and reduce its value, the latter can have no redress.® It is the same where a just debt is transferred to another State where payment can be enforced with greater facility and ef- fectiveness,^ or where one bank collects the bills of another and presents them for redemption in a harassing manner to injure its credit ; ^^ though, in each of these cases, there was a harm from the exercise of a legal right, the law would fur- nish no redress. The value of a spring may be much impaired by the cutting down of a tree which gives it shade, yet the owner can have no action against another on whose land the tree stands if he fells it.^ Likewise, if a man shuts the door 1 Cody O.Adams, 7 Gray, 59; Wentz 1 Pollock Torts, 130, 131, referring V. Bernhardt, 37 La. An. 636. Com- to ffil. 11 Hen. IV. 47, pi. 21 ; 22 Hen. pare with Davies v. Jenkins, 11 M. & W. VI. 14, pi. 23. 745. 8 Butt V. Imperial Gas Co. Law Eep. 2 Victory b. Baker, 67 N. Y. 366 ; 2 Ch. Ap. 158. GaUagher v. Dodge, 48 Conn. 387. • Uppinghonse v. Mnndel, 103 Ind. » 1 Bishop Crim. Law, § 614 ; Frank 238. And see Underwood v. Brown, V. Dunning, 38 Wis. 270. 106 Mass. 298. * Edwanls's Case, 2 Leon. 93. "> South Royalton Bank v. Suffolk » Post, § 111, 120. Bank, 27 Vt 505. • Bishop Con. § 513-520. " Lucas ». Bishop, 15 Lea, 165. 43 § 105 SOME PARTICULAR PRINCIPLES. [BOOK H. of his house against the sheriff who comes to take another's goods therein, he commits no legal wrong, since he simply exercises a right.^ These are illustrations of what our books term, not quite elegantly, damnum absque injuria,^ defined to be " a wrong done to a man for which the law provides no remedy." 8 Still,— § 104. Avoiding Injury — (NegUgence). — Commonly, if there are two ways or times in which a man can so put in use his rights as to make them effectual, he should choose the one which will not harm another, instead of the one which will.* The most familiar of the doctrines within this proposition is that of negligence : most rights can be exercised either care- fully, so as to avoid injury to third persons, or negligently to their detriment ; therefore he who suffers from another's neg- ligence in doing what is lawful may recover his damages of the other, if not himself in fault, though otherwise if he is.® But,— § 105. Right conflicting with Right. — In various classes of cases, there is in the nature of one's right no way to exercise it except by impairing a fixed and absolute right of another. For example, if I own a piece of land it is my absolute right to do or put upon it whatever I will, so long as I do not suffer the air or the water to carry outside of my lines any- thing which may be a nuisance to another. Thereupon if a man trespasses on my land, he, though a wrong-doer, has still 1 Semayne's Case, 5 Co. 91 a. Rid. v. Sullivan, 81 Ky. 624 ; Kentucky 2 ITppinghouae v. Mundel, supra ; Cent. Eld. v. Thomas, 79 Ky. 160 ; Gas-light, &c. Co. v. St. Mary Abbott's, Butterfield v. Forrester,. 11 East, 60 ; 15 Q. B. D. 1. Philadelphia, &c. Kid. v. Kerr, 25 Md. « Bouv. Law Diet. 521; Bishop ii. Union Rid. 14 R. L 314 ; * Post, § 115, 118; Gas-light, &c. Milnew. Walker, 59 Iowa, 186; Chicago, Co. V. St. Mary Abbott's, 15 Q. B. D. 1, &c. Eld. v. Lammert, 12 Bradw. 408 ; 5, 6 ; Dewey ». Leonard, 14 Minn. 153 ; Alabama Great Southern Rid. v. Jones, Hays V. Miller, 6 Hun, 320 ; Detroit 71 Ala. 487 ; Chicago, &o. Eld. v. Daily Post v. McArthur, 16 Mich. 447 ; Stumps, 69 111. 409 ; Virtue v. Birde, Robinson v. Baugh, 31 Mich. 290 ; 2 Lev. 196 ; Flynn v. San Francisco, Aaron v. Broiles, 64 Texas, 316. &c. Rid. 40 Cal. 14 ; Rockwood v. Wil- 6 Post, § 115 ; Baltimore, &o. Rid. son, 11 Cush. 221 ; Union Ry. &e. Co. V. Reaney, 42 Md. 117 ; Chataigne v. v. Kallaher, 114 111. 325 ; George v. Bergeron, 10 La. An. 699 ; Althorf v. Fisk, 32 N. H. 32. Wolfe, 22 N. Y. 355 ; Louisville, &c. 44 CHAP. YI.] DEALING WITH ONE's OWN. § 106 the right to live. Then if, without negligence, but taking the most exact aim, I discharge a leaden bullet, which does not pass beyond my lines, through the heart of the trespasser, doing what all would admit to be my exact right but for his presence, I commit an unquestionable wrong. For my right to use my land in shooting has come into antagonism with his right to live ; and, in this instance, his was the supei-ior right, to which mine must yield. This case is plain ; but, in many other cases, it is doubtful which of two antagonistic rights is the superior one, and which must yield to it as being the inferior. Some i^ustrations of this are, — § 106. ninstratioiis. — It is the absolute right of the owner of land to dig up the soil, or to grade it, or to carry it off. If another person owns adjoining land, and there is a well on it, the latter has an absolute right in the purity of the water. Now, if the land of the first owner lies by the sea, and he so digs it up as to let in the salt water, which percolates into the well of the second owner, the first has infringed upon the ab- solute right of (iie second. Which is the superior of these two rights ? The second has been adjudged to be, so that an action will lie for the damage to the well.' A fortiori, it fol- lows from this case that if a man's land forms a natural em- bankment protecting other lands from an overflow, he will commit a wrong to their owners if he makes a channel through it and lets in the watera.* Then what is the conse- quence if a man, to protect his land from the overflow of a river, builds an embankment which increases the overflow on another's land ? He had the right to build the embankment, and the other had the right not to be harmed thereby. The judicial decision in this case has been directly opposite to that in the other ; namely, that the one may build the embankment for his protection, and the other can have no compensation for his loss.' So the owner of an enraged bull, a creature less valuable than a human being, can recover nothing of a man who kills it in the necessary defence of himself or 1 Mcars v. Dole, 135 Mass. 508. Eq. 115. See Collins o. Ifacon, 69 Ga. See Cahill v. Eastman, 18 Minn. 324. 542. * Cronipton o. Lea, Law Kep. 19 * Hoard v. Des Moines, 62 Iowa, 326. 45 § 109 SOME PARTICULAR PRINCIPLES. [BOOK 11. familj.i We thus see that, assuming all these cases to have been correctly decided, which probably we may, there are two classes ; in the one class, a man may lawfully exercise his right to the injury of another's right ; in the other, he may not. The difference comes from their differing natures and circumstances. Now, — § 107. By what Rule. — For these conflicting cases, of which the ones just mentioned are hut Illustrations, it is, be- lieved to be impossible to furnish any more definite rule than is above intimated ; namely, that the superior right, in which- ever party it is, whether in the person acting or in the one passive, must prevail over the inferior. So that the active party is liable to the other or not, according as his right is the inferior or the superior. To determine which it is in a particular case requires juridical skill and culture. § 108. Common Law compared with Code. — This matter exemplifies the superiority of our common law over a code, or any system of laws existing in iron rule. The latter must necessarily in many instances work that practical injustice which our common-law system is admirably adapted to avoid. § 109. The Doctrine of this Chapter restated. Subject to the duty of abstaining from avoidable injury to others, it is every man's right to manage his own volitions, interests, and property as he will, without liability to one casually-harmed thereby. In mere method, when the facts of a case permit a choice, he must adopt the course which will not impair another's rights, to the exclusion of one which will. Where there can be no such election, and so right antagonizes right, the inferior must yield to the superior ; the party hav- ing the superior right, whether he is the active or the passive one, being protected by the law, while the other is not. But no person may so exercise a right as to injure another's le- gally-recognized right, if there is a way practically open to him whereby he can avoid it, and at the same time make his own right effectual. 1 Russell V. Barrow, 7 Port. 106. 46 CHAP. VII.J WHAT LAW PERMITS OR REQUIRES. § 113 CHAPTER VII. DOING WHAT THE LAW PERMITS OR REQUIRES. § 110. In Reason, — when the law requires or simply per- mits a thing, it by implication extends its protection to the doer. And such protection necessarily involves a refusal of redress to any other person thereby casually injured. Hence — § 111. Doctrine defined. — The doctrine of this chapter is, that, whenever one by command or authorization of the law does a thing from which another sustains an injury, he is without liability to the other, who must endure uncompen- sated what thus befalls him.^ § 112. Sort of Law — (^Common Law — Statute — Municipal By-law). — It is immaterial to this doctrine what sort of law it is which authorizes or commands the doing of the thing. It may be the common law, or a statute, or a municipal by- law ; all are equally laws.^ But — §113. VaUd. — A law, to be within this rule, must be 1 Barbin v. Police Jury, 15 La. An. Island Eld. 31 Hun, 112 ; Miller ■». 559 ; Eadcliff v. Brooklyn, 4 Comst. New York, 109 U. S. 385 ; Hamilton v. 195 ; Auburn, &c. Plank Road v. Doug- Vicksburg, &c. Rid. 119 U. S. 280 ; lass, 5 Selden, 444 ; Fahn v. Keichart, 8 Caledonian Ry. v. Walker, 7 Ap. Cas. Wis. 255 ; Bailey v. Devereux, 1 Vem. 259, 293 ; Koelmel v. New Orleans, &c. 269 ; Morris, &c. Rid. v. Newark, 2 Rid. 27 La. An. 442. Stock. 352 ; Rome v. Omberg, 28 Ga. ^ Bishop Written Laws, § 11, 11 a ; 46 ; Metropolitan Asylum Dist. v. Hill, Siemers v. Eisen, 54 Cal. 418 ; Wilson 6 Ap. Cas. 193, 205 ; Carhart v. Au- v. White, 71 Ga. 506 ; Friday v. Floyd, burn Gas-light Co. 22 Barb. 297 ; 63 111. 50 ; Jetter v. New York, &o. Thomasson v. Agnew, 24 Missis. 93 ; Rid. 2 Abb. Ap. 458 ; Owings v. Jones, Nashville, &c. Eld. v. Comans, 45 Ala. 9 Md. 108 ; Correll v. Burlington, &c. 437 ; South Royalton Bank v. Suffolk Rid. 38 Iowa, 120 ; Mahan v. Union Bank, 27 Vt. 505 ; Titus ■•>. Lewis, 33 Depot St. Ry. 34 Minn. 29 ; Baltimore, Ohio State, 304 ; Merritt v. Fitzgib- &c. Rid. v. Mali, 66 Md. 53 ; Eafferty bons, 102 N. Y. 362 ; Briesen ■». Long v. Missouri Pao. Ry. 91 Mo. 33. 47 § 116 SOME PARTICULAR PRINCIPLES. [BOOK II. valid ; that is, if it is a statute it must be constitutional ; ^ if a by-law, it must be both constitutional and within the power of the municipality making it, also reasonable and not in con- flict with any statute or ordinarily with any essential principle of the common law.^ § 114, Whether Exceptions. — Contrary to the general truth that every particular principle in the law is limited by other principles,* the doctrine of this chapter, when accurately re- garded, appears to be from its nature universal and unqual- ified. Still, at points all around, it comes in contact with other doctrines which show its extent and-true interpretation.* Thus, — § 115. Negligence — Needless Harm. — Since the law re- quires men to conduct themselves with care_ and circum- spection, so as to avoid injury to others, its permission or command is never to be interpreted as authorizing negligence. Therefore one who suffers from what another does negligently under license from a statute may have his action against the doer,^ and so of any harm which prudence can properly avoid.^ And — § 116. Overstepping FermisBion. — Any overstepping of a permission given by the law will sustain an action in favor of one who suffers therefrom ;7 as, for example, though a bawdy- house is licensed under a city ordinance, if the inmates habi- tually and indecently expose themselves at the windows, the owner of an adjoining dwelling may maintain his suit against the owner who continues to let such house after he has knowl- edge of this method of occupancy, it not being within the pro- tection of the license.^ But, to repeat, — 1 Bishop 'Written Laws, § 33, 34. Eep. 16 Eq. 636 ; Gas-light, &e. Co. 2 Bishop Written Laws, § 17 a, 25, v. St. Mary Abbott's, 15 Q. B. D. 1 ; 26, 34. Metropolitan Asylum Dist. v. Hill, 6 » Ante, § 79. Ap. Cas. 193 ; Cogswell v. New York, * Post, § 295. &c. Eld. 103 K. Y. 10. * Post, § 436 ; Geddis v. Bann Ees- ' Parrot v. Cincinnati, &o. Eld. 10 ervoir, 3 Ap. Cas. 430, 455, 456 ; Mer- Ohio State, 624 ; Baltimore, &c. Eld. sey Docks v. Gibbs, Law Rep. 1 H. L. v. Fifth Baptist Church, 108 U. S. 93, 112 ; Koelmel i). New Orleans, &c. 317, 331 ; Dooley v. Kansas, 82 Mo. Eld. 27 La. An. 442. 444. Biscoe V. Great Eastern Ey. Law » Givens v. Van Studdiford, 86 Mo. 48 u CHAP. VII.] WHAT LAW PERMITS OR REQUIRES. , § 120 § 117. Following Law's PermiBsion. — So long as the doer keeps strictly within what the law permits, and exercises due care, he is not liable to another injured by his acts. If a statute which gives the permission provides for compensation, he is required to pay it, but nothing more.^ In the applica- tion of this doctrine, not in the doctrine itself, there may be distinctions between — § 118. — Fermission Absolute, Discretion, Command. — It is plain, equally in reason and in law, that, if the law commands a thing in such terms as to leave no discretion, or simply permits the doing in. a way which it specities, he who in the doing simply follows the unambiguous direction is without liability to another person suffering therefrom; while, on the other hand, one given a discretion, where the thing admits of being done in a way not injurious to others, is protected only by adopting such method.^ § 119. Private Property for PubUo Use. — There is with US a qualification of these doctrines not known in England. The Constitution of the United States forbids the taking of " priv- ate property" "for public use without just compensation." ^ This restriction does not bind the States ; * but the State con- stitutions have like provisions, some of them further-reaching than this one.^ It does not extend to the taxing power, but it is a limitation of the right of eminent domain.^ So that, — § 120. Not within Restriction. — In spite of this constittl- tional provision, there are innumerable ways in which legislSr 149. See 1 Bishop Grim. Law, § 1090- " Sutton o. Clarke, 6 Taunt. 29 ; 1096. Baltimore, &o. Eld. ». Fifth Baptist 1 Moyeri). New York Cent. &c. Eld. Church, 108 U. S. 317 ; Attorney-Gen- 88 N. Y. 351, 356 ; Eadcliff v. Brooklyn, eral v. Gas-light and Coke Co. 7 Oh. D. 4 Comst. 195 ; Briesen v. Long Island 217 ; Metropolitan Asylum Dist. v. Eld. 31 Hun, 112 (Baltimore, &c. Rid. Hill, 6 Ap. Cas. 193 ; London, &c. Ry. V. Fifth Baptist Church, 108 U. S. 317, ii. Truman, 11 Ap. Cas. 45. dissented from in this case, is not con- ' Const. U. S. amendm. art. 5. trary to the text) ; Hammersmith, &c. * Barron v. Baltimorp, 7 Pet. 243 ; Ey. u. Brand, Law Eep. 4 H. L. 171, "Withers v. Buckley, 20 How. U. S. 84. 185 ; Cracknell v. Thetford, Law Eep. ^ Transportation Co. v. Chicago, 99 4 C. P. 629 ; Miller v. New York, 109 U. S. 635, 642. U. S. 385 ; Morris, &c. Rid. ■». Newark, 6 Oilman v. Sheboygan, 2 Black, 2 Stock. 352 ; New Eiver Co. v. John- 510 ; People v. Brooklyn, 4 Comst. 419. son, 2 Ellis & E. 435. 4 49 § 121 SOME PARTICULAR PRINCIPLES. [BOOK II. tion may authorize one person to do an act injurious to another, for which the latter has no remedy either of restraint or of compensation. For example, if, in the building of streets and bridges, or in the improvement of navigation, an abutter or other person is injured by acts necessary in the prosecution of the work, he has no remedy.^ Acts of this sort do not constitute the taking of anybody's land. § 121. The Doctrine of this Chapter restated. The doctrine of this chapter is, that, whenever the common law., a statute, a municipal by-law, or any other law validly permits or commands one to do a thing, another injured by the doing has no claim against him for compensation. But he must keep strictly within the authority ; as, for example, he must not act negligently, since negligent acts are never a necessity, and the law never authorizes them. And if he has a choice of means, he must select those which will not be det- rimental to others, because every man should so conduct his own affairs as not needlessly to harm his neighbor. But both in reason and on authority this proposition should not be car- ied to extremes. In this country, there is a constitutional provision forbidding the uncompensated taking of private property for public use, so that a statute allowing it would be invalid ; limiting, therefore, not the common-law doctrine itself, but the scope for its application. In other respects the common law governs these questions. 1 Tranisportation Co. v. Chicago, 99 119 U. S. 280 ; Eadcliff v. Brooklyn, 4 U. S. 635 ; Rome v. Omberg, 28 Ga. Comst. 195. 46 ; Hamilton v. Yicksburg, &c. Eld. 50 CHAP. Vni.] DISCHABGING SOCIAL DUTIES. § 125 CHAPTER VIII. DISCHARGING THE SOCIAL DUTIES. § 122. This Chapter — is a continuation of the last. It consists of an inquiry into the principles which determine whether or not a particular thing within its title is com- manded or permitted by the common law. Whenever it is found to be either, its consequences depend upon the rules stated in the last chapter. § 123. Larger Meaning. — The term " social duties " is in its larger meaning as broad as the entire law itself. For the function of law consists in regulating the conduct of individu- als toward one another and the community ; that is, socially, their " social duties." But we are here employing the term in a narrower sense, yet how much narrower it is needless to say, for it does not affect the doctrine itself, which is that, — § 124. Dootiine of Chapter defined. — Whenever a thing has become universally recognized to be a social duty, especially when it has become thus elevated into a usage,* if of a magni- tude and importance suflBcient to be within the law's cogni- zance,^ the doing of it is thereupon either legally required or legally permitted ; generally the more important social duties are commanded by the law, the less important are simply per- mitted. Thus, — § 125. Preserving Human Life. — Among the most impor- tant social duties, recognized by all men, is that of saving one another's lives when in peril. Therefore the law takes this duty under its protection in such ways as the following. In spite of the rule that a man's house is his castle, which per- sons from the outside are not permitted to break open, they ' Ante, § 83 ; Bishop Con. 445. » Ante, § 35, 36. 51 § 126 SOME PARTICULAR PRINCIPLES. [BOOK 11. may break and enter it and imprison him to prevent his kill- ing therein his wife. This has sometimes been put upon the ground of the duty to prevent the commission of a felony ; ^ but, though this is a sufficient reason, if the woman's danger were from a cause not felonious, the law would still permit the doing of an otherwise unlawful act to save her life. " If," said a learned judge, " a house in which a person ill of an infectious disorder lay bedridden took fire, and it was neces- sary to choose whether the sick person was to be left to perish in the flames or to be carried out through the crowd at the risk or even the certainty of infecting some of them, no one could suppose that those who carried out the sick person could be punishable ; and probably a much less degree of ne- cessity might form an excuse." ^ In the former of these two cases, the otherwise unlawful act was required ; ^ in the latter, it was simply permitted. Another illustration occurs in the law of negligence. It is not contributory negligence in a party, such as will bar his action for the negligence of the other party, that he risked his life to save life ; * as, that he rushed to rescue a child from a railroad track while a train was approaching,^ or as engineer on a train stood at his post to preserve the lives of passengers in a collision.® And in various emergencies one is without negligence who imperils his personal safety in the discharge of a duty.'' § 126. Saving Property. — It is a universally recognized social duty, though not so high as the last, for people to save one another's imperilled property. This is illustrated in such ways as the following. If one in an emergency preserves 1 Handcock v. Baker, 2 B. & P. 260. * Clark i». Famous Shoe, &o. Co. 16 2 Lord Blackbnrn, in Metropolitan Mo. Ap. 463 ; Donahoe v. Wabash, &o. Asylum Dist. v. Hill, 6 Ap. Gas. 193, Ry. 83 Mo. 560. 205. 6 Eckert v. Long Island Eld. 43 * Merely not interfering to prevent N. Y. 502. the commission of a felony is an indict- " Pennsylvania Co. v. Eoney, 89 ahle misdemeanor termed misprision of Ind. 453. felony. 1 Bishop Grim. Law, § 717, ' Carroll v. Minnesota Valley Rid. 718. Though the law is so, it would 14 Minn. 57 ; Pigott ». Lilly, 55 Mich, be practically difficult to find a modem 150 ; Central Eld. v. Crosby, 74 Ga. case in which one haa been indicted for 787. this offence. 62 CHAP. Vlil.] DISCHARGING SOCIAL DUTIES. § 129 from destruction a stranger's effects, which would otherwise be lost, relying on being compensated for the service, the law will create a promise from the stranger to pay him.i Or if, while a conflagration is raging in a city, one in good faith blows up another's house under an evident necessity to stop the spreading of the flames, he is not liable in damages to the owner of the house ; the necessities of the occasion, the social duty of preserving the adjacent property and guarding the other public interests, furnish his excuse,^ — a doctrine as to the precise limits of which the cases are not in absolute accord.^ Again, — § 127. In Slander. — There are circumstances in which, by all opinions, it is the social duty of a person inquired of to communicate to the inquirer what he knows regarding the character of another. For example, should one contemplat- ing the hiring of a servant, apply to a former master for his character, the latter may in law, as in social duty he should, tell the applicant what he understands his character to be; and, if the communication is honest and not malicious, no liability to pay damages will result therefrom, though what is said is in fact untrue, is injurious to the servant, and such as would sustain a slander suit under other circumstances.* Now, — § 128. Limits of Doctrine. — This sort of doctrine runs through the entire law. But it would extend this chapter too far to walk through the entire law with it. We may illustrate its limits by referring again to the title of — § 129. Slander and Libel. — There are many people who deem it to be the social duty of the editor of a newspaper to state therein whatever news comes to him derogatory to the character of anybody, if apparently well founded, and he be- lieves it ; herein placing the newspaper on a different ground from a mere ordinary individual, who has no such obligation 1 Bishop Con. § 236. » Beach v. Trudgain, 2 Grat. 219 ; * Surocco V. Geary, 3 Gal. 69 ; Pre- Hale v. Lawrence, 3 Zab. 590. rogative Case, 12 Co. 12, 13 ; Bowditch * Weatherston v. Hawkins, 1 T. R. V. Boston, 101 TJ. S. 16 ; Com. Dig. 110 ; Gardner v. Slade, 13 Q. B. 796 ; Trespass, D. ; post, § 163. Pattison v. Jones, 8 B. & C. 578 ; Dale V. Hairis, 109 Mass. 193 ; post, § 304. 63 § 130 SOME PAETICULAU PBINCIPLES. [BOOK II. to the public as a newspaper man is assumed to have. But this view of the functions of a newspaper is not universal, and the supposed duty of a newpaper editor to slander men when- ever he can do it honestly has not become an established cus- tom. Therefore this sort of privilege is not recognized by the law.' § 130. The Doctrine of this Chapter restated. The doctrine of this chapter is, that the law recognizes the wider and more important social duties, not including herein many of the minor ones. Therefore it protects people in the honest discharge of those larger duties, even from the con- sequences of their own mistakes. So that one who casually suffers from another's doing of a duty of this sort is without remedy. 1 The reader may consult Common- Press, 34 Minn. 521 ; Jones «. Townsend, wealth V. Wright, 1 Cash. 46, 50, 62 ; 21 Fla. 431 ; Bronson v. Bruee, 59 Hamilton v. Eno, 81 N. Y. 116 ; Foster Mich. 467 ; Bradley ». Cramer, 66 Wis. i>. Scripps, 39 Mich. 376 ; Curtis v. 297. Mussey, 6 Gray, 261 ; Mallory v. Pioneer 54 CHAP. IX.] DISOBEYING LAW. § 132 CHAPTER IX. DISOBEYING THE LAW. § 131. Jndiciai Differences. — There are slight differences of opinion on some minor questions relating to our present topic. But in the main the doctrine is well settled, conform- ably to reason, namely, — § 132. Doctrine defined. — Whenever the common law, a statute, a municipal by-law, or any other law^ imposes on one a duty, if of a sort affecting the public within the princi- ples of the criminal law,^ a breach of it is indictable, and a civil action will lie in favor of any person who has suffered specially therefrom.^ Or, if the matter of the law involves only the interests of individuals, any one who has received harm from another's disobedience may have his suit against him for the damages.* But, if the law as interpreted was not meant to protect the class of persons to which the one suing belongs,^ or to protect anybody from the sort of injury com- plained of, or if in a way held to be exclusive ® it provides a different remedy, the action cannot be maintained.^ 1 Ante, § 112, 113. 6ff Cal. 182 ; Anonymous, 6 Mod. 27 ; i 1 Bishop Crim. Law, § 237. Owings v, Jones, 9 Md. 108 ; Savan- » Ante, § 71 ; Payne v. Partridge, 1 nah, &e. Eld. v. Bonand, 58 Ga. 180 ; Show. 255. WUIy v. Mulledy, 78 N. Y. 310. * 2 Inst. 55, 74, 118 ; The Mar- ' East Tennessee, &c. Eld. v. Feath- shalsea Case, 10 Co. 68 6, 74 J; Boyden era, 10 Lea, 103; Parker v. Barnard, V. Burke, 14 How. U. S. 575 ; Hayes v. 135 Mass. 116, 118. Michigan Cent. Eld. Ill U. S. 228 ; ° Not exclusive in Backenstoe v. Houston, &c. Co. v. Terry, 42 Texas, Wabash, &c. Ey. 23 Mo. Ap. 148 ; post, 451 ; Couch e. Steel, 3 Ellis & B. 402 ; § 141. Atkinson v. Newca.stle, &c. Co. Law ' Gorris v. Scott, Law Eep. 9 Ex. Eep. 6 Ex. 404; Bott v. Pratt, 33 125; Kirby v. Boylston Market, 14 Minn. 323 ; Schmidt v. Milwaukee, &o. Gray, 249 ; Flynn v. Canton Co. of Bal- Ey. 23 Wis. 186 ; Jessen i^. Sweigert, timore, 40 Md. 312 ; Heeney v. Sprague, 55 § 137 SOME PARTICULAR PRINCIPLES. [BOOK II. § 133. The Reason — of the doctrine is, that remedy is in- separable from law,i which cannot exist without it ; that each particular remedy must be adapted to its corresponding wrong, being an indictment for a wrong to the public and a civil action for one to an individual ; and that still a statute creating a right, or any other statute, may ordain any different remedy which the legislature prefers. To illustrate — § 134. Preventing the Doing. — If the law confers on one the right to do a thing, another who prevents his doing it disobeys the law, and consequently is liable to a suit for the damages.^ § 135. Refusing Copies. — A statute having made it the duty of the commissioner of patents to fui-nish copies on ap- plication, he is liable to an action if he declines. For, said Grier, J., " where there is a right on the one side, and a cor- responding duty imposed on the other, a refusal to perform such duty, on the reasonable request of the party entitled to demand it, will subject the officer to an action." ^ § 136. Not building Fence. — A railroad had the right of way across a public park, under a city ordinance which re- quired it to erect a suitable wall or fence. The company did not obey, and a boy was injured in crossing the track at a place where the fence should have been. It was held liable in damages.* But — § 137. Not clearing Sidewalk — (CSty By-laws). — We have cases which hold that, under city ordinances requiring land- owners to keep the sidewalks adjoining their estates clear of snow, one suffering through their neglect to obey cannot recover damages of them.^ Assuming these decisions to have been right, the just ground for them is that, the legal obliga- tion to keep the ways in repair being on the city, the purpose 11 R. I. 456 ; Ward v. Hobbs, 4 Ap. Cas. 575, 583. And see Lewis v. Brainerd, 13 ; Stevens v. Jeacocke, 11 Q. B. 731. 53 Vt. 510. 1 Bishop Written Laws, § 137. * Hayes v. Michigan Cent. Eld. Ill 2 Ante, § 31 ; Ashby v. White, 2 U. S. 228. Ld. Eaym. 938, Holt, 524 ; Perring v. 6 Kjrby v. Boylston Market, 14 Harris, 2 Moody & R. 5. And see the Gray, 249 ; Flynn v. Canton Co. of notes to Ashby w. White, in 1 Smith Baltimore, 40 Md. 312 ; Heeney v. Lead. Cas. Sprague, 11 R. 1. 456 ; Taylor v. Lake " Boyden v. Burke, 14 How. TJ. S. Shore, &o. Eld. 45 Mich. 74 56 CHAP. IX.] DISOBEYING LAW. § 140 of the ordinance was simply to create a duty from the land- owners to the city, not from them to persons using the ways, though this is not the reason always assigned in the opinion. That in various circumstances disobedience to a city ordi- nance may be the foundation of an action by a third person suffering therefrom is well settled iu law.^ Thus, in harmony with the case stated in the last section, — §138. Sign — Awning. — It has been adjudged that, if a city ordinance forbids the hanging of a sign over a public street, or prohibits awnings unless securely placed and sup- ported, one who puts out a sign contrary to the inhibition and it is blown down by the wind,^ or an insecurely supported awning and it falls,^ must make reparation to persons whose property is injured thereby. § 139. Doctrine Broad — Ziimits. — It was once judicially observed that " torts are infinitely various, not limited or con- fined, for there is nothing in nature but may be an instrument of mischief." * According to which view, and to common observation, there can be no bound to the possible illustra- tions of the doctrine of this chapter. And these few, only enough to make it distinct, will be as helpful as many would be to the practitioner, who must of necessity examine each question before him in the light of principle. In his appli- cations of the principles, he must keep in mind the qualifi- cations of them derivable from the other doctrines of the law. Thus,— § 140. Viewed as Negligence — Contributory Negligence. — It suits the argument in many of the cases for the judges to look upon disobedience to a legal command as an act of neg- ligence.^ Thereupon the doctrine of contributory negligence 1 Ante, § 136 ; Wilson v. White, 71 * Robertson v. Wabash, &c. Ey. 84 Ga. 506 ; Bowyer v. Burlew, 3 Thomp. Mo. 119 ; Moberly v. Kansas City, &c. & C. 362 ; Bott v. Pratt, 33 Minn. 323 ; Ry. 17 Mo. Ap. 518 ; Madison, &c. Jetter v. New York, &c. Rid. 2 Abb. Rid. v. Taffe, 37 Ind. 361 ; Siemers v. Ap. 458 ; Owings v. Jones, 9 Md. 108. Eisen, 54 Cal. 418 ; Billings v. Breinig, a Salisbury v. Herchenroder, 106 45 Mich. 65 ; Correll v. Burlington, &e. Mass. 458. Rid. 38 Iowa, 120 ; The Garden City, » Jessen v. Sweigert, 66 Cal. 182. 26 Fed. Rep. 766 ; Keyser v. Chicago, * Chapman v. Pickersgill, 2 Wils. &c. Ry. 56 Mich. 559 ; Devlin v. Gel- US, 146. lagher, 6 Daly, 494. 67 § 141 SOME PARTICULAR PRINCIPLES. [BOOK II. applies to the plaintiff, precluding his recovery in cases within its rules.i So, also, if the harm complained of did not come from the defendant's disobedience of law, but from something else, —that is, if in the other form of the expression it was not the product of his negligence, — the plaintiff cannot recover though the defendant did at the same time with the injury disobey the law.^ § 141. The Doctrine of this Chapter restated. One who disobeys the law subjects himself to any proceed- ing, civil or criminal, which the same law has ordained for the particular case. In the absence of which ordaining, or in the presence of it when not interpreted as excluding other methods,^ he is liable to those steps which the common law has provided for cases of the like class ; as, to an indictment, or to a civil action, or to both, according to the nature of the offending. The civil action is maintainable when, and only when, the person complaining is of a class entitled to take advantage of the law, is a sufferer from the disobedience, is not himself a partaker in the wrong of which he complains, or is not otherwise precluded by the principles of the common law from his proper standing in court. 1 Meek v. PennsylvaDia Co. 38 Ohio Mo. 562 ; Moore v. CUcago, &c Eld. State, 632 ; Howenstein v. Pacific Rid. 62 Mo. 584. 65 Mo. 33 ; The Ebor, 11 P. D. 25 ; « Bishop Written Laws, § 134, 137, Williams v. Chicago, &c. Ry. 64 Wis. 1. 138, 163 e, 250. 250 a, 250 i, 251 ; Par- s Holman v. Chicago, &e. Rid. 62 ker v. Barnard, 135 Mass. 116, 120. 58 CHAP. X.] WILFULLY INJURING OTHERS. § 144 CHAPTER X. WILFULLY INJURING OTHERS. § 142. 'Wilftil distdnguished from Accidental. — There is a wide difference between one's injuring another wilfully, and doing to him a like harm unmeant while discharging a duty or lawfully pursuing an interest.^ Many unintended injuries are actionable,^ but the damages even for these may in some cases be enhanced by showing the wrong to have been wilful.^ Now, — § 143. Doctrine defined. — " An act which does not amount to a legal injury cannot be actionable because it is done with a bad intent." * But whenever one inflicts on another a legal injury purposely, and not in the lawful exercise of any right or duty,* he is liable in damages therefor.^ To illustrate, — § 144. Threat not to Employ — Preventing unlawful Act. — No one can, in the absence of contract, require another to employ him: so that to refuse employment is not a legal injury. Therefore, where a person in the habit of hiring men maliciously kept the owner of a house from letting it, by an- nouncing that he would not hire any one who should take it, he inflicted no legal injury on the owner, who therefore could 1 Ante, § 16. Cullough v. Walton, 11 Ala. 492 ; Jen- * Ante, § 101; Vandenburghr.Truax, nings v. Maddox, 8 B. Monr. 430 ; Best 4 Denio, 464 ; Walton ». Booth, 34 La. v. Allen, 30 111. 30 ; Striegel v. Moore, An. 913 ; Welch *. Durand, 36 Conn. 55 Iowa, 88 ; Lewis v. Bulkley, 4 Daly, 182 ; Hansford 0. Payne, 11 Bush, 380 ; 156 ; Elliott v. Van Buren, 33 Mich. Underwood v. Hewson, 1 Stra. 596 ; 49 ; Drohn v. Brewer, 77 111. 280. Tally V. Ayres, 3 Sneed, 677 ; Moulton * Parke, B. in Stevenson v. Newn- V. Aldrich, 28 Kan. 300 ; Spencer v. ham, 13 C. B. 285, 17 Jur. 600, 602. Campbell, 9 Watts & S. 32. ' Ante, § 110-130. « Day V. Woodworth, 13 How. U. S. " Stevens v. Kelley, 78 Maine, 445 ; 363, 371 ; Philadelphia, &c. Bid. v. Jones v. Jones, 71 111. 562. Quigley, 21 How. U. S. 202, 213 ; Mo- 69 §147 SOME PARTICULAR PRINCIPLES. [book II. not maintain an action against him.^ So likewise it is not a legal injury to prevent one's doing an unlawful act ; and for this, however wilful, no action will lie.^ § 145. MaUcioua Prosecution. — It is ordinarily lawful, and sometimes commendable, to set in motion against one the pro- cesses of the court ; but he who, without probable cause, does this from an evil motive — that is, wilfully harms another in this way — is liable to respond in damages.^ § 146. Bisewhere — In General. — In a chapter further on * we shall consider the element of intent in private wrongs. And in other places it will frequently come under our notice incidentally. It need only be added here that the common law regards less favorably the wilful doer of an injury than the accidental one,^ and the same principle is not unfrequently carried into legislation.® § 147. The Doctrine of this Chapter restated. The law in various cases furnishes redress for the injuries which one has received from another unmeant. But the wilful doing of a wrong is more reprehensible than the acci- dental. There are circumstances which will excuse the un- intentional wrong-doer, but none which will excuse the intentional. So that he who purposely does harm to another must respond to him in damages for it, whenever it is of a sort and degree ^ cognizable by the courts within the general principles of the law. 1 Heywood v. Tillson, 75 Maine, 225. 2 Bangor, &o. Rid. v. Smith, 49 Maine, 9. » Post, § 221 ; Stevens v. Midland Counties Ky. 18 Jur. 932 ; Wicks v. Fentham, 4 T. K. 247 ; Farmer v. Dar- ling, 4 Bar. 1971, 1974 ; Morris v. Scott, 21 Wend. 281 ; Stone v. Stevens, 12 Conn. 219 ; Lindsay o. Lamed, 17 Mass. 190, 196. * Post, § 495 et seq. 6 Matthews v. Warner, 29 Grat. 570 ; St. Louis, &o. By. v. Wilkersou, 46 Ark. 513 ; Forney v. Geldmacher, 75 Mo. 113 ; Topf V. West Shore, &o. Ter. Co. 17 Vroom, 34; Lynch v. McNally, 7 Daly, 126 ; Campbell v. Stakes, 2 Wend. 137 ; Tarleton v. McGawley, Peake, 205 ; Keeble ». Hickeringill, 11 East, 574, note ; Mnnger*». Baker, 1 Thomp. & C. 122. 8 Pier V. Hanmore, 86 N. Y. 95 ; Pier V. George, 86 N. Y. 613 ; Walker V. Homer, 1 Q. B. D. 4 ; Claxton v. Lexington, &c. Rid. 13 Bush, 636 ; Gully V. Smith, 12 Q. B. D. 121. ' Ante, § 16. CHAP. XI.J CARELESSLY INJURING OTHERS. § 150 CHAPTER XI. CARELESSLY INJURING OTHERS. § 148. Further on -j- There is a chapter on Negligence,^ considered as a separate title in the law of our subject. The present chapter is necessary to the completion of this prelim- inary view, but because of the other it may^ be brief. §149. Careless compared -with Wilful' — Accidental. — The evil mind whence injury flows from one to another may be of any imaginable grade, from the lack of the utmost careful- ness, through reckless carelessness, down to the premeditated determination to do the injury. And the doer is more or less reprehensible according to the intensity of the evil which con- trols him. So that the careless harm of this chapter differs from the wilful of the last only as its position is intermediate between it and the purely accidental. One may be liable for an injury which comes through his carelessness when he would not be if he had been absolutely careful; or he may be excused for the careless infliction when he would not be had it been wilful. Now, — § 150. Doctrine defined. — The doctrine of this chapter is, that every man should be considerate of the interests of others, and conduct his own affairs and volitions with such carefulness as not needlessly to endanger them ; so that, whenever one's want of due care results in a " legal injury " ^ to another, he is liable in damages therefor, if the injury is of sufiicient magnitude,^ and the case is otherwise within the principles which create liability.* Thus, — 1 Beginning at § 433. * Post, § 436 ; Noyes v. Shepherd, 2 Ante, § 143. 30 Maine, 173 ; Tally v. Ayres, 3 Sneed, 8 Ante, § 3.5, 36. 677 ; Abel v. Delaware, &c. Canal, 103 61 § 154 SOME PABTICDLAB PRINCIPLES. [BOOK II. § 151. Loaded Firearms — are dangerous if not properly handled. And one is careless who entrusts a loaded gun to a twelve year old child; he should first draw the charge. Therefore if it goes off in the hands of such a child, inflicting harm on another, he must answer for the wrong.^ And — § 152. Dangerous Pile. — If one SO carelessly builds a wall or pile of timber or other things, where people are in the habit of passing, that it is liable to fall, and it does fall, injur- ing another, a suit may be maintained against him for the damages.^ § 153. other Illustrations — might be added, covering the whole field of life. But to proceed so far would be needless, since the principle is the same in the various classes of cases. And though some further expansions of the doctrine, and especially a defining of its limits, are desirable, it is better they should be postponed until we reach the title Negligence. § 154. The Doctrine of this Chapter restated. Though activity is a necessity of our earthly being, so that one is not suable for being active even where another is un- fortunately injured thereby, yet no one is obliged to put forth his activities carelessly. And he who thus needlessly does it, bringing to another harm which he might avoid, is responsi- ble, if the harm is of the legal sort, and none of the justifica- tions or excuses pertaining to this department of our law come to his relief. N. Y. 581 ; Devlin v. Smith, 89 N. Y. 93 Ind. 476 ; Kimtall v. Norton, 59 470 ; Brown v. Hannibal, &e. Eld. 50 N'. H. 1 ; Murphy v. Orr, 96 N. Y. 14 ; Mo. 461, 468 ; Meredith v. Reed, 26 Chicago, &e. By. v. Hughes, 69 III. Ind. 334 ; Freer v. Cameron, 4 Rich. 170 ; Welch v. McAllister, 15 Mo. Ap. 228 ; CoUett v. London, &o. By. 16 492 ; Howe v. Young, 16 Ind. 312. Q. B. 984 ; Gray n. PuUen, 5 B. & S. i Dixon v. Bell, 1 Stark. 287. And 970 ; Butler «. Milwaukee, &c. By. 28 see Chataigne v. Bergeron, 10 La. An. Wis. 487 ; Taylor v. Holman, 45 Mo. 699 ; Cole ». Fisher, 11 Mass. 137, 138. 371 ; Kahl V. Lore, 8 Vroom, 5 ; Tuel 2 Pastene ». Adams, 49 Cal. 87 V. Weston, 47 Vt. 634 ; Pierce v. Whit- Maddox v. Cunningham, 68 Ga. 431 comb, 48 Vt. 127 ; Wagner v. Gold- Mullen v. St. John, 57 N. Y. 867 smith, 78 Ind. 517 ; Conradt v. Clauve, Jager v. Adams, 123 Mass. 26. 62 CHAP. XII.] NECESSITY AND THE INEVITABLE. § 168 CHAPTER XII. NECESSITY AND THE INEVITABLE. § 155. Iq^troduction. 156-165. Doctrine of Necessity in General. 166-172. Superior Forces of Nature — Act of God. 173i 174. Superior Human Forces. 175. Interpositions of Law. 176-184. Common Accidents of Life. 185. Doctrine of Chapter restated. § 155. How Chapter divided. — We shall consider, I. The Doctrine of Necessity in General ; II. The Superior Forces of Nature, or Act of God; III. The Superior Human Forces; IV. The Interpositions of Law ; V. The Common Accidents of Life. I. The Doctrine of Necesgity in General. § 156. Obedience possible. — A command which cannot be obeyed is not law. Therefore possible obedience is an insep- arable element in every law, without which it cannot exist. So that, though a command should be such as could in general be carried out, if in a particular instance it became impossible, it would not be law for that instance. Hence, — § 157. Doctrine defined. — A necessity which precludes compliance with any law, of whatever sort, constitutional, statutory,^ or common law, renders the law for the occasion null, and justifies non-compliance. § 158. Maxims. — Not only are these propositions self- evident, but their early recognition in our legal system is » Bishop Written Laws, § 41, 132. 63 § 160 SOME PARTICULAE PRINCIPLES. [BOOK 11. attested by a series of maxims.^ The one perhaps most apt is Lex non cogit ad impossibilia, the law does not seek to com- pel things impossible;^ or, what is like this in meaning, Im- potentia excusat legem? A maxim less broad is Actus Dei nemini facit injuriam, the act of God shall affect no one inju- riously.* Other maxims present the idea in varying aspects, but tliey do not change its substance. § 169. Universal. — This doctrine, from its nature, cannot be and is not limited to any one branch of the law, it pervades the whole. It is prominent in the criminal law, as to which the author has explained it in other connections.^ He has also explained it as to the law of contracts.® But in the latter there is a difference between it and the doctrine now under consideration, rather apparent than real. A party to a con- tract may validly undertake to pay the damages which the other party suffers from his not doing the thing promised, even where it was the act of God which prevented him.'^ And always one's promise to do a thing possible to man in hi^ private capacity carries with it the , implied warranty of capa- city.^ But in tort, where the duties which people owe to one another come simply from the law, there is no room for this sort of distinction. § 160. Limits of Doctrine. — Plain as this doctrine is, when stated in these general terms, its limits are not so palpable. Even the word " necessity " is very elastic in meaning ; being sometimes applied to what is highly convenient only, at other times to what is physically unavoidable, while its meaning on other occasions ranges all the way between these extremes. Our common law is a system of practical rules for the govern- ment of imperfect beings, and it adapts itself to man as he is, not as he would be if he were infinite in wisdom and power, like the Maker. Hence its excusing necessity is of a practical 1 A partial collection of them may be incidentally 1 Crim. Law, § 53, 54, 824, found in Abbott Law Diet. NecessUas. 842-844 ; 1 Crim. Proced. § 7, 224 a, 2 Broom Leg. Max. 2d ed. 181. 264 6, 264 i, 676 ; Stat. Crimes, § 124, 8 Broom Leg. Max. ut sup. 125, 132, 137, 238, 755. * Broom Leg. Max. 2d ed. 171. « Bishop Con. § 577-609. « 1 Bishop Crim. Law, § 346-355 ; ' lb. § 582, 590. 1 Bishop Crim. Proced'. § 493-498 ; and » lb. § 246, 591, 1416. 64 CHAP. XII.] NECESSITY AND THE INEVITABLE. § 162 sort ; in the law of torts it is such as, in the particular cir- cumstances, renders it practically impossible for the particular human being to do otherwise. To illustrate, — § 161. Defence against Public Enemy — War. — The de- fence of the country is a supreme necessity. And private rights must, within the usages of war, give way to it. So that, for example, one whose land is entered upon and dug up, or whose property is even destroyed, in such defence, can maintain no action against the defenders.^ And within this rule, whenever, in war, private property is in good faith and according to the usages of war burned to prevent its falling into the hands of the enemy, the owners cannot have redress.^ Now, even this necessity, high as it is, is not of the absolute physical sort; for the warring army might yield and be beaten, and suffer the country to be destroyed. But practi- cally it is absolute, since the life of a nation is an object not less sacred than the life of the law itself. Again^ — § 162. Public Way Impassable — (Private). — Though loco- motion is to man an absolute physical necessity, he can breathe and accumulate food without travelling upon a par- ticular road. But when the governing power establishes a public way, it thereby declares that there is a social necessity for its use. The consequence of which is, that when such a way becomes for the occasion founderous or otherwise impos- sible to be travelled upon, the traveller may pass over the ad- joining lands, doing no avoidable injury, without being liable to the owner as a trespasser.^ We have a dictum that this right does not extend to cases wherein, " by the exercise of due care, after notice of obstructions, other ways may be selected and the obstructions avoided." * We may doubt whether this exception to the right could be applied when it would 1 Prerogative Case, 12 Co. 12. Harrison, 4 M. & S. 387, 393 ; Holmes 2 Ford V. Surget, 97 U. S. 594. ■». Seely, 19 Wend. 507 ; Williams v. » Campbell v. Race, 7 Gush. 408 Safford, 7 Barb. 309 ; Newkirk v. Sa- (citing, besides the text-books, Henn's bier, 9 Barb. 652) ; Morey «. Fitzgerald, Case, W. Jones, 296 ; 3 Salk. 182 ; Ab- 56 Vt. 487. sor V. French, 2 Show. 28 ; Young v. * Big&Iow, J. in Campbell v. Eaoe, , 1 Ld. Eaym. 725 ; Taylor v. supra, at p. 413. Whitehead, 2 Doug. 745 ; Bullard v. 5 65 § 164 SOME PARTICULAR PRINCIPLES. [BOOK II. impose a great amount of extra travel ; since the necessity of passing over the particular way, not another, was adjudged by the act of laying it out. But there is no such adjudication in the case of a private way, to which, therefore, this right of passing over adjoining lands does not ordinarily extend.' Yet, if the owner of the adjoining lands himself obstructs the private way, he has thereby himself created, as to the owner of the way, the necessity which gives the right to pass over those lands.^ Once more, — § 163. Saving Property. — The social duty of saving prop- erty, spoken of in a preceding chapter,^ is sufficient to found a necessity justifying a trespass, even to the extent of destroy- ing a less amount of other property. So that, for example, one may enter upon another's land " to save goods which are in jeopardy of being lost or destroyed by water, fire, or any like danger," even where they belong to a third person.* And a jettison, when necessary, may be made without involv- ing the can-ier in liability for the loss.^ Under a similar necessity sufficiently extreme, the master of a stranded vessel, acting in good faith, may sell it and the cargo to protect the owners from greater loss.* §164. Avoidable — (Small-pox). — A step which may be avoided is not a necessity. For example, it is necessary as a duty due to the whole community, to prevent the spread of contagious diseases ; but a particular step to this end may be necessary or not according to the circumstances. " The stat- ute," it was said in a Connecticut case, "has made all reason- able and practicable provision to prevent the spreading of such diseases, consistent with the right of domicil and prop- > Taylor v. Whitehead, 2 Dong. 745 ; ter upon the land of another, firemen Bakeman v. Talbot, 31 N. Y. 366, 372 ; may do so for the protection of prop- Holmes V. Seely, 19 Wend. 607 ; Bui- erty, officers of the law for similar pur- lard «. Harrison, 4 M. & S. 387, 392. poses, and, under proper circumstances, 'i Kent V. Judkins, 53 Maine, 160 ; for the arrest of offenders or the execu- Haley v. Colcord, 69 N. H. 7. tion of criminal process." * Ante, J 126. » Price w. Hartshorn, 44 N. Y. 94. * Proctor V. Adams, 118 Mass, 376, " New England Ins. Co. v. The Sarah opinion by Gray, C. J. ; Parker v. Bar- Ann, 13 Pet. 387 ; Post -o. Jones, 19 nard, 135 Mass. 116, 117, Devens, J. How. U. S. 160 ; The Amelie, 6 Wal. adding : " As individuals may thus en- 18 ; Hayman v. Molton, 5 Esp. 65. CHAP. XII.] NECESSITY AND THE INEVITABLE. § 169 erty ; " therefore one could not lawfully place a family infected with small-pox i in an unoccupied dwelling-house of another, without his consent, or authority from the board of health.^ § 165. Further — of the nature and limitations of the gen- eral doctrine will appear in the expositions of the subsequent sub-titles. II. The Superior Forces of Nature, or Act of God. § 166. Act of God. — What comes from the superior forces is commonly in our b®oks termed the " act of God." ^ It may be defined to be a manifestation of nature to which man has not contributed and which he cannot overcome ; examples whereof are lightning and the fire it kindles, cold, a tempest.* Now, — § 167. Doctrine defined. — The interposition of the act of God excuses one from any duty imposed by law.^ Thus, — § 168. stress of 'Weather. — A vessel driven into a port by stress of weather, which is an act of God, is not liable to for- feiture as for breach of an embargo, or of a revenue law,® or of a blockade.^ So, — § 169. Scaffold — Liberty-pole — Pire. — If one with due care erects a scaffold for the repair of a house, and an extraor- dinary wind blows from it a plank which falls on a passer-by in the street, he is not responsible.^ And the like rule applies to a liberty-pole, which such wind causes to fall.® Or if, for a needful purpose and with due care, a man lights a fire on his own grounds, and thereupon an impetuous and sudden wind bears it to a neighbor's, where it does damage, he is excused because the injury came from the act of God.^" Again, — 1 Ante, § 125. ' The Nuestra Senora de Eegla, 17 2 Beckwith v. Sturterant, 42 Conn. Wal. 29. 158. 8 Hexamer v. 'Webb, 101 K. Y. 377, ' Ante, § 158. a case not absolutely apt to the point in * Bishop Con. § 593 ; Forward v. the text, but reasonably so. Pittard, 1 T. R. 27, 33 ; Gordon v. Bu- « Allegheny v. Zimmerman, 14 Nor- chanan, 6 Yerg. 71, 82 ; Merritt ii. ris. Pa. 287. Earle, 29 N. Y. 115. '• Tnrberville v. Stamp, 1 Comyns, 6 Bishop Con. § 695. 32, 33. « 1 Bishop Crim. Law, § 351. 67 § 172 SOME PARTICULAR PRINCIPLES. [BOOK II. § 170. RaUroad Bridge — Track. — Where a cloud-burst causes a well-built railroad bridge to fall, the company is not liable for consequential damages.^ And it is the same where a train is overturned through the sudden weakening of the track by a violent storm, if the company £lnd its employees are free from negligence.^ § 171. The lUuBtrations — of this doctrine are innumerable. We shall here consider only one other, which somewhat differs from the foregoing ; namely, — § I72. Attritioa and Accretion. — Where the forces of na- ture, such as a running stream or the wind or tide-moved ocean, and even where artificial causes^^ gradually and imperi ceptibiy wear away the soil belonging to a man, or make deposits upon it, there is no practical rule but to compel him to suffer the loss of what is thus taken from him, or permit him to enjoy as gain what is thus given him. And so the rule is that the owner loses whatever land is removed by at- trition, and gains what is added by accretion.* So that, for example, if two persons own land, the one on the one side and the other on the other side of a running stream, each bounded by the thread of the stream, which by an imper- ceptible process changes its position, their respective bounda- ries change therewith.^ And the same rule applies in other analogous cases.^ 1 EodgeiB V. Central Pacific Eld. 67 P. C. 140 ; "Wilson ». Shiveley, 11 Ore- Cal. 607. See Illinois Cent. Eld. v. gon, 215 ; Mussumat Imam Baudi v. Bethel, 11 Bradw. 17. Hurgovind Ghose, 4 Moore Ind. Ap. 2 Ellet V. St. Louis, &c. Ey. 76 Mo. 403 ; Posey i>. James, 7 Lea, 98 ; Muliy 518. Compare with Philadelphia, &c. v. Norton, 100 N. Y. 424 ; Campbell v. Eld. ». .^nderson, 18 Norria, Pa. 351 ; Laclede Gas-light Co. 84 Mo. 352 ; Don- Gates V. Southern Minnesota By. 28 ovan a. New Orleans, 35 La. An. 461 ; Minn. 110. Kehr v. Snyder, 114 111. 313 ; Linthicum * Attorney-General v. Cbamhers, 5 v. Coan, 64 Md. 489. Jul-. N. s. 745, 4 De 6. & J. 55 ; Steers 5 Niehaus v. Shepherd, 26 Ohio State, V. Brooklyn, 101 N. Y. 51. 40. * Eex V. Yarborough, 2 Bligh N. s. « Buse v. Eussell, 86 Mo. 209 ; Cam- 147, 1 Dow & C. 178, 3 B. & C. 91 i In den, &c. Land Co. v. Lippincott, 16 re Hull, &c. By. 5 M. & W. 327 ; Vroom, 405 j Bonewits v. "Wygant, 75 Seebkristo v. East India Co. 10 Moore Ind. 41. 68 CHAP. XII.] NECESSITY AND THE INEVITABLE. § 176 III. The SupeHor Human Forces. § 173. Act of Public Xinemy. — An individual man can no more contend with the public enemy than with God. And the act of the public enemy stands as an excuse on the same footing with the other.^ By this expression are meant the ravages or restraints of war, but not of a robber or a mob.^ Still,— § 174. Mob. — Though a mob, for example, is not a public enemy, there are circymstances in which it will excuse delay while its force is in operation. Thus, a common carrier must transport the goods in a reasonable time, and hindrance by a mob may render a time reasonable which otherwise would be unreasonable.'^ IV. The Interpositions of Law. § 175. The Doctrine — of this sub-title is the mere truism that, if the law of to-day forbids what it required or permitted yesterday, the doing of it to-day, is not to-day commanded or allowed by the law. This is a matter claiming some consid- eration in the law of contracts ;* it is mentioiied here simply to give-completeness to the present elucidations. V. The Common Accidents of lAfe. § 176. Are a Necessity. — Since man is imperfect, and the law is made for him as thus viewed,* it must recognize, the same as our natural reason does, the fact that the affairs of human existence cannot be carried on without accidents; therefore accidents are a necessity. And this form of neces- sity must be and is as valid an excuse for violating a rule of law as any other. Hence, — 1 Bishop Con. § 592, 593, 595 ; Pre- « Geismer v. Lake Shore, &e. By. 102 rogatite Case, 12 Co. 12; Dunson v. N. Y. 563. And see Bishop Con. § 482, New York Cent. Eld. 3 Lans. 265 ; Dale 596. ». Hall, 1 was. 28 i. * Bishop Con. § 594. » Bishop Con. § 693, 596. * Ante, § 160.. 69 § 181 SOME PARTICULAR PRINCIPLES. [BOOK H. § 177. Doctrine defined. — One is not entitled to remunera- tion for any injury which comes to him from another through any of the common accidents of life, not imputable to negli- gence, or to a violation of law.^ But — § 178. Unlawful Act. — A person doing an unlawful act cannot invoke this principle. He must make good the dam- age which he creates.^ For, since no necessity compels the activities of life to extend to law-breaking, one who thus in- jures another in doing what is not only needless but an evil and a wrong, ought to repair the mischief.^ For a like rea- son, and within principles laid down in previous chapters, — § 179. Carelessness. — He who harms another through care- lessness, in doing a thing however lawful or necessary, must indemnify him.* § 180. Elsewhere. — The doctrine of this sub-title presents itself in numerous connections throughout the volume. So that illustrations of it will be accumulating as we proceed. Sufficient may be added here to give it a little more form and distinctness. Thus, — § 181. Farting Dogs fighting — Persons fighting. — It is a 1 Wakeman v. Robinson, 1 Bing. SuUiyan v. Scripture, 3 Allen, 564 ; 213, 8 Moore, 63 ; Bullock v. Eabcock, Morgan v. Cox, 22 Mo. 373 ; Brown v. 3 Wend. 391 ; Viets v. Toledo, &c. Ry. Kendall, 6 Cush. 292 ; Paxton v. Boyer, 55 Mich. 120 ; Hoff v. West Jersey Eld. 67 111. 132 ; Holmes v. Mather, Law 16 Vroom, 201 ; Nitro-glycerine Case, Rep. 10 Ex. 261, 14 Eng. Rep. 548, 556, 15 Wal. 524 ; McGrew v. Stone, 3 and Moak's note. Smith, Pa. 436 ; Beckwith v. Shordike, * Jones ». Festiniog Ry. Law Rep. 3 4 Bur. 2092 ; Ward v. Jefferson, 24 Wis. Q. B. 733, 736 ; Vandenburgh v. Truax, 342 ; Goodnough v. Oshkosh, 24 Wis. 4 Denio, 464 ; James v. Campbell, 5 549 ; Anthony v. Louisville, &c. Ry. Car. & P. 372 ; Brown v. Kendall, 6 27 Fed. Rep. 724 ; Harvey ». Dunlop, Cush. 292 ; Davis v. Saundera, 2 Chit. Hill & D. 193 J Kentucky Cent. Rid. v. 639. See Bizzell v. Booker, 16 Ark. Thomas, 79 Ky. 160 ; Sorenson ii. Me- 308. nasha Paper, &c. Co. 66 Wis. 338 ; ' And see ante, § 104, 116, 131-141. Stainback ». Rae, 14 How. U. S. 532 ; 4 Ante, § 104, 115, 148-154 ; post. Miller v. Martin, 16 Mo. 508 ; Fanjoy § 433 et seq. ; . Newton v. Pope, 1 Cow. V. Seales, 29 Cal. 243 ; Strouse v. Whit- 109 ; Holmes v. Mather, Law Rep. 10 tlesey, 41 Conn. 559 ; Taylor v. Atlan- Ex. 261 ; Chicago, &c. Rid. v. Stumps, tic Mut. Ins. Co. 2 Bosw. 106 ; Atchi- 69 111. 409 ; Weaver v. Ward, Hob. son, &e. Rid. v. Riggs, 31 Kan. 622 ; 134, Sir F. Moore, 864 ; Turbervil v. Hearn v. St. Charles St. Rid. 34 La. An. Stamp, Comb. 459, 12 Mod. 152 ; Lit- 160 ; Wolf V. Kilpatrink, 101 N. Y. tleton ». Cole, 5 Mod. 181. 146 ; Klatt v. Milwaukee, 53 Wis. 196 ; 70 CHAP. XII.] NECESSITY AND THE INEVITABLE. § 184 lawful and proper act, in one who sees his dog and another's fighting, to part them. If he does it carelessly, and thus in- jures a third person, he is responsible. But where the stick which he not incautiously raises accidentally strikes the other, — in the words of Shaw, C. J., " if it appears that the defend- ant was doing a lawful act, and unintentionally hit and hurt the plaintiff, — then, unless it also appears to the satisfaction of the jury that the defendant is chargeable with some fault, negligence, carelessness, or want of prudence, the plaintiff fails to sustain the burden of proof, and is not entitled to recover." ^ But if two persons fight, doing therefore what is unlawful, and one of them accidentally strikes a third, he must pay the damages.^ Again, — § 182. Horse3 in Travelling — Collision. — If a competent driver goes upon the highway with horses reasonably pre- sumed to be safe and manageable, he is not liable to a person injured by their running away, — as, for example, where they are frightened by a locomotive or other object, — while him- self without fault.' In like manner, where, in the night, two teams collide in consequence of a third standing on the side of the street, the driver of neither seasonably seeing the other, the case is one of inefitable accident, and each must bear his own loss.* So, — § 183. Mill-dam. — One who builds a mill-dam, upon a proper model, and with good work, is not liable though it breaks away, and the rushing waters destroy another's mill and dam below. If he were negligent therein the conse- quence would be the reverse." § 184. steam Engine. — Where a man lawfully and propei'ly builds on his own premises a steam-engine, he is in the ab- sence of negligence not liable for damages done by its burst- ing,® or (as in the case of a railroad) by sparks emitted from 1 Brown v. Kendall, 6 Cash. 292, Daly, 487 ; Shawhan «. Clarke, 24 La. 298. An. 890. 2 James v. Campbell, 5 Car. & P. 372. * Strouse v. Whittlesey, 41 Conu. » Brown v. Collins, 53 N. H. 442 ; 559. Holmes v. Mather, Law Bep. 10 Ex. ' Livingston v. Adams, 8 Cow. 175. 261 ; Hammack v. White, 11 C. B. N. s. ° Marshall v. Welwood, 9 Vroom, 688 ; Quinlan v. Sixth Avenue Eld. 4 339 ; Losee v. Saratoga Paper Co. 42 71 § 185 SOME PARTICULAR PRINCIPLES, [BOOK II. the chimney.^ But it is othervrise if the engine is put into use unlawfully.^ § 185. The Doctrine of this Chapter restated. Necessity is a supreme law over man, he is powerless to contend against it. Therefore the law of the land never sets itself against this force j and, in. whatever terms a law is expressed, it is construed as subject to this exception. The common illustrations of necessity are the requirements of the government in defending the country and in making war; the operation of overpowering physical forces, termed the act of God ; the doings of a public enemy ; and, most common of all, the every-day accidents of life. But nothing. is deemed a necessity which prudence and carefulness, in degree such as are reasonably to be expected from, imperfect man, can anticipate and avoid. How. Pr. 385 ; Losee v. Buchanan, 51 Latshaw, 12 Norris, Pa. 449 ; Atchison, N. Y. 476. &c. Eld. v. Eiggs, 81 Kan. 622. ' HofiF».West Jersey Eld. 16 Vroom, * Ante, § 178; Jones v. Festiniog 201 ; Jennings v. Pennsylvania Eld. 12 Ey. Law Eep. 3 Q. B. 733. NorriSj Pa. 837 ; Eeading, &c. Eld. ». 72 '■ ■ CHAP. XIII.] , , ASSAULT AND BATTEBy. § 188 BOOK III. WEONGS WITH PARTICULAR NAMES. CHAPTER XIII. ASSAULT AND BATTERY. § 186-188. Introduction. 189-197. What constitutes. 198-200. The Defences. 201-203. Eights of Third Persons. 204. Doctrine of Chapter restated. § 186. Name — Assault — Battery, -r- The wrong to be con- sidered ia this chapter early received the double name of assault and battery, and as such it has come down to us. But practically in our books the word " assault " is often used to convey the full idea meant by both words. Moreover, — § 187. Civil and Criminal. — The same act of wrong, whether assault or battery, while actionable as a civil trespass, is also indictable as a crime, and neither proceeding is a bar to the other.i Yet there are places at which the civil wrong and the criminal are not absolutely coincident, so that one of the pro- ceedings is maintainable and the other not.^ § 188. How Chapter divided. — We shall consider, I. What 1 1 Bishop Crim. Law, § 264.^266, lips v. Kelly, 29 Ak. 628; Moses v.- where this matter is explained more at Bradley, 3 Whart. 272. large ; Towle ». Blake, 48 N. H. 92 ; ^ post, § 196, 197 ; Coward v. Bad- Rex V. Warden of Fleet, 12 Mod. 397, deley, 4 H. & N. 478, 5 Jur. n. s. 414 j 339 ; Jones v. Clay, 1 B. & P. 191 ; Higgins v. The State, 7 Ind. 549. Crosby v. Leng, .12 East, 409; Phil- 73 § 191 WRONGS WITH PARTICULAR NAMES. [BOOK III. censtitutes the Civil Wrong ; II. The Defences ; III. The Rights of Third Persons. I. What constitutes the Civil Wrong. § 189. Own Person. — Every man is the sole custodian of his own physical person. No other has the right even to touch it unlicensed ; and another wrongs him who does to him any physical violence however slight, or puts in motion any physical forces which may reasonably create in him an apprehension that violence will immediately follow. Hence, — § 190. Doctrine and Terms defined. — Every battery includes an assault, so that the term " assault and battery " is simply an equivalent for " battery " alone. A battery is committed whenever one brings any unlawful physical force into actual contact with the person of another; an assault, when the physical force, stopping short of a battery, has proceeded so far that he may reasonably apprehend an immediate contact.^ He who eniploys the force, either inflicting on the mind the presumptive fear of the contact, or on the body the suffering or even the indignity of actual contact however slight, is liable to the other in damages. To illustrate, — § 191. Instances of Assault. — It is an assault for one, at such a distance and under such circumstances as render dan- ger apparent, to strike at another with or without a weapon, or present a gun at him, or point a pitchfork at him, or hold up at him the fist, or draw a sword and wave it in a menacing manner.2 So also it is, for one on horseback to ride after an- other on foot, and compel him to run to avoid being beaten.^ And where a man entered the sleeping-room of a blind girl at midnight, sat leaning over her upon the bed, and urged her to an unlawful connection, being " so near as to excite the fear > 1 Bishop Crim. Law, § 548 ; 2 lb. 435 ; Barnes v. Martin, 15 Wis. 240 § 23, 70-72 J Johnson v. Tompkins, Beach v. Hancock, 7 Fost. N. H. 223 Bald. 571, 600 ; Bishop v. Banney, 59 Osbom v. Veitch, 1 Fost. & F. 317 Vt. 316. Read v. Coker, 13 C. B. 850, 17 Jur. ^ Bac. Abr. Assault and Battery, A. ; 990. Genner v. Sparks, 6 Mod. 173, 174 ; « Mortin v. Shoppe, 3 Car. & P. 373. United States v. Hand, 2 Wash. C. C. See The State v. Sims, 3 Strob. 187. 74 CHAP. XIII.] ASSAULT AND BATTERY. § 194 and apprehension of force in the execution of his felonious purpose," he was adjudged to have committed an assault.^ § 192. Instances of Battery. — It is a battery for a man in anger to touch another, however slightly,* to throw on another vitriol 3 or even water,* or to strike the horse on which an- other is riding and thereby cause him to be 'thrown.* To injure another by putting in motion any of the elements of nature, which thereupon take effect on him, is also a bat- tery;® as, to discharge a gun, knowing him to be sick and liable to be harmed by the noise, if the harm follows,^ the battery consisting in the beating of the vibrations of the air upon his ear and nerves. But it is not a battery simply to stand still, like an inanimate object, and by the mere inertia of the motionless body to prevent another's passing through the place occupied.* § 193. Mediate or Immediate. — It is immaterial to the con- stitution of a battery, whether the touch or violence to the person comes directly from the other's act, or whether it combines with intermediate forces all working out together the final result,* as, in the case of a squib, mentioned in a preceding chapter.'" So that, where one seized another by the arm, swung him around until he became dizzy, then let him go, striking a third person, who instantly pushed him against a hook whereby he was injured, the first was adjudged an- swerable for the entire battery .^^ § 194. The Danger in Assault. — From the principle that one is not entitled to complain of a thing until it has done him harm,'* it follows that a mere assault, which touches the mind and does not reach the body, can exist only where there is such an act under such circumstances as may create a rea- 1 Newell V. "WTiitoher, 53 Vt. 589. ' Commonwealth v. Wing, 9 Pick. ' Cole V. Turner, 6 Mod. 149. 1, compared with Cole a. FisheT, 11 1 Munter v. Bande, 1 Mo. Ap. 484. Mass. 137. ♦ Pursell V. Home, 3 Nev. & P. 564. » Innes v. Wylie, 1 Car. & K. 257. 6 Dodwell V. Burford, 1 Mod. 24. » Ante, § 39 and note. And see De Marentille v. Oliver, 1 Pen- '" Ante, § 45. ning. 379 ; Kirland v. The State, 43 " Kicker v. Freeman, 50 N. H. Ind. 146. 42U. * 2 Bishop Crim. Law, § 72 a ; Com- " Ante, § 22, 32, 37. monwealth v. Stratton, 114 Mass. 303. 76 § 196 WRONGS WITH PARTICULAR NAMES. [BOOK III. sonable apprehension of danger ; but there need not be danger in fact. An illustration of this, given in all the books, is where one puts his hand on his sword and says to another, " If it were not assize time I would not take such language from you ; " the words negativing any intention to commit a battery, hence there is no assault.^ And it is the same in other cases where either the accompanying words or the cir- cumstances indicate the absence of an intention to proceed to a battery .2 But if one presents to another a firearm which, unknown to the other, cannot go off, because not loaded or not cocked, he assaults him ; since he creates the apprehension of danger.^ If there is a mere threat, the danger is too re- mote, so an assault is not committed.* § 195. •Wrongful. — The force must be of a sort deemed by the law wrongful or unlawful.* It need not proceed from an intent to do the particular injury.® For example, a mere friendly touching of one, to call his attention to something, is not an assault or a battery ; '' nor is a harm accidentally in- flicted in mutual and lawful play.* Nor is it a battery where, in the absence of carelessness, a rider's horse takes fright and runs another person down.^ But — § 196. Consent — Plaintiff in Wrong. — The consent of the parties to a prize-fight or to any other breach of the public peacfeiSjOn principle and on authority, no defences to an iur dictment ; the public being plaintiff, and both parties being as to it in the wrong. And of this sort are various assaults and batteries, but not all.^* The slight touch, we have j«st 1 Tuberville v. Savage, 1 Mod. 3. The SUte v. Mooney, Phillips, N. C. Similar cases are Blake v. Barhard, 9 434. Oar. & P. 626 ; The State v. Crow, 1 * Alderson v. Waistell, 1 Car. & Kj Ire. 375. 368. 2 Woodruff V. Woodruff, 22 Ga. 237 ; « Weaver v. Ward, Hob. 134 ; Welch Commonwealth v. Eyre, 1 S. & R. 347 ; v. Durand, 36 Conn. 182 ; Underwood The State v. Blackwell, 9 Ala. 79 ; v. Hewson, 1 Stra. 596 ; James v. Camp- Lawson v. The State, 30 Ala. 14. bell, 5 Car. & P. 372. » Osbom V. Veitoh, 1 F^t. & F, 317 ; ' Cowaid v. Baddeley, 4 H. & N. The-State v. Church, 63 N. C. 15 ; The 478. 5 Jur. N. s. 414. State V. Shepard, 10 Iowa, 126 ; United ' Fitzgerald v. Cavin, 110 Mass. 153. States V. Kierman, 3 Cranch C. C. ' Gibbons v. Pepper, 4 Mod. 405. 435. w 1 Bishop Crim. Law, § 257-^268 ; 2 ♦ Smith II. The State, 39 Missis. 521; lb. § 35, 36 ; The State v. Beck, 1 Hill, 76 CHAP. Xin.] ASSAULT AND BATTERY. § 196 seen,^ is not of this sort ; and rape, one of the most aggravated batteries, is, if the woman consents, neither rape nor even as- sault.^ Now, equally on principle and on authori^jjin execu- tory contract between two for one to commit on the other an assault of the sort indictable though consented to, would be void as being unlawful.^ But the execution of any unlawful contract places it past annulment, and leaves no right of action in either party against the other.* So that, though a mutual beating by consenting parties is a wrong against the public, because a breach of the peace, it is not such as between themselves ; since neither can complain of that to which he consented.* Or, looking upon the wrong as a mere civil one, in no degree as a criminal, still it was mutual ; conse- quently, on another principle already explained, neither party to it could maintain an action against the other.^ Such is the distinct and inevitable deduction of the reasoning of the law ; applicable, however, in all its consequences, only where the beating was not in excess of the consent.^ But we have American cases in which the judges have overlooked the dis- tinction between the civil and criminal remedy,' and so have held that one may maintain his civil suit for a battery to which he consented and in which he participated.* Decisions like these, proceeding on a misapprehension, and overlooking S. C. 363 ; Commonwealth o. CoUberg, case holding otherwise, though Boulter 119 Mass. 350 ; Reg. d. Lewis, 1 Car. v. Clark, infra, was cited and com- & K. 419 ; Champer v. The State, 14 mented upon. In Christopherson v. Ohio State, 437. Bare, 11 Q. B. 473, 477, it is observed ^ Ante, § 195. that " an assault must be an act done * 1 Bishop Grim. Law, § 259, 261, against the will of the party assaulted, 733. and therefore it cannot be said that a » Bishop Con. § 470 et seq. ; Mat- party has been assaulted by his owb thew V. Ollerton, Comb. 218. permission." * Bishop Con. § 509 and note, 545, ' Post, § 200. 627. ' See, for example, the opinion ol 6 Ante, § 49-53. the court in the criminal case of Com- * Ante, § 54-65 ; 1 Bishop Crim. monwealth r. CoUberg, 119 Mass. 350. Law, § 267 ; 2 lb. § 72 i ; 2 Bishop » AdamA. Waggoner, 33 Ind. 531 ; Mar. & Div. § 75. Substantially so ad- Stout ». Wren, 1 Hawks, 420 ; Bell v. judged in Ireland, both in the Queen's Hansley, 3 Jones, N. C. 131 ; Logan v. Bench Division and on appeal, in Hegar- Austin, 1 Stew. 476. As to Boulter v, ty V. Shine, 14 Cox C. C. 124, 145. Clark, Bui. N. P. 16, see a preceding And there was deemed to be no English note. 7T § 198 WRONGS WITH PAKTICULAB NAMES. [BOOK III. established law not brought to the notice of the judges, should not be followed in future cases.^ Further as to which, — § 197. Civil and Criminal distinguished — (Poreible Entry — Trespass). — The adjudications abundantly recognize the dis- tinction between the civil and criminal consequences of a transaction ; so that, for example, one may be liable to an indictment when he can justify himself in a civil suit. Thus, a forcible entry on one's own land, to the possession of which he is entitled, is an indictable breach of the peace.* But the person ousted in violation of the criminal law cannot main- tain a civil suit against him as for trespass.' If the owner goes further, and needlessly beats the unlawful occupant, he is liable civilly as well as criminally for the battery ; because a man's being found on my premises does not justify me in inflicting on him this sort of private punishment.^ II. The Defences. § 198. Elsewhere. — The right of parents, teachers, officers of the law, and other persons in special relations, to commit 1 See post, § 200 and note. maintain an action, in the natnre of * 2 Bishop Grim. Law, § 490, 600. trespass to his pei-son, for a subsequent ' Ives V. Ives, IS Johns. 23.") ; Hyatt expulsion with no more force than neces- t). Wood, 4 Johns. 150; Header v. sary to accomplish the purpose ; because Stone, 7 Met. 147 ; Taunton v. Costar, the landlord, having obtained possession 7 T. R. 431 1 Harvey v. Brydges, 14 M. by an act which, though subject to be & W. 437 ; Beeoher v. Parmele, 9 Vt. punished by the public as a breach of 852 ; Higgins v. The State, 7 Ind. 549 ; the peace, is not one of which the ten- Low V. Elwell, 121 Mass. 309, 812, 818, ant has any right to complain, has, as Gray, C. J. observing : " If the land- against the tenant, the right of posses- lord forcibly enters and expels him, the sion of the premises ; and the landlord, landlord may be indicted for the foroiMe not being liable to the tenant in an ac- entry. But he is not liable to an action Won of tort for the principal act of entry of tort for damages, either for his entry upon the land, cannot be liable to an upon the premises, or for an assault in action for the incidental act of expul- expelling the tenant, provided he uses sion, which the landlord, merely be- no more foree than is necessary. The cause of the tenant's own unlawful tenant cannot maintain an action in the resistance, has been obliged to resort to nature of trespass quare claumm /regit, in order to make liis entfy effectual." because the title and the lawful right to * Sampson v. Henry, 11 Pick. 879 the possession are in the landlord, and 887 | Sampson v. Henry, 13 Pick. 86. the tenant, as against him, has no right But see Blades v. Higgs, 10 C. B. n. 8. of occupation whatever. He cannot 718, 7 Jur. h. s. 1289 78 CHAP. Xni.J ASSAULT AND BATTERY. § 200 assault and battery on others in their care, by way of correc- tion or restraint, will be considered under their respective titles. So also will be the authority to employ force for the protection of real and personal property and in self-defence. But, within the limits of this latter topic, something may here be said of — § 199. Assault to repel Assault — (Circumstances of As- sault). — Abuse by mere words,^ however violent or insulting, is not an assault ; and one has no right to assault another in repelling such abuse.* But he may show it in mitigation of damages,* that is, at Jeast by some opinions, of punitory, yet not of actual damages.* An assault or battery may be re- pelled by force, not exceeding in amount and kind what under the particular circumstances is reasonable.^ All the circum- stances should be taken into the account ; ^ for example, what the assaulted person knew of the assailant's character for turbulence and quarrelsomeness,^ whether the weapon was the fist * or loaded arms,' and the extent and nature of the dan- ger. Now, — § 200. Excess in Repelling. — He who meets his assailant with excessive violence is answerable to him in damages for the excess.^* And, in such a case, the New York court would not permit the party who had thus exceeded the proper 1 Bac. Abr. Assault and Battery, A. ; « Root v. Sturdivant, 70 Iowa, 55 ; Smith t). The State, 39 Missis. 521. Gronan v. Eukkuck, 59 Iowa, 18; ' Bichardson €;. Zuntz, 26 La. An. DaUey v. Houston, 58 Mo. 361 ; Currier 313 ; Thompson p. Mumma, 21 Iowa, v. Swan, 63 Maine, 323 ; Ward v. Black- 65 ; Cushman v. Byan, 1 Story, 91. wood, 41 Ark. 295; Backstacki). Banks, * lb. ; Martin v. Minor, 50 Missis. 7 Ben. 355 ; Williams ». Townsend, 42 ; Richardson v. Hine, 42 Conn. 206 ; 15 Kan. 563 ; Blake v. Burke, 42 Md. Ireland v. Elliott, 5 Iowa, 478 ; Murray 45. V. Boyne, 42 Mo. 472. ' Knight ». Smythe, 57 Vt. 629 ; * Corcoran v. Harran, 55 Wis. 120 ; Harrison v. Harrison, 43 Vt. 417. Scott V. Fleming, 16 Bradw. 639. » Floyd v. The State, 36 Ga. 91. ' Ogden V. Claycomb, 52 111. 365 ; ' Morris v. Piatt, supra. Murray v. Boyne, 42 Mo. 472 ; Gal- " Harrison v. Harrison, 43 "Vt. 417 j lagher v. The State, 3 Minn. 270 ; Mor- Ayres v. Birtch, 35 Mich. 501 ; Curtis ris 17. Piatt, 32 Conn. 75 ; Scribner v. v. Carson, 2 N. H. 539 ; Brown v. Gor- Beach, 4 Oenio, 448 ; Cnstner o. Sliker, don, 1 Gray, 182 ; Dole v. Erskine, 35 4 Vroom, 507 ; Reece v. Taylor, 4 Nev. N. H. 503 ; Philbrick v. Foster, 4 Ind. & M. 469, 470 ; People v. Gulick, Hill 442 ; Hazel v. Clark, 3 Harring. DeL & D. 229 ; Cockcroft v. Smith, 2 Salk. 22 ; Trogden v. Henn, 85 111. 237. «12 ; Gizler v. Witzel, 82 111. 322. 79 § 200 WRONGS WITH PARTICULAR NAMES. [BOOK III. bounds in defence to recover anything of the original assail- ant.^ But the New Hampshire tribunal dissented from this, and held that each party might sue the other, the one for the original assault, and the other for the excess of repelling force.* It is plain in this sort of case, and on both sides of the question it is admitted, that each party committed on the other an assault and battery. The New Hampshire court regards the facts the same as they would stand if the person assailed had simply repelled the assault by lawful force ; then, in a separate transaction, say the next day, had put forth the unlawful. In this view, there can be no question of the cor- rectness of its conclusion. But it is not the habit of the law to look at things so. There is in fact but one transaction, and therein both parties are in the wrong. Why, then, is not the doctrine of a previous chapter applicable to the case,^ resulting in the conclusion that the court will help neither? But this argument extends much further than simply to sustain the New York doctrine against the New Hampshire one ; it would overthrow what is established by a long line of authorities, namely, the right of the original trespasser to recover com- pensation for the excess in defence. The course of our law is ordinarily to leave an anomaly of this sort for legislation to correct or not as may be deemed best, while the courts travel on in the line of precedent.^ 1 Elliott 1). Brown, 2 Wend. 497. monly are, not how they ought to he. ' Dole V. Erskine, 36 N. H. 503. If one man strikes another, and the ' Ante, § 54-65. other gives back a pretty heavy blow, I * Compare with ante, § 196. The do not personally think it to he the reader will see, without special explana- duty of a court and jury to sit upon the tion, that the reasons for overruling the qaaiTel and determine which of the two erroneous doctrine there are stronger wrong-docra did, as between themselves, than the reasons here, and in a measure cook the thing too brown. I should say different. One obvious difference is, that both ought to be turned out of that in the other case there are only court. And I should not deem the isolated decisions, founded on no an- precedents in assault and battery cases cient usage, and proceeding from mis- to preclude the tribunal from following apprehension ; while, if 1 mistake not, thus the common course of the courts in the decisions on the present question this sort of case. On the other hand, if are alike ancient, modern, and unifonn. a person who had been lightly struck In intimating that they will not proha- should take occasion, not as a mere te- bly he judicially overruled, I simply turn for the battery, but of malice, to express my ideas of how things com- inflict an inordinate beating upon the 80 CHAP. XIII.] ASSAULT AND BATTEBT. § 204 in. The Rights of Third Persons. § 201. In General. — One wha has suffered from another's assault and battery on a third person may, in the absence of any special fact creating an exemptiony recover of the other his damages.^ Thus, — § 202. Accidental Hart. — If a missile unlawfully meant for a particular person takes effect by accident on another, the lat- ter may have his suit against the sender, the same as though he were the one intended to be hit.^ But if the sender of the missile was justified therein, — as, if he discharged a pistol in lawful self-defence and without negligence,* — another casually injured thereby has no remedy ; the law regarding the result as an inevitable accident.* Again, — § S03. Owing Service. — When an unlawful battery disables a person who by contract or otherwise owes service to an- other, not only is the wrong-doer liable to the person directly injured, but the one to whom the service is due may also have his action for the loss.* § 204. The Doctrine of this Chapter restated. The law takes cognizance only of the grosser personal wrongs which men commit on one another. A harassment by mere words of abuse may be a marked breach of moral duty, but the law will not redress it in an action. When the lifting of a weapon or the hand, or the setting in motion of any physical thing, creates an immediate apparent danger, however slight, to the person of another, or when it goes wrong-doer, or to maim him, I should Plummer v. The State, 4 Texas Ap. look upon this conduct as a thing dis- 310. connected from any real or properly as- * Ante, § 176-184 ; Paxton t>. Boyer, sumed right of self-defence, and there- 67 111. 132, fore as entitling the injured party to ' Rosiere ». Sawkins, Holt, 460 ; Savill V. Kirby, 10 Mod. 385, 386 ; I And see ante, § 181. Cincinnati, &c. Rid. v. Chester, 57 ' Peterson o. Haffher, 59 Ind. 130 ; Ind. 297 ; Hunt v. Wotton, T. Raym. Hurphy v. Wilson, 44 Mo. 313. 259, 260. » Morris V. Piatt, 32 Conn. 75 ; 6 81 § 204 WRONGS WITH PARTICCLAE NAMES. [BOOK III. further and hits the person, if there is no valid excuse for it, an assault in the one case or a battery in the other is com- mitted. And for an assault or for a battery redress may be had in the courts. If the circumstances justify the act, the law does not deem that there has been an assault or a battery. In this case, neither a party nor a third person has any rem- edy ; in the other, even a third person may recover of the wrong-doer compensation for what he has suffered. For he who has received a damage from another's altogether rightful act, must bear it as one of the consequences of living in soci- ety ; but the sufferer from a wrong has his remedy, whether the wrong-doer meant a harm to him or not. 82 CHAP. XIV.] FALSE IMPRISONMENT. § 208 CHAPTER XIV. FALSE IMPRISONMENT. § 205. Like Assault and Battery. — False imprisonment is as well a criminal wrong as a civil, the limits of the indicta- ble and actionable being at places not absolutely identical.^ Tt commonly, but not necessarily or always, begins with as- sault and battery, whereof it is a sort of continuance. § 206. Defined. — It is any unlawful physical restraint by one of another's liberty, whether in a prison or elsewhere, in a place stationary or moving, under claim of authority or not, by bolts and bars, by threats overpowering the will, or by any other means.2 § 207. One Direction. — So to obstruct one's way as to pre- vent his going in the particular direction he desires, while he is free to pass in any other, was in England adjudged by the majority of a divided court not to constitute false impris- onment, though it seems still to have been regarded as an actionable wrong.* Assuming this decision to be correct, as probably we may, it relates only to the name of the wrong, and the form of the declaration. § 208. niustrations — of false imprisonment are the wrong- ful locking of the door of a room upon one known to be in it,* fraudulently getting possession of an infant and detaining it from the person entitled to its custody,^ and compelling one 1 Ante, § 187. v. The State, 7 Humph. 43 ; HoUey v. 2 2 Bishop Crim. Law, § 748 ; Floyd Mix, 3 Wend. 350. V. The State, 7 Eng. 43 ; Pease v. Burt, » Bird v. Jones, 7 Q. B. 742. 3 Day, 485 ; HoLert's Case, Cro. Car. * Woodward v. Washburn, 3 Denio, 209 ; Mclfay v. Stratton, 9 Bradw. 369. 215 ; Woodward v. Washburn, 3 Denio, ' Eobalina v. Armstrong, 15 Barb. 369 ; Johnson v. Tompkins, Bald. 671 ; 247. Pike V. Hanson, 9 N. H. 491 ; Smith 83 § 210 WRONGS WlTtt BAETICULAB : NAMES. [BOOE IH. to remain at a place by firing upon him and threatening him.^ But — § 209. ■Wrongful Arrest — is the most familiar illustration. K an officer or private person, assuming to act by command or permission of the law, detains one without its authoriza- tion in fact, whether believing himself to have the authority or not, he must answer to the arrested person for a false im- prisonment.^ Instances are : arresting one in a civil action on Sunday ,3 or on a warrant void upon its face.* And, in such a case, — Procurer — One who procured the arrest, whether present or absent when it was made, is in like manner answerable.* § 210. Subsequently Abusing Process — Hot Sischarging. — An abuse of a lawful arrest is also false imprisonment ; as, cruelly treating the arrested person, insulting him, depriving him of proper food, imposing on him undue hardships, extort- ing something from him, or doing to him any other like wrong not within the process.* So if an arrested person becomes entitled to his discharge, — as, by tendering bail,^ or by the authorized time for detention having elapsed,* or other- wise,® — he can have this action against those from whom 1 McNay v. Stratton, 9 Bradw. 215. & P. 262 ; Hopkins *. Crowe; 7 Car. & « Green v. ■Eumsey, 2 Wend. 611; P. 373; Bright v. Patton, 5 Mackey, 534. Tubbs V. Tukey, 3 Cash. 438 ; Phillips « Ugyje „. Russell, 30 Baib. 300 ; V. Trull, 11 Johns. 486 ; Scott v. Ely, Wood v. Graves, 144 Mass. 365. Some 4 Wend. 555 ; Anonymous, 7 Mod. 52 ; of the leading cases cited by the learned Toiihey v. King, 9 Lea, 422 ; Vaughn judge in the last case are Esty v. Wil- V. Congdon, 56 Vt 111 ; Miller v. Foley, mot, 15 Gray, 168 ; Malcom v. Spoor, 28 Barb. 630. 12 Met. 279 ; Grainger v. Hill, 4 Bing. » Wilson V. Tucker, 1 Salk. 78 ; s.c. If. 0. 212; Page v. Cushing,;38 Maine, nom. Wilson v. Guttery, 5 Mod. 95. 523 ; HoUey v. Mix, 3 Wend. 350 ; * Thorpe v. Wray, 68 Ga. 359 ; Gel- Baldwin v. Weed, 17 Wend. 224. zenleuchter i). Niemeyer, 64 Wis. 316. ' Smith v. Hall, 2 Mod. 31 ; Salmon ' Post, § 211 ; Clifton v. Grayson, 2 v. Percivall, Cro. Car. 196 ; Creswell v. Stew. 412 ; Floyd v. The State, 7 Eng. Hoghton, 6 T. E. 355 ; Gibbs v. Rand- 43 ; Stoddard i>. Bird, Kirby, 65 ; Bur- lett, 58 N. H. 407 ; Manning v. Mitch- lingham v. Wylee, 2 Root, 152 ; Stoyel ell, 73 Ga. 660. V. Lawrence, 3 Day, 1 ; Vredenburgh 8 Lynch v. Metropolitan Elev. Rv. V. Hendricks, 17 Barb. 179 ; Curry v. 90 N. Y. 77 ; Anderson v. Beck, 64 Pringle, 11 Johns. 444 ; Winslow v. Missis. 113. Hathaway, 1 Pick. 211 ; Emery v. Hap- » Tracy v. Williams, 4 Conn. 107 ; good, 7 Gray, 55 ; Cody v. Adams, 7 Sthreshley v. Fisher, Hardin, 267 ; Gray, 59 ; Wheeler v. Whiting, 9 Car. Hayes v. MitellBUj.69 Ala. 452. 84 CHAP. XIV.] FALSE IMPBISONMENT. § 211 the wrong proceeded. But, under the common-law forms of action, it will not always be trespass, which is the form in technical false imprisonment, it will sometimes be case.^ Further as to the arrest, — § 211. Process Regular. — If the process on which an oflBcer makes an arrest is on its face regular, and from a court or magistrate baving the jurisdiction, he will be justified, what- ever be the liabilities of other persons, and though prior steps were erroneous.^ He will even be protected though the one arrested is privileged, — as, for example, being a going or re. turning witness,* — and the officer, whose dutj it is to follow his precept, is aware of the privilege.* So also — Frocarer. — While, in general,* the mere procurer of a wrongful arrest made by another is liable, one is not so who simply statos to the proper officers the facts, whether he also swears to them or not, and they act upon their independent judgment ; ^ as, if a magistrate having jurisdiction passes upon facts thus communicated, and thereupon issues his warrant.^ If, in the latter circumstanceSj there is any liability, the com- mon-law action will be case, which is the form for malicious prosecution, and not trespass. And tliereupon the rule in malicious prosecution will apply, that there must be both malice and want of probable cause.^ But, — 1 The preceding cases ; also Crowell Lock v. Ashton, 12 Q. B. 871 ; Hop- V. Gleason, 1 Fairf. 325 ; Stanton v. kins v. Crowe, 7 Car. & P. 373. Sepnonr, 5 McLean, 267 ; Holley w. ' Post, § 230 ; West v. Smallwood, Mix, 3 Wend. 350; Wheaton v. Whitte- 3 M. & W. 418 ; Beaty v. Perkins, 6 more, 49 Mich. 348 ; Herzog v. Graham, Wend. 382 ; Coapal v. Ward, 106 Mass. 9 Lea, 152. 289 ; Hallocki7. Dominy, 69 N. Y. 238; » 1 Bishop Crim. Proced. §187 ; Da- Waldheim v. Sicbel, 1 Hilton, 45; vis V. Bush, 4 Blaekf. 330 ; Stewart v. Dusy v. Helm, 59 Gal. 188 ; Brown v. Hawley, 21 Wend. 5^2. Chapman, 6 C. B. 365 ; Fischer v. ' Smith V. Jones, 76 Maine, 138 ; Langbein, 13 Abb. N. Cas. 10 ; Lang- Cameron V. Lightfoot, 2 W. Bl. 1190 : ford v. Boston, &c. Kid. 144 Mass. Tarlton v. Fisher, 2 Dong. 671. 431. * Magnay r. Bart, 5 Q. B. 381. And » Murphy v. Martin, 68 Wis. 276 ; see Yearsley v. Heane, 14 M. & W. Krebs c. Thomas, 12 Bradw. 266 ; John- 322. son V. Ebberts, 6 Sawyer, 538 ; Ijegallee » Ante, § 209 ; Gteen v. Elgie, 5 v. Blaisdeil, 134 Mass. 473 ; McCarthy Q. B. 99. V. De Armit, 3 Out. Pa. 63 ; Hogg v. • Mnrphy v. Walters, 34 Mich. 180 ; Pinckney, 16 S. C. 387 ; Se^er v. Benham v. Vernon, 5 Mackey, 18 ; Pfeifer, 38 Ind. 13 ; Colter v. Lower, 85 § 217 WRONGS WITH PARTICULAR NAMES. [BOOK III. § 212. MaUoe. — In false imprisonment proper, as distin- guished from malicious prosecution, malice is not required.^ For example, — § 213. 'Wrong Person. — Where the officer, acting however honestly, arrests the wrong person, not being misled thereto by the person himself, it is a case of false imprisonment." And it is not otherwise though the one arrested was really the one meant, the name being mistaken in the warrant.* § 214. Force or not in Arresting. — To constitute an arrest, equally in these false imprisonment cases and in others, the officer need not touch the person if he submits without, other- wise he must, or must do something else to gain custody of him, such as the locking of a door.* And the action for false imprisonment will not lie against an officer who has proceeded less far.^ § 215. The Parties. — Explanations will appear in other connections showing more of the liability of the differing par- ties to this wrong." It remains only to add here that, — § 216. Third Persons Suffering. — In false imprisonment, the same as in assault and battery,^ a third person who has suffered from the wrong may have his redress against the wrong-doer ; as, for example, where a servant has been falsely imprisoned, whereby the master has been deprived of his services.' § 217. The Doctrine of this Chapter restated. Personal liberty is a natural right. No one can take it from another, except by pursuing the steps which the law has laid down, without being responsible to him in damages. 35 Ind. 285 ; Gourgues v. Howard, 27 v. Keown, 29 Wis. 586 ; Shadgett v. La. An. 339. Clipson, 8 East, 328 ; Gurnsey v. Lorell, 1 Akin V. Newell, 32 Ark. 605 ; 9 Wend. 319. Colter V. Lower, 35 Ind. 285. * Ante, § 208 ; 1 Bishop Crim. Pro- » Price ». Harwood, 3 Camp. 108, ced. § 156, 157. and the reporter's note. The mistake ' Hill v. Taylor, 50 Mich. 549. may be shown in mitigation of damages. 8 Post, § 517 et seq. Foimwalt ». Hylton, 66 Texas, 288. ' Ante, § 201-203. See Comer v. Knowles, 17 Kan. 436. 8 Woodward v. Washhnm, 3 Denio, » Scott V. Ely, 4 Wend. 555 ; Scheer 369. 86 CHAP. XIV.] FALSE IMPRISONMENT. § 217 Theoretically, a man .cannot lose his liberty except where he forfeits it by a violation of law. But practically he may ; as, where it is taken from him by the law's procedure to as- certain whether or not he is guilty, or where an erroneous judgment is pronounced against him, or where a jury has con- victed him through mistake, or where otherwise it has become necessary to imprison him as a step in the administration of justice. And, whether a man has really done wrong or not, another may imprison him when the course of the law per- mits ; but, when it does not, he who imprisons one however guilty in fact commits a false imprisonment. A familiar illustration of the lawful imprisonment of an innocent person is where a witness cannot give bail for his appearance to tes- tify in a criminal cause, and he is put in jail to secure his presence. 87 § 220 WRONGS WITH PARTICOLAB iNAMES. £bOOK III. CHAPTER XV. MALICIOUS PROSECUTION. § 218, 219. IhtrodactioD. 220-230. General Doctrine. 231-237. The Malice. 238-242. Want of Probable Cause. 243-245. In what Cases. 246-249. After what Steps. 250. Doctrine of Chapter restated. § 218. Malicious Arrest. — Where one maliciously procures another to be arrested, not in the course of a regular suit or prosecution, but by some summary process, it is often and properly termed a malicious arrest. Still it may be regarded equally as a malicious prosecution ; therefore, for convenience, and without violating the proprieties of the language, it will be included in this chapter.^ §219. How Chapter divided. — We shall consider, I. The General Doctrine ; II. The Malice ; III. The Want of Prob- able Cause ; IV. In what Cases ; V. After what Steps. I. The General Doctrine. § 220. Distinguished from False Imprisonment. — The wrong of malicious prosecution, unlike false imprisonment, is not limited to violations of personal liberty, but extends to dis- turbances of property rights as well. It consists of an unjus- tifiable employment of the processes of the law, while false imprisonment is an act done in violation of those processes. Under the common-law practice, the action for false imprison- ment is trespass, that for malicious prosecution is case.^ 1 And see Ahem v. Collins, 89 Mo. 2 Ante, § 210, 211 ; Colter ». Lower, 1*5. 35 Ind. 285 ; Belk v. Broadbent, 3 T. K. 88 CHAP. XV.] MALICIOUS PROSECUTION. § 223 § 221. Defined. — Malicious prosecution is the putting in motion of any process of the law, and the carrying of it forward until it terminates in favor of the one prosecuted, maliciously and without reasonable or probable cause, to his injury in respect either of personal security or of property.^ Also, — § 222. Defamation. — The element of defamation of char- acter — slander or libel — is sometimes looked upon as jus- tifying an action for malicious prosecution. It is clearly laid down that slander may be propagated by a false suit. And it has been intimated that in such circumstances an aggrieved person may elect the one of the two remedies he prefers.^ Not a great proportion of the cases practically assume this aspect, but the doctrine is just in principle, and it is occasion- ally met with in the books. § 223. The Inevitable. — The existence of courts and the carrying on of their processes are a necessity for imperfect man. And it cannot be otlierwise than that defendants will, sometimes justly and sometimes unjustly, win a part of the litigated causes. So that loss by judicial proceedings, when properly brought and conducted, belongs to the common acci- dents of life, explained in a preceding chapter.* In such a 183, 185 ; Pollard v. Evans, 2 Shaw, erty or person, there is that conjunction 50 ; Elsee v. Smith, 1 D. & R. 97 ; of injury and loss which is the founda- Stewart v. Thompson, 1 Smith, Pa. 158 ; tion of an action on the case." Churchill Sleight V. Ogle, 4 E. D. Smith, 445. v. Siggers, 3 Ellis & B. 929, 937. Re- 1 One looks in vain into the books peated, post, § 243. It should be borne for the anticipated definitions of this in mind that a definition is simply the wrong. Bouvier, fairly well, defines it epitomized law of' its subject, and that to be "a wanton prosecution made by the true and only test of its accuracy is a prosecutor in a ciiminal proceeding, in a comparison of it with the extended or a plaintiff in a civil suit, without law as adjudged, probable cause, by a regular process and ' Jamigan v. Fleming, 43 Missis, proceeding, which the facts did not war- 710 ; Byne v. Moore, 6 Taunt. 187, rant, as appears by the result." Law 191 ; Miller v. Brown, 3 Misso. 127 ; Diet, tit; Malicious Prosecution. And Bodwell v. Osgood, 3 Pick. 379, 383 ; see Abrath v. North Eastern Ry. 11 Savil v. Roberts, 1 Salk. 13, 14 ; Quartz Q. B. D. 440, 448, 455, affirmed, 11 Hill Gold Mining Co. ■». Eyre, 11 Q. B. D. Ap. Gas. 247. Lord Campbell says : 674, 683, 684. And see Western News "To put into force the process of the Co. v. Wilmarth, 33 Kan. 510 ; Hart law maliciously and without any reason- v. Baxter, 47 Mich. 198 ; post, § 227. able orprobable cause is wrongful ; and, ' Ante, § 176-184. if thereby another is prejudiced in prop- 89 § 227 WBONGS WITH PARTICULAR NAMES. [BOOK III. case, the losing party can have no redress.' But it is not neces- sary that men be permitted to abuse judicial process. Hence, — § 22J:. Remedy for Abuse of Process. — The law has pro- vided the action of malicious prosecution as a remedy for private injuries from abuse of the processes of the courts. Necessarily this action must, like all others, have its defined limits and its rules ; and it cannot be otherwise than that both should be in some degree technical. The result of the decisions is, that this action will lie for the abuse whenever the following things concur, — § 225. Malice and 'Want of Probable Cause. — There must be both malice and the want of probable cause combining.* And these must be affirmatively shown by the plaintiff.* § 226. Termination of Proceeding. — The proceeding in which the abuse occurred must have terminated, and in favor of the party complaining in the malicious prosecution suit.* Lastly, — § 227. Damage. — The person complaining of the abuse must have sustained therefrom some sort of legal damage.* If he has been subjected to the payment of a sum of money,* or arrested,^ or defamed,* there is legal damage, and the same I Wasserman v. Louisville, &c. Ry. note ; Palmer v. Richardson, 70 111. 28 Fed. Rep. 802 ; Smith v. Adams, 27 544 ; Davie v. Wisher, 72 111. 262 j Texas, 28 ; Vanduzor v. Linderman, 10 Calef v. Thomas, 81 111. 478 ; Tiogden Johns. 106 ; Lindsay v. Larned, 17 v. Deekard, 45 Ind. 572. Mass. 190 ; Reynolds i>. Kennedy, 1 * Crescent City Live Stock Co. v. "Wils. 232. Butchers Union, 120 U. S. 141 ; Vinal ' Crescent City Live Stock Co. v. v. Core, 18 W. Va. 1 ; Wood v. I/ay- Butchers Union, 120 U. S. 141 ; Pres- cock, 8 Met. Ky.l92; Smith ». Shackle- ton V. Cooper, 1 Dil. 589 ; Burnap v. ford, 1 Nott & McC. 86 ; Pratt v. Page, Albert, Taney, 244 ; Vinal v. Core, 18 18 Wis. 337 ; Steel v. Williams, 18 Ind. W. V^ 1 ; Murray v. Long, 1 Wend. 161 ; Fisher v. Bristow, 1 Doug. 215 j 140 ; Pangtarn v. Bull, 1 Wend. 345 ; Morgan v. Hughes, 2 T. R. 225 ; Walker Morris v. Corson, 7 Cow. 281 ; Hark- v. Martin, 43 111. 508 ; Hewit v. rader ii. Moore, 44 Cal. 144 ; Dietz v. Wooten, 7 Jones, N. C. 182. Langfitt, 13 Smith, Pa. 234 ; Shafer v. « Preston v. Cooper, 1 Dil. 589 j Loucks, 58 Barb. 426 ; Farmer v. Dar- Cotterell v. Jones, 11 C. B. 718, 16 Jur. ling, 4 Bur. 1971 ; Porter v. White, 5 88 j Byne v. Moore, 5 Taunt. 187, 191. Maokey, 180 ; Gonzales u. Cobliner, 68 6 Sandback v. Thomas, 1 Stark. 806. Cal. 151. ' Sitton v. Farr, Rice, 303 j Kay v. " Sutton V. Anderson, 7 Out. Pa. Law, Pet. C. C. 207. 151 ; Emerson v. Cochran, 1 Am. Pa. » Ante,* § 222 j Quartz Hill Gold 619 ; Inoledon v. Berry, 1 Camp. 203, Mining Co. v. Eyre, 11 Q. B. D. 674. 90 CHAP. XV.J HALICIOnS PEOSECUTION. § 230 appears in varions vexations proceedings without special alle- gation and proof.* This doctrine proceeds from the general one explained in a previous chapter,^ that only where an in- jury combines with a wrong can there be a civil action. § 228. Good or bad Malicious Proceeding. — Ordinarily one prosecuted maliciously suffers the same whether the proceed- ing against him is in form good or ill. And the prosecutor does and should incur the same responsibility.^ But if the defect is, for example, such as renders the warrant of arrest whereof he complains void, the case becomes one of false im- prisonment,* not of malicious prosecution.® Within which distinction formal defects in the indictment or complaint, insufficiency of proof, and the like, do not work the nullity which takes away the action for malicious prosecution ; ^ yet, by what seems to be the better opinion, want of jurisdiction in the court or magistrate does,' requiring the action to be trespass for false imprisonment.^ Others hold that even in this case the suit may be for malicious prosecution.^ § 229. Innocence Essential. — One cannot complain that he was maliciously prosecuted for something whereof he was guilty ; because in such a case he has suffered no wrong.'" And if he was acquitted, still the defendant in the malicious prosecution suit may, if he has the evidence, prove his guilt." § 230. Giving Information. — Merely to supply an officer or magistrate with information, believed to be correct, regarding the commission of a supposed crime or the evidence of it, 1 PangbnTD v. Ball, 1 Wend. 345 ; t. Howard, 73 Mo. 25 ; Sweet v. Ne- Holmes v. Johnson, Bosbee, 44 ; Shock gas, 30 Hich. 406 ; Gibbs v. Ames, V. McChesney, 4 Yeates, 507. 119 Mas?. 60, 66 ; Pippet v. Heam, 5 » Ante, § 22-34. B. & Aid. 634 ; SavU v. Eoberts, 1 - Dennis r. Byan, 63 N. Y. 385. Salk. 13, 14 ; ClumibeTS v. Bobinson, 1 * Ante, § 209, 211. Stra. 691. » Kramer v. Lott, 14 Wright, Pa, » Bixby v. Bnmdige, 2 Gray, 129. 495 ; Braveboy v. Cockfield, 2 McMal. « Whiting «. Johnson, 6 Gray, 246. 270. And see Bodwell e. Osgood, 3 * Morris v. Scott, 21 Wend. 281 ; Pick. 379, 383 ; Turpin r. Bemy, 3 Stone r. Stevens, 12 Conn. 219 ; Gos- Blackl 210 ; Moigan ». Hughes, 2 T. B. lin v. Wilcoek, 2 Wils. 302. 225. "• Ante, § 22 et seq. • Strei^t T. Ben, 37 Ind. 550 ; " Newton v. Weaver, IS E. I. 616 ; Shanl V. Brown, 28 Iowa, 37 ; Stocking Parkhuist v. Masteller, 57 Iowa, 474. 91 § 232 WKONGS WITH PABTICULAR JTAMES. [BOOK III. whereon the officer or magistrate acts on his own responsi- bility, cannot be the foundation tof the suit we are consider- ing.^ There is here neither a prosecution nor a moving of others to prosecute.^ And, ^within this principle, one who makes to a magistrate a true statement of facts, whereon the latter issues a warrant to arrest another as for a crimewhich the facts do not in law constitute, does not thereby commit a malicious prosecution.* 11. The Malice. § 231. General. — The Word malice is very much used in legal writings, blit its meaning is variable, depending largely upon the Subject to which it is applied.* Speaking^ in a gen- eral way I, a learhfed English Judge said quite aptly that, " in its legal sense, it means a wrongful act done intentionally without just cause or excuse," and " ill will against a person " is not necessarily an ingredient therein.^ In the law of mali- cious prosecution, it requires the mental condition or purpose which judicial decision has made an indispensable element ^ in the wrong. It is not a mere fiction of law, but it must be malice in fact.'^ Taking these views for our guide, — §232; Defined. ^ The malice in mali&ious prosecution is not necessarily, while it may be, ill will to the individual, but it is any evil or unlawful^ purpose, as distinguished from that of promoting the justice of the law.* For example, — 1 Ante, § 211. ' PuUen v. Glidden, 66 Maine, 202 ; 2 Farnani v. Feeley, 56 N. Y. 451 ; Turner v. O'Brien, 5 U^eb. 542. Teal V. Fiasel, 28 Fed. Rep. 351 ; Hope 8 Carothers v. McIIhenny Co. 63 Tex- V. Evered, 17 Q. B. D. 338, 16 Cox as, 138 ; PuUen v. Glidden, 66 Maine, C. C. 112; Bums o. Erben, 1 Bob. 202 ; Spear «. Hiles, 67 Wis. 350 ; Harp- N. Y. 555 ; Sisk v. Hurst, 1 W. Va. ham v. Whitney, 77 111. 32 ; Krug v. 53. Ward, 77 111. 603 ; Ross r. Langworthy, « Leigh .«. Webb, 8 Esp. 165; Hahn 13Neb. 492. " The malice neeessaiy to ». Schmidt, 64 Cal. 284. be shown in order to maintain this ac- * Compare with the malice in libel tion, ia not necessarily revenge or other and slander, post, § 257, 306. , base and malignant passion.' Whatever * Bromage v. Prosser, 4 B. & C. 247, is done wilfully and purposely, if it be 255, Bayley, J. at the same time wrong and unlawful, ' Ante,-§ 225. - aad that known to the party, is in legal 92 CHAP. XV.J MALICIOUS PROSECUTION. § 236 § 233. To collect Debt. — Oiie to whom another owes some- thing may justly and lawfully bring his civil suit to enforce payment. But it is a perversion of the remedies of the law to attempt the same thing through a criminal proceeding ; there- fore he who does it acts, within our definition, maliciously. In other words, the pursuit of the lawful end by the inten- tionally unlawful means satisfies the law's demand of malice in malicious prosecution.^ Now, — § 284. Evidence — Jury. — Malice being thus a condition of the mind, an intent, and not an outward act, it can be proved only as an inference from other things,^ unless, what is not ordinarily to be expected, the party himself being a witness ^ testifies to it. Therefore, also, the fact of its existence is never a question of law for the court, but it is always to be found by the jury.* Of this, the sort of case stated in the last section is one illustration. Other illustrations are, — § 235. 'Want of Probable Cause. — If the jury are satisfied that the prosecution was without probable cause, they may, and almost as a matter of course they will, infer malice as the motive which impelled thereto. But they are not legally obliged to draw this inference, and circumstances are quite supposable wherein the inference would be unjust.^ Again, — § 236. Advice of Counsel. — If one before commencing the prosecution laid the case fairly, fully, and honestly before counsel presumably competent, and he was thereupon advised contemplation maliciouSi That which ♦Stewart v. Sonneborn, 98 U. 9. is done contrary to one's own conviction 187, 193. of duty, or with a wilful disregard of ^ HoUiday v. Sterling, 62 Mo. 321 ; the rights of others, whether it he to Closson v. Staples, 42 Vt. 209 ; Strick- conipass some unlawful end, or some ler v. Greer, 95 Ind. 598 ; Mitchell B. lawful end by unlawful means, or to do Jenkins, 5 B. & Ad. 588 ; Murphy v. a. wrong and unlawful act knowing it Hobbs, 7 Colo. 541 ; Block v. Meyers, to be such, constitutes legal malice." ' 33 La. An. 776 ; Kaufman v. Wicks, Shaw, C. J. in Wills v. Noyes, 12 Pick. 62 Texas, 234 ; Wanser ■•>. Wyekoff, 9 824, 328. Hun, 178 ; Bauer v. Clay, 8 Kan. 580 ; 1 Schmidt v. Weidman, 13 Smith, Heap v. Parrish, 104 Ind. 36 ; Roy v. Pa. 173.; Boss v, Langworthy, 13 Neb. Goings, 112 111. 656 ; Thompson v. 492; Krugi;. Ward, 77111. 603. Force, 65 111. 370 j Bnrnap v. Albert, * 1 Bishop Crim. Proced. § 1101. Taney, 244 ; Mowry v. Whipple, 8 K. I. 8 Turner v. Brien, 5 Neb. 642. 360. 93 § 238 WRONGS WITH PAETICULAR NAMES. [BOOK III. to proceed, the presumption of fact will be almost conclusive that there was no malice.^ But he must continue this upright course, and the advice will not protect him against facts afterward coming to his knowledge negativing the guilt of the one prosecuted.^ Nor will it protect him if not reason- ably diligent in ascertaining the facts,^ or if he withheld important facts,* or otherwise stated them incorrectly,^ or especially if he wilfully misrepresented them, when the effect of the evidence may be even highly inculpatory,® The ad- vice of one not learned in the law '^ — as, a pettifogger,^ or one not in good professional standing,' or a non-professional magistrate i" — will be of no avail. And if, acting under ad- vice however sheltering him prima facie, he still lacked good faith, and did not believe the person guilty, he is chargeable with malice." § 237. Other Facts — tending to prove or negative malice have, in considerable numbers, been passed upon by the courts ; but the foregoing sufficiently illustrate the nature of this ele- ment in malicious prosecution, and the present is not a work on the law of evidence. III. The- Want of Proldble Cause. § 238. Geaeral. — We have already seen that there is no malicious px'osecution where there is probable cause for it.^^ Now, — 1 Stanton v. Hart, 27 Mich. 539 ; * Block v. Meyers, 33 La. An. 776 ; Skidmore v. Bricker, 77 111. 164 ; Mur- Decoux v. Lieux, 33 La. An. 392 ; "Hew- phy V. Larson, 77 111. 172 ; Wright ». lett v. Cruchley, 5 Taunt. 277. Hanua, 98 Ind. 217 ; Smith ». Austin, » Wild v. Odell, 56 Cal. 136. 49 Mich. 286 ; Wicker v. Hotchkiss, 62 ' Olmstead v. Partridge, 16 Gray, 111. 107 ; Ravenga i>. Mackintosh, 2 381. B. & C. 693, 697 ; Anderson v. Friend, 8 Stanton v. Hart, 27 Mich. 539. 71 111. 475 ; Collins v. Hayte, 50 111. » Roy v. Goings, 112 111. 656. 337 ; Davie v. Wisher, 72 111. 262 ; i» Straus v. Young, 36 Md. 246. Burris v. North, 64 Mo. 426. >l Eavenga v. Mackintosh, 2 B. & C. " Cole V. Curtis, 16 Minn. 182. 693, 698 ; Krulevitz v. Eastern Eld. ' Ash V. Marlow, 20 Ohio, 119. 143 Mass. 228. See Ramsey ». Ari'ott, • Logan V. Maytag, 57 Iowa, 107 ; 64 Texas, 320 ; Decoux v. Lieux, S3 La. Sharps v. Johnston, 59 Mo. 557 ; Eoy An. 392. r. Goings, 112 111. 656. i» Ante, § 225. 94 CHAP. XV.j MALICIOUS PROSECUTION. 240 § 239. Defined. — Probable cause — or, as the expression oftener is, reasonable and probable cause — is any such com- bination of facts and proofs as may fairly lead the reasonable ^ mind to the belief (and the person relying on it must believe '^) that, in the absence of hitherto unknown ^ qualifying or re- butting evidence, the prosecution or other suit ought to be successful.* § 240. Court or Jury. — Plainly in principle, and equally on the authorities, the question whether or not particular facts constitute probable cause must be dealt with by the judge, and the jury alone can find whether or not they exist. In the words of Lord Denman, C. J. : " The jury are to ascertain 1 Some employ the word "cautions," in this sort of connection, instead of reasonable. The latter is the more com- mon, and, looking at the question broadly, I think it more accurately ex- presses the adjudged law. 2 Knilevitz v. Eastern Rid. 140 Mass. 573, 575 ; Good v. French, 115 Mass. 201, 203 ; Abrath v. Northeafit- ern Ry. 11 Ap. Cas. 247, affirming 11 Q. B. D. 440 ; Haddrick v. Heslop, 12 Q. B. 267, 274 ; Turner ■;. Ambler, 10 Q. B. 252, 260. « Fagnan v. Knox, 66 N. Y. 525, 528 ; James v. Phelps, 11 A. & K 483, 488, 489. 1 Gallaway v. Burr, 32 Mich. 332 ; Spalding v. Lowe, 56 Mich. 366'; Lacy I). Mitchell, 23 Ind. 67 ; Wheeler v. Nesbitt, 24 How. U. S. 544 ; Hays v. Blizzard, 30 Ind. 457 ; Mowry v. Whip- ple, 8 E. I. 360 ; Shaul v. Brown, 28 Iowa, 37 ; Shafer v. Loucks, 58 Barb. 426 ; Casey v. Sevatson, 30 Minn. 516 ; Burton v. St. Paul, &c. Ry. 33 Minn. 189 ; Carl v. Ayers, 53 N. Y. 14, 17 ; Ames V. Snider, 69 111. 376 ; Cooper v. Utterbach, 37 Md. 282 ; Stansbnry v. Fogle, 37 Md. 369 ; Bourne v. Stout, 62 111. 261 ; Cole v. Curtis, 16 Minn. 182 ; Parli v. Reed, 30 Kan. 534. In Ash V. Marlow, 20 Ohio, 119, 129, the court approves the detinition in Mimns V. Dupont, 3 Wash. C. C. 81 ; namely. that probable cause is "a reasonable ground of suspicion, supported by cir- cumstances sufSciently strong in them- selves, to warrant a cautious man in the belief that the person accused is guilty of the oifenco with which he is charged." To the like effect, Davie v. Wisher, 72 111. 262 ; Landa v. Obert, 45 Texas, 639. " Probable cause is such a state of facts in the mind of the prosecutor as would lead >• man of ordinary caution and prudence to believe, or entertain an honest and strong suspicion, that the person arrested is guilty." Shaw, C. J. in Bacon v. Towne, 4 Cnsh. 217, 238, 239. " Anything which will create in the mind of a reasonable man the belief that a felony existed, and that the party charged was in any way concerned in it, is probable cause." O'Neill, C. J. in Braveboy v. Cookfield, 2 McMul. 270, 274. "I should define re.^sonable and probable cause to be an honest belief in the guilt of the accused, based upon a full conviction, founded upon reasonable grounds, of the existence of a state oE circumstances which, assuming them to be true, would reasonably lead any ordi- narily prudent and cautions man, placed in the position of the accuser, to the con- clusion that the person charged wa« probably gnilty of the crime imputed. " Hawkins, .1. in Hicks v. Faulkner, 8 Q. B. D. 167, 171. 95 § 241 WRONGS WITH PARTICULAR NAMES. [BOOK III. certain facts, and the judge ia to decide whether those facts amount to such cause." ^ With less precision, the question of probable cause is sometimes said to be a mixed one of law and fact.2 And practically, where the facts are numerous and the evidence is contradictory or uncertain, all will be submitted together to the jury, who, " under the judge's direction as to what facts will suffice for that purpose, will find affirmatively the non-existence of probable cause ; and they have no right to assume it without proof." ^ Where the facts are undis- puted, the judge is to determine their effect, as constituting probable cause or not.* The following are some — § 241. Illustrative Pacts. — One's mere belief that another is guilty is not probable cause to prosecute him.^ The ap- parently truthful statement of even a young person, who claims to have witnessed the commission of the offence, will suffice if believed ; ^ but if the witness was a discharged con- vict, and there were accompanying evidences of malicej the conclusion will be the other way.'' Where the one knows that the other has committed an act of apparently malicious mischief, yet knows also that it was done under a claim of right, there is not probable cause.^ And a trespass to per- sonal property is not necessarily larceny,' or false swearing in a cause perjury ,1" the knowledge whereof will constitute » Turner e. Ambler, 10 Q. B. 252, « James v. Phelps, 11 A. & E. 483 ; 260 ; Johnstone v. Sutton, 1 T. R. 510, Kidder v. Parkhui'st, 3 Allen, 393 ; Si5 ; Pennsylvama Co. v. Wcddle, 100 Cloon i;. Geriy, 13 Gray, 201 ; Davis v. Ind. 138; Burton «. St. Paul, &c. By. 33 Hardy, 6 B. & C. 225; Blachford v. Minn. 189 ; Eastin v. Stockton Bank, Dod, 2 B. & Ad. 179 ; Stone v. Crocker, 66 Cal. 123 ; Fulton v. Onesti, 66 Cal. 24 Pick. 81, 85 ; Good v. French, 115 575 ; Hinton v. Heather, 14 M. & W. Mass. 201 ; Medcalfe v. Brooklyn, &o. 131, 134. Ins. Co. 45 Md. 198. ^ Johnstone v. Sutton, supra ; John- ^ Farnam v. Feeley, 56 K. Y. 451 ; son V. Miller, 63 Iowa, 629. Graeter v. Williams, 55 lud. 461. ' Hawkins, J. in Hicks v. Faulkner, ^ Dwain v. Descalso, 66 Cal. 415 ; 8 Q. B. D. 167, 170 ; Cole a. Onrtis, 16 Chatfield v. Comerford, 4 Fost. & F. Minn. 182 ; Driggs v. Barton, 44 Vt. 1008. 124 ; Caldwell w. Bennett, 22 S. C. 1 ; ' Chapman v. Dunn, 56 Mich. 31. Weaver v. Townseud, 14 Wend. 192 ; » James v. Phelps, 11 A. & E. 483. Panton v. Williams, 2 Q.B. 169 ; Row- « Turner v. O'Brien, 5 Neb. 542 ; lands V. Samuel, 11 Q. B. 39 ; Abrath Wanser v. Wyokoff, 9 Hun, 178. V. Northeastern By. 11 Ap. Cas. 247, i» Plath v. Braunsdorff, 40 Wis. 107. 11 Q. B. D. 440. CHAP. XV.J MALICIOUS PROSECUTION. §243 probable cause for a criminal prosecution. The illustrations are innumerable.^ § 242. Evidence. — Not all the cases present, like those just stated, admitted or proven facts, which the court will hold to constitute alone probable cause or not. Malice, though an essential part of every case, is not of itself want of probable cause, neither is the jury justified in accepting it as adequate proof thereof.^ After an unreversed conviction, this suit cannot in matter of law be maintained.* A reversal of the conviction on appeal,* a holding for trial by a magistrate,^ a disagreement of the jury,® and other like things ^ will be ac- cepted as evidence of probable cause more or less weighty ac- cording to the circumstances.^ An acquittal or nonsuit does not show that there was no probable cause,' which is a thing quite independent of actual guilt.^" IV. In what Cases. § 243. General. — An instigation of any criminal prosecu- tion,^' the procuring of one's arrest, whether on summary pro- 1 See, for example, Taylor v. Kice, 27 Fed. Rep. 264 ; Dennis v. Ryan, 63 Barb. 145 ; Merkle v. Otteiismeyer, 50 Mo. 49 ; Thelin v. Dorsey, 59 Md. 539 ; Bailey v. Dodge, 28 Kan. 72 ; Barrett V. Spaids, 70 111. 408 ; Spear v. Hiles, 67 Wis. 361 ; Bauer v. Clay, 8 Kan. 580 ; Chapman v. Cawrey, 50 111. 512 ; Butchers Union Slaughter-house, &c. Co. ■». Crescent City Live Stock, &c. Co. 37 La. An. 874 ; Dorendinger v. Tschechtelin, 12 Daly, 34 ; Montross V. Bradsby, 68 111. 185 ; Shemood v. Eeed, 35 Conn. 450. 2 Ames V. Snider, 69 111. 376 ; Leyenberger v. Paul, 12 Bradw. 635 ; Mun-ay v. Long, 1 Wend. 140 ; Pang- burn V. Bull, 1 Wend. 345 ; Casperson v. Sproule, 39 Mo. 39 ; Hall u. Hawkins, 5 Humph. 357 ; Horn v. Boon, 3 Strob. 307 ; Bell V. Pearcy, 5 Ire. 83 ; Sutton V, Johnstone, 1 T. R. 493, 545 ; Besson V. Southard, 6 Selden, 236 ; Wheeler v. Nesbitt, 24 How. V. S. 544, 551 ; Jor- dan «. Alabama Great Southern Kid. 81 Ala. 220. 7 ' Ante, § 229. Compare, and query, Olson V. Neal, 63 Iowa, 214. And see Bitting V. Ten Eyck, 82 Ind. 421. * Whitney v. Peckham, 15 Mass. 243 ; Denneheyo. Woodsum, 100 Mass. 195, 198. See Burt v. Place, 4 Wend. 591. ' Bacon «. Towne, 4 Cush. 217. 8 Johnson v. Miller, 63 Iowa, 629. ' Burhans v. Sanford, 19 Wend. 417; John.ston v. Martin, 3 Murph. 248 ; Ganea v. Southern Pac. Rid. 51 Cal. 140. ' Labar v. Crane, 49 Mich. 561 ; Scott V. Simpson, 1 Sandf. 601 ; Bell v. Pearcy, 11 Ire. 233 ; Stewart ». Sonne- bom, 98 U. S. 187 ; Peck v. Chouteau, 91 Mo. 138 ; Motes v. Bates, 80 Ala. 382. » Bitting V. Ten Eyck, 82 Ind. 421 ; Sinclair v. Eldred, 4 Taunt. 7 ; Adams V. Lisher, 3 Blackf. 445 ; McBean v. Ritchie, 18 111. 114 ; Thorpe v. Balliett, 25 111. 339 ; Burhans v. Sanford, 19 Wend. 417. i» Lytton ». Baird, 95 Ind. 349. ^' Jones 0. Gwynn, 10 Mod. 148 ; 97 § 244 WBONGS WITH PARTICULAR NAMES. [BOOK III. cess or in a plenary suit civil or criminal,' or of his expulsion from premises which he holds as tenant under a landlord,? or the attachment or other seizure of his goods,* or the suing out and enforcement of an injunction,* — each of these, if done maliciously and without probable cause, is good foundation for the action we are considering. As expressed by Lord Campbell, C. J., " to put into force the process of the law maliciously and. without any reasonable or probable cause is wrongful ; and, if thereby another is prejudiced in property or person, there is that conjunction of injury and loss which is the foundation of an action on the case." ^ This is the en- tire principle, recognized alike in England and all of our States. There is some difference in its application, par- ticularly as to a — § 244. Civil Suit followed by Costs. — In a civil suit of a sort involving no defamation,^ no arrest, no attachment of goods, and no other injury outside of the sphere of the costs which the defendant recovers of the plaintiff, the English doc- trine is that the prevailing defendant has been fully indemni- fied by the costs, so that he has suffered nothing, consequently that he cannot maintain this action.'^ For in England " extra costs — that is, costs beyond those awarded by the court to a successful defendant -^ are not recognized by law."^ Some of our American courts take the same view of costs ; ^ and they hold, with the English, that an action for malicious prose- cution cannot be maintained in this sort of case.^' Others of Eeed v. Taylor, 4 Taunt. 616 ; Anony- ' Churchill v. Siggers, supra, at p. mous, 2 Mod. 306, and editor's note; 937. Savil V. Roberts, 1 Salk. 13. « Ante, § 222. 1 Churchill v. Siggers, 3 Ellis & B. ' Cotterell v. Jones, 11 C. B. 713, 16 929 ; De Medina v. Grove, 10 Q. B. 162, Jur. 88. 169 ; Steer v. Scoble, Cro. Jac. 667 ; » Maule, J. in Cotterell v. Jones, su- Casebeer v. Kiee, 18 Neb. 203. pra, Jur. p. 90 ; Sinclair v. Eldred, 4 2 Block V. Bonnet, 28 La. An. 540. Taunt. 7 ; Webber v. Nicholas, Byan & 8 Savage v. Brewer, 16 Pick. 453 ; Moody, N. P. 419, 4 Bing. 16. Eedway v. MoAndrew, Law Kep. 9 Q. » Young B.Courtney, 13 La.An. 193. B. 74 ; Fen «. Driver, 1 keb. 515. » Muldoon u. Rickey, 7 Out. Pa. * Newark Coal Co. v. Upson, 40 110 ; Wetmore v. Mellinger, 64 Iowa, Ohio State, 17 ; Cox v. Taylor, 10 B. 741, confirmed in Smith v. Hintrager, Monr. 17. But see Gorton v. Brown, 67 Iowa, 109. In the foi-mer of these 27 111. 489. two Iowa cases, the court deemed this 98 CHAP. XV.} MALICIOUS PROSECUTION. §244 our courts deem it to be, in the words of Morris, C, speaking for the Indiana court, " too clear for discussion that the costs which the law gives a successful party are no adequate com- pensation for the time, trouble, and expense of defending a malicious and groundless civil action. The party sued must devote some time to the defence of the suit ; he must look up his evidence and employ counsel. This waste of time and necessary expenditure of money, by its results, affects the property of the defendant. For these expenses the costs re- covered in the action are no compensation at all. In some of the States reasonable attorney fees for the successful party are included in the taxable costs. It is not so here. No good and sufficient reason can be given why he who has maliciously doctrine "established hj the great pre- ponderance of authority," — a less weighty aigument than if they had said that it was sustained by the preponder- ance of I^al reason. Some of the au- thorities they cite are Mayer o. Walter, 14 Smith, Pa. 283 ; Kramer v. Stock, 10 Watts, 115 ; The State v. Meyer, 11 "Vroom, 252 ; Eberiy v. Bnpp, 9 Norris, Pa. 259 ; Gorton v. Brown, 27 III. 489 ; Woodmansie v. Logan, 1 Penning. 93 ; Parier v. Trambes, 1 Penning. 156 ; Potts V. Imlay, 1 SouthartI, 330. In Geoigia, what the court deems to be tlie common-law doctrine is followed ; namely, Hiat, where the civil suit re- sulted in costs to the defendant, mali- cious prosecution cannot be maintained unless special damages are shown. Blandfoid, J. has stated the reason thus : "In England, before the statute of 52 Hen. 3, 1277, it was the prac- tice constantly to hold that| where one sued another maliciously and without probable cause, he was liable to such person in damages npon an action on the case, but since the passage of that statute, which gives costs to the defend- ant per falsum damorem, the bringing of a civil suit maliciously and without probable cause was not a ground upon which an action could be maintained. Yet there was this distinction: when an action was sued out maliciously and without probable cause, whereby the person of the defendant was arrested, or his property attached, or any special grievance to defendant, then in such a case the action would lie, and, as we understand, that was the common law when this State was a province, and when OUT adopting statute was passed in 1784, and would have been the law without this statute. There is a case which states this doctrine clearly and explicitly. In Savil v. Roberts, 1 Salk. 13, a decision by Lord Holt, which ia declaratory of the common law, in which it is stated that, since the passage of the act allowing costs to defendants where- plaintiffs are nonsuit or fail to recover, an action for maliciously ssing out an action cannot be maintained. Yet be- fore this statute such actions were con- stantly brought and maintained ; but, since the passage of the act-, in order to maintain the action it must be shown that the defendant maliciously sues the plaintiff either with intent to imprison him or do him some special prejudice ; then an action on the case lies, and the grievance must be set out specially. We take thi^ to be the common law, and as there is no statute changing this law, it is of force in this State." Mitch- ell r. Southwestern Bid. 75 6a. 398, . 404, 405. §245 WRONGS WITH PARTICULAR NAMES. [bOOK III. and without probable cause instituted a suit against another should not be required to pay the party so sued such sum as will make him entirely whole. And so a majority of the de- cided cases in this country hold." ^ § 245. Damages not recouped by Costs. — One who has been maliciously prosecuted civilly, the same as one prosecuted criminally, is, by all opinions, English and American, entitled to recover in this action compensation for what he has suffered outside of the return to which he was entitled in the costs.^ An instance is that of defamation, already spoken of.^ An- other, is any proceeding calculated to injure one's business credit.* And where there has been a malicious arrest, it has been ruled even in England that the injured party may recover in the malicious prosecution suit, beyond the taxed costs, his costs as between attorney and client. The general doctrine as held in England being pressed upon Lord Ellenborough, he replied : " If by your act you subject a party to a legal liability I McCardle v. McGinley, 86 Ind. 538, 540, 541, Tefemng to Loukenour V. Sides, 57 Ind. 360 ; Closson v. Sta- ples, 42 Vt. 209 ; Whipple v. Fuller, 11 Conn. 582 ; Marbourg v. Smith, 11 Kan. 554 ; Bumap p. Albert, Taney, 244 ; Cox i». Taylor, 10 B. Monr. 17. ^ Waterer v. Freeman, Hob. 266 a ; Pangbum v. Bull, 1 Wend. 345 ; Baron V. Sleigh, Cro. Eliz. 628, 629 ; Spaids V. Barrett, 57 111. 289 ; Bird v. Line, 1 Comyns, 190 ; False Affidavits, 12 Co. 128 ; Gray v. Degge, T. Jones, 132 ; Barnett v. Bead, 1 Smith, Pa. 190 ; Chapman v. Pickersgill, 2 Wils. 145 ; Johnson v. King, 64 Texas, 226 ; Streeper v. Ferris, 64 Texas, 12. » Ante, § 222. * Quartz Hill Gold Mining Co. ti. Eyre, 11 Q. B. D. 674. Brett, M. E. said in this case ; "When we look back to the decisions of the judges of earlier times (which decisions are to my mind the best guides for judges of the present day), we find it laid down by Holt, 0. J., in Savill v. Roberts, 1 Ld. Baym. 374, that there are three heads of dam- age which will support an action for 100 malicious prosecution. There is damage to a man's person, as when he is taken into custody, whether that be, as in for- mer times, upon mesne process or upon final process, or whether it be upon a criminal charge. To take away a man's liberty is damage, of which the law will take notice. Secondly, to cause a man to be put to expense is damage, of which the law will take notice. But Holt, 0. J., adds a third head of damage, and that is where a man's fair fame and credit are injured. . . . That seems to be the ground upon which Cleasby, B., supported the action in Johnson v. Em- erson, Law Eep. 6 Ex. 329, at p. 340, and I think that his view was right. By proceedings in bankruptcy a man's fair fame is injured just as much since the Bankruptcy Act, 1869, as it was be- fore, because he is openly charged with insolvency before he can defend himself. It is not like an action charging a mer- chant with fraud, where the evil done by bringing the action is remedied at the same time that the mischief is pub- lished, namely, at the triaL" p. 683- 685. CHAP. XV.] MALICIOUS PROSECtlTION. § 248 to pay a sum to another, you must indemnify him against such expenses ; if it were otherwise, it would come to this, that an attorney would not maintain an action against his client for the extra costs." ^ It is submitted that this is the true rule, wMch should be followed as well in the cases mentioned in the last section as in these. Exemplary damages are in some circumstances given in a malicious-prosecution suit;^ but, where they are not, if the plaintiff has already received in costs his entire actual damages, he cannot ask to have them paid a second time, yet he can justly claim reimbursement for whatever he has not thus received. V. After what Steps. § 246. Concurrent Proceedings. — It is the wise policy of the law to prohibit parties from litigating the same thing at the same time through two separate proceedings. There are numerous illustrations of this, and one of them appears in our present topic. We have seen * that, if a person prosecuted is irrevocably beaten, there remains to him no right to complain of the prosecution. Therefore, if, while a cause is depending, and the result of it is uncertain, the law permitted the defend- ant to bring a suit against the plaintiff or prosecutor, the courts would be required to entertain two simultaneous pro- ceedings to settle one and the same issue. Hence, — § 247. Doctrine defined. — A suit for malicious prosecu- tion can be brought only after the proceeding complained of is terminated past revival.* To illustrate, — § 248. Conditional Striking from Docket — ITolle Prosequi. — If, on motion of the State's attorney, a criminal cause is stricken from the docket, with leave to reinstate it, the de- 1 Sandback v. Thomas, 1 Stark. 306, Bandall, 36 Conn. 56 ; O'Brien v. Barry, 307. s. p. by Lord Abingev in Gould 106 Mass. 300 ; Lowe t). Wartman, 18 V. Barratt, 2 Moody & E. 171. Vroom, 413 ; Basebe v. Matthews, Law s Ziegler v. Powell, 64 Ind. 173. Rep. 2 C. P. 684 ; Casebeer v. Drahoble, » Ante, § 229, 242. 13 Neb. 465 ; Fisher v. Bristow, 1 Doug. * Casebeer v. Rice, 18 Neb. 203 ; 215 ; Castriqne v. Behrens, 3 Ellis & E. Severance v. Judkins, 73 Maine, 376, 709 ; Wood ». Laycock, 3 Met. Ky. 378 ; Morgan v. Hughes, 2 T. R. 225 ; 192 ; Smith ». Shackleford, 1 Nott & Gorrell v. Snow, 31 Ind. 215 ; Brown v. McC. 36 ; Pratt v. Page, 18 Wis, 337. 101 § 249 WRONGS WITH PABTICDLAR NAMES. [BOOK III. fendant is iiot;dischaTged from the indictment,: and a suit for malicious prosecution will be premature.^ But a nolle prosequi ends the indictment past recall,^ and thereupon the right to a malicious-prosecution suit is perfected,* — a proposition" from which a few of our courts^' misapprehending the effect of a nolle prosequi,* have dissented, making distinctions not neces- sary to be particularly pointed out here.^ §249. other Forms of Termination. — The methods of end- ing the proceeding are numerous, and they need not be all specified. It is sufficient, for example, if the indictment is quashed and the prisoner discharged- by judgment of the court.® Only the particular proceeding need be at an end, it being immaterial that the party is subject to a new one.'' A criminal prosecution, said a learned judge, is " terminated, 1, where there is a verdict of not guilty ; 2,' where tlie grand jury ignore a bill ; 3, where a nolle prosequi is entered ; and, 4, where the accused has been discharged from bail or im- prisonment." Therefore the court held that a prosecution was not ended while pending before the grand jury.* A discharge by the examining magistrate will suffice.* In the nature of some proceedings the defendant has nothing to do, and when- ever the plaintiff's steps are finished, the right to the malicious- prosecution suit is complete ; " as," it was judicially observed, " where the plaintiff was committed on articles of peace for a definite term unless he should find sureties for the peace. In such "a 'case the plaintiff is a].l(iwed,-ex.>neeessitate rei, to main- ^ Blalook V. Bandall, 76 111. 224. the molle pros^piiis entered upon an in- And see Bacon v. Waters, 2 AUen, 400. dictment for any cause." Taylor, J. in " 1 Bishop Grim. Proced. § 1395. Woodworth v. Mills, 61 Wis. 44, 52. ' Apgari). Woolston, 14 Vroom, 57 ; * Brown v. Lakeman, 12 Gush. 482 ; Lowe V. Wartman, 18 Vroom, 413 ; Parker v. Farley, 10 Gush. 279 ; Graves Chapman v. Woods, 6 Blackf. 504 ; v. Dawson, 133 Mass. 419 ; Graves v. Stanton v. Hart, 27 Mich. 539. Dawson, 130 Mass. 78 ; Langford v. * Explained in 1 Bishop Crim. Pro- Boston, &c. Eld. 144 Mass. 431 ; Garing ced. § 1395 and note. Consult also ». Fraser, 76 Maine, 37. Moulton V. Beecher, 8 Hun, 100, 1 « Hays ». Blizzai^d, 30 Ind. 457. Abh. N. Cas. 193 ; Kennedy v. Holla- ' Apgar v. Woolston, 14 Vroom, 57. day, 25 Mo. Ap. 508. " It seems to us 8 l,owe v. Wartman, 18 Vroom, 413, very clear that the rule as stated by Mr. 414, Parker, J. Bishop and the . judges in the cases » Costello o. Knight, 4 Mackey,- 65 ; above cited must be the true rule, when Moylei). Drake, 141 Mass 238. 102 CHAP. XV.] MAUCIOUS PBOSEGUTION. §250 tain his action, thongh he was discharged by the effluxion of the time for which he was committed, for the reason that he is not at liberty to controvert the statement of the defendants in making the complaint, and therefore could not have a hearing and obtain a favorable decision."^ A release on giving surety to keep the peace is a sufficient ending of the proceeding.* § 250. The Doctrine of this Chapter restated. One who, having no reasonable or probable cause to set in motion the law's processes against another, does it to promote some indirect or sinister end, — termed, in legal language, doing it maliciously, — and thereby inflicts some legal injury on the other, such as arresting his person, seizing his goods, or doing any other disturbance to his person or property, or maligning him, or impairing his business standing, or subject- ing him to the labor and expense of a defence beyond what he may have back in taxable costs, commits a civil wrong for which the party injured is entitled to redress in what is termed a suit for malicious prosecution. If the proceeding against him was successful, he is estopped to assert that it was malicious and without probable cause. Therefore he cannot bring his action for redress until that proceeding is terminated. The details, having already been stated, need not be repeated. 1 Apgar V. Woohton, 14 Vroom, i)7, v. Behrens, 3 Ellis & E. 709 ; Basebe 65, Depue, J., refen-ing to Steward v. v. Matthews, Law Rep. 2 C. P. 684. Gromett, 7 C. B. n. s. 191 ; Castrique " Hyde o. Greuch, 62 Md. 677. 103 § 253 WE0NG8 WITH PAETICULAB NAMES. [BOOK III. CHAPTEK XVI. SLANDER AND LIBEL. §251. Introduction. 252-257. General Doctrine. 258-277. Oral Slander. 278-286. Written, or Libel. 287-310. The Justifications and Defences. 811. Doctrine of Chapter restated. § 251. How Chapter divided. — We shall consider, I. The General Doctrine; II. Oral Slander; III. Written Slander, or Libel ; IV. The Justifications and Defences. I. The Greneral Doctrine. § 252. What and why. — The elucidations of the preceding chapters have brought fully to view the principles governing our present subject. A man who purposely, or even need- lessly or recklessly, does what injures another in any legal interest, must compensate him therefor. But a like harm, casually following one's lawful pursuit of his business, or the discharge of his legal or social duties, neither carelessly in- flicted nor the outcome of any evil purpose, falls upon the other as a common accident of life, for which there is no compensation.^ Hence — § 253. Doctrine defined. — He who, not in pursuance of any interest of his own, and neither in obedience to the law nor in the discharge of any public or private duty, so employs any words or signs as to injure another in a way and degree cog- nizable by the law, is liable to him in damages. As to the — I See the series of chapters, ante, § 97-185. 104 CHAP. XTI.] SLANDER AND UBEL. § 255 § 254. Nature of Injury — (Actionable or not Per Se). — The injury by words, for which the law gives compensation, may be judicially discernible as the natural or necessary consequence of the words tliemselves, in which case they are said to be actionable per se, or it may appear only on allega- tion and proof.i Waiving now the manner of showing it, such injury may be any pecuniary loss, as of money, business, or estate ; ^ any deprivation of personal liberty, or the en- dangering of it, as by a criminal prosecution ; * anything ex- cluding one from sociaL life, or tending to his being avoided by society;* in some ^circumstances, mental suffering;^ any loss of professional reputation, presumably calculated to im- pair the ability to obtain money ,^ — these and their affinities are severally legal damages, the bringing whereof upon one by words or signs is a wrong which the law will redress, when of a magnitude ^ justifying its interference. § 255. 'Written or Spoken. — Both oral words and written are, in the requisite circumstances, actionable. But the law deems writing a heavier form of defamation than mere speech, so that some defamatory words are actionable when written but not when orally uttered.* An attempt here to define the » Post, § 275 ; Stnddani v. Trucks, Mahoney v. Belford, 132 Mass. 393 ; 31 Ark. 726 ; Sterling v. Jngenheimer, Wolf v. Trinkle, 103 Ind. 353. Some 69 Iowa, 210 ; Can-oil v. White, 33 are inclined to pay but slight regard Barb. 615 ; Griffin v. Moore, 43 Md. to mental suffering. See, for example^ 246 ; Bock v. McClamon, 95 Ind. 415 ; Beach v. Banney, 2 HiU. N. Y. 309, Eea V. Harrington, 58 Vt 181 ; Shelby 314 ; Terwilliger v. Wands, 17 N. Y. v. Sun Printing, &c. Assoc. 38 Hun, 474. 54, 63. It is difficult to assign a sound 2 Ante, § 243 ; Bergmann v. Jones, 94 reason for extending a less protection to N. Y. 51 ; Gott v. Fulsifer, 122 Mass. the mind than to the body, though such 235 ; Hovey v. Rubber Tip Pencil Co. reasoning has often been attempted. 57 N. Y. 119, 125. And see 1 Bishop Mar. & Div. § 724- > Ante, § 243 ; Mitchell v. Milhol- 733 b. land, 106 111. 175 ; Rea v. Harrington, « Dixon v. Holden, Law Eep. 7 Eq. 68 Vt 181 ; Brooker t>. Coffin, 5 Johns. 488 ; Ayre v. Craven, 2 A. & K. 2 ; 188. Hartley v. Herring, 8 T. K. 130 ; Good- * Carslake v. Mapledoram, 2 T. R. enow v. Tappan, 1 Ohio, 60. 473, 475 ; Moore v. Meagher, 1 Taunt. ' Ante, § 35, 36. 39; Taylor „. Hall, 2 Stra. 1189; Da- « Whitney v. Janesville Gazette, 5 vies V. Solomon, Law Rep. 7 Q. B. 112. Bis. 330 ; Clement t>. Chivis, 9 B. & C. 6 Rea V. Harrington, 58 Vt. 181; 172; Thorley o. Kerry, 4 Taunt. 355; Chesley d. Tompson, 137 Mass. 136 ; Leicester «. Walter, 3 Camp. 214, note ; Donllut V. McManus, 37 La. An. 800 ; Miller v. Butler, 6 Cosh. 71, 75 ; Com- 105 § 257 WRONGS WITH PARTICULAR NAMES. [BOOK III. distinction by exact lines could hardly be successful. Instead of which, the two sorts of defamation will be considered in separate sub-titles, and the bounds of each will be given upon its own particular ground. § 256. The Defences — are the same in oral and written defamation. Therefore they will be considered together in our fourth subtitle. One matter extending through the law of the entire subject is in our books expressed by the word — § 257. MaUce. — A slander, whetheir written or oral, must, to be actionable, be what the law terms maliciousy so, or by something equivalent, charged in the allegation.^ But where the words are actionable per se^ a sort of imputed malice, called malice in law, is all that is required in the proof. There need be no ill will to the person slandered, or purpose to injure him ;3 but, in the law of slander and libel, the term " malice," when not qualified by any such word as " express " or "in fact," denotes simply that the act was voluntary and without legal excuse. And where there is neither the express nor the imputed malice, there is no actionable wrong.* Fur- ther explanations will appear in our fourth sub-title.^ monwealth v. ChUd, 13 Pick. 198, 202. King v. Boot, 4 Wend. 113 ; White v. I remember listening to an educated Nicholls, 3 How. U. S. 266, 284. man, not a lawyer, who" was defending ^ Ante, § 254. himself hefore a court and juiy on an ' Ante, § 142-147, 231-237. indictment for libel. He claimed that ^ Branstetter v. Dorrongh, 81 Ind. the evil of defematorywoi-ds lies in their 527, 530 ; Whittemore o. Weiss, 33 oral utterance, and that good rather Mich. 348; Williams v. Gordon, 11 than harm follows from printing them. Bush, 693 ; Whitney v. JanesvUle Ga- He quoted Job's exclamation, " Oh that zette, 5 Bis. 330 ; Finch v. Finch, mine adversary had written a book ! " 21 S. C. 342 ; Zuckerman v. Sonneu- meaning, he said, that if the adversary schein, 62 111. 115 ; Mitchell v. Milhol- had written the slander Job could have land, 106 111. 175 ; Gott ii. Fulsifer, 122 met and overturned it, when he could Mass. 235 ; Madeati v. Scripps, 62 not do the same thing with oral w6Tds; Mich. 214 ; Shipp ». Story, 68 Ga. 47 ; which could not be caught and held. Hovey v. Rubber Tip Pencil Co. 57 But plainly, on this view, there was an N. Y. 119, 125 ; Marks o. Baker, 28 actionable wrong ; since it would have Minn. 162 ; Horner «. Marshall, 6 required Job's valuable time and Intel- Munf. 466 ; Lester v. Thurmond, 51 lectual exertions, probably his money Ga. 118; Wozelka u. Hettrick, 93 N. C. also, to meet and refute the slander. 10 ; Bryant v. Jackson, 6 Humph. 199 ; And he who maliciously compels this Gates v. Meredith, 7 Ind. 440 ; Emmens should foot the bill. v. Pottle, 16 Q. B. D. 354 ; Bromage v. ' 1 . Saund. Wms. ed. 242 a, note ; Prosser, 4 B. & C. 247, 255. Hanning i>. Bassett, 12 Bush, 861 ; ^ Post, § 306. 106 CHAP. XVI.] SLANDER AND LIBEL. § 261 II. Oral Slander. § 258. Compared with "Written — (Magnitude). — From the doctrine that, for any combination of wrong and injury to be actionable it must have reached a standard in magnitude jus- tifying the law's interference,^ blended with the doctrine that oral words are less injurious than written, we have already derived the conclusion that a higher degree of evil must mingle with the oral than with the written to move the courts to give redress therefor.^ Thus, — § 259. Contempt and Ridicule. — Words simply tending to bring a person in the common walks of life into contempt and ridicule may be actionable if written,^ but they are not so when uttered orally.* Now, — § 260. Technical. — In the nature of things, there can be no rule of reason, exact and certain in its application, to deter- mine whether or not particular words in given circumstances carry enough of evil to justify the interference of the law. Were the question new, and to be judicially decided for the first time, judges would differ, and no one could predict with exact- ness where a particular bench of judges would draw the line. Or, were it first legislatively passed upon, no body of law- makers could enact a rule in the practical interpretation whereof all judges would agree. But the courts of the past times, being required to decide multitudes of questions, have reached conclusions out of which it has become not difficult to eliminate outlines of doctrine, in a considerable degree technical, yet serving the practical purposes of justice. Thus,— § 261. Defined. — Oral slander is one's malicious ^ uttering of words distinctly importing that another is guilty of some ' Ante, § 35, 36. Anonymous, 60 N. Y. 262 ; Steele v. * Ante, § 255. Sonthwick, 9 Johns. 214 ; Cooper v. » Post, § 285. Greeley, 1 Denio, 347, 362. * Colby V. Reynolds, 6 Vt. 489 ; « Ante, § 257 ; Williams v. Gordon, Onslow V. Home, 3 Wils. 177, 186, 11 Bush, 693; Belok v. Belck,-,97 Ind. 187 ; Filber v. Dautermann, 28 Wis. 78 ; Burton v. Beasley, 88 Ind. 401. 134 ; Nelson v. Borohenius, 52 111. 236 ; 107 § 262 WRONGS WITH PARTICULAR NAMES. [BOOK HI. indictable offence (either in its nature odious, or subject to an infamous or odious punishment) ; ^ or that he has some contagious disease, of a sort tending to exclude him from society; or, if spoken of him in reference to his business, profession, or calling, or of a public office which he holds, calculated to injure him therein ; or, of whomsoever spoken, found, on special allegation and proofs, to have in fact sub- jected him to some personal or pecuniary damage.* More specifically, — § 262. Accusation of Crime : — General. — Subject to very little if any qualification, it is the doctrine of all our courts that to charge one orally with either a common-law or statutory crime, punishable by indict- ment, is actionable. And as the criminal laws of our States somewhat differ, the rule in slander varies with them. But, 1 Perhaps, as see post, § 266. * There is a special difficulty in de- fining oral slander, growing out of the facts that the ancient and modem de- cisions do not absolutely harmonize, and particularly that the courts of our respective States differ in their conclu- sions upon some minor particulars. The United States Supreme Court, in Pollard V. Lyon, 91 U. S. 225, in an able opinion by Clifford, J. investigated the subject pretty carefully, and arrived at conclusions not greatly differing from the above. "Oral slander, as a cause of action," said the court, "may be divided into five classes, as follows : 1. Words falsely spoken of a person which impute to the party the commis- sion of some criminal offence involving moral turpitude, for which the pai"ty, if the charge is true, may be indicted and punished. 2. Words falsely spoken of a person which impute that the party is infected with some contagious disease, where, if the charge is true, it would exclude the party from society. 3. De- famatory words falsely spoken of a per- son, which impute to the party unfitness to perform the duties of an office or em- ployment of profit, or the want of in- 108 tegiity in the discharge of the duties of such an office or employment, i. De- famatory words falsely spoken of a party which prejudice such party in his or her profession or trade. 5. Defamatoiy words falsely spoken of a pei-son, which, though not in themselves actionable, occa.siou the party special damage." p. 226. Kent, 2 Cora. 16, defines thus : ' ' The injury consists in falsely and maliciously charging another with the commission of some public offence, criminal in itself, and indictable, and subjecting the party to an infamous punishment, or involving moral turpi- tude, or the breach of some public trast; or with any matter in relation to his particular trade or vocation, and which, if true, would render him unworthy of employment ; or, lastly, with any other matter or thing by which special injury is sustained." He refers to Brooker v. Cofiin, .5 Johns. 188, and Van Ness v. Hamilton, 19 Johns. 349, 367. I will add, among later cases, McNamara i;. Shannon, 8 Bush, 557 ; Zeliff v. Jen- nings, 61 Texas, 458 ; Kimmis v. Stiles, 44 Vt. 851 ; Davis v. Brown, 27 Ohio State, 326. CHAP. XVI.] SLANDER AND UBEL. §264 except as to be explained further on in this sub-title, no scan- dalous words not importing crime constitute slander.^ For example, it is not actionable to charge one with having " swin- dled a man out of five hundred dollars," where this is not an indictable offence.^ Descending more to particulars, — § 263. Accusation of Crimmal Purpose — (Future). — Or- dinarily to impute orally to a person the intent to commit a crime or any undeveloped criminal wickedness, or to predict that he will hereafter incur guilt, is not going far enough to constitute slander.^ Thus, the words " You wUl steal," or " I believe you will steal," ynexplained, will not suflBce.* § 264. Doubtful Meauing. — If the words are of doubtful meaning, and they do not fairly imply guilt, they are insuffi- cient ; * as, " You burnt your buildings," which would be a crime or not according to the circumstances.^ So the words, " You took my money and have it," do not necessarily impute larceny, and unexplained they are not actionableJ But they 1 Holt V. Scholefield, 6 T. E. 691, 694 ; Hutts V. Hutts, 62 Ind. 214 ; Spooner v. Eeeler, 51 N. Y. 527 ; Kim- mis V. Stiles, 44 Vt. 351 ; Seller v. Jen- kins, 97 Ind. 430 ; Anonymous, 60 N. Y. 262 ; Haag r. Cooley, 33 Kan. 387 ; Klnmph v. Dunn, 16 Smith, Pa. 141 ; Quigley v. McKee, 12 Oregon, 22 ; Webb V. Beavan, 11 Q. B. D. 609; Kinney t>. Hosea, 3 Haning. Del. 77 ; Demarest t>. Haring, 6 Cow. 76 ; Luke- hart V. Byerly, 3 Smith, Pa. 418; Wyant v. Smith, 5 Blackt 293 ; Burton o. Barton, 3 Greene, Iowa, 316 ; Birch V. Benton, 26 Mo. 153 ; Speaker v. Mc- Kenzie, 26 Mo. 255 ; Tomlinson v. Brit- tlebank, 4 B. & Ad. 630 ; Davis v. Brown, 27 Ohio State, 326. Orally to chaige one with an offence purely mili-. tary is not actionable. Hollingsworth .7. Shaw, 19 Ohio State, 430. And where the wrong charged is a civil one, the particmar form of it mast be indict- able ; as, it is not actionable to accuse a witness of perjury in. a trial before a magistrate who sat without jurisdiction, for false swearing in such a case is not in law perjury. Hamm v. Wickline, 26 Ohio State, 81. " Weil V. Altenhofen, 26 Wis. 708 ; FUber v. Dautermann, 28 Wis. 134 ; Weil V. Schmidt, 28 Wis. 137 ; Lucas V. Flinn, 35 Iowa, 9 ; Pollock v. Hast- ings, 88 Ind. 248 ; Winter v. Somvalt, 3 Har. & J. 38 ; Savile v. Jardine, 2 H. Bl. 531. » Eaton «. Allen, 4 Co. 16 J ; Bland's Case, Hut. 18 ; Brittridge's Case, 4 Co. 18 6 ; I^cKee v. Ingalls, 4 Scam. 30 ; Wilson V. Tatum, 8 Jones, N. C. 300 ; K. V. H. 20 Wis. 239 ; Dickey v. An- dres, 32 Vt. 55 ; Harrison v. Stratton, 4 Esp. 218. * Bays ». Hunt, 60 Iowa, 251. * Stitzell V. Reynolds, 9 Smith, Pa. 488 ; Steward v. Bishop, Hob. 177 ; Grady v. Smith, 1 Lev. 250 ; Bobins v. HUdredon, Cro. Jac. 65 ; Barber's Case, Sir F. Moore, 401 ; Peterson v. Sent- nian, 37 Md. 140 ; Rock v. McClamon, 95 Ind. 415 ; Casselman v. Winship, 3 Dak. 292 ; Emmerson v. Marvel, 65 Ind. 265. ' Estes V. Estes, 75 Maine, 478. ' Christal V. Cniig, 80 Mo. 367. 109 § 266 WEONGS WITH PAETICULAE NAMES. [BOOK III. need not be technically accurate, like those required in an in- dictment ; it is enough that they are presumably understood to charge crime.^ For example, it is a slander to call one a " thief," 2 an " abortionist," * or to say that he stole.* But — § 265. Interpreted together. — All the words must be inter- preted together and in connection with the surroundings.^ For example, " Thou art a thief, and hast stolen twenty loads of my furze," or my " trees," ® are not slander in a locality where it is not larceny to pui-loin things which are parcel of the realty. And it is not such to charge one with a peniten- tiary offence, adding that he was insane when he did it.^ §266. Nature of Crime. — It is the English doctrine that the accusation of anything indictable suffices. It need not even specify a particular crime ; * as, " I will lock you up in Gloucester jail next week, I know enough to put you there," charged in the declaration to mean that the plaintiff had com- mitted some criminal offence, was held on demurrer to be sufficient.* On the other hand, in Pennsylvania, " in order to render words spoken of a private person actionable," said the learned judge, " they must impute, not only an indictable offence, but one of an infamous character, or subject to an infamous or disgraceful punishment." So that, though a statute had made the stealing of things attached to the free- hold an indictable misdemeanor, an oral imputation of it was adjudged not to be slander ; because the crime was of a sort 1 Stroebeli). .Whitney, 31 Minn. 384; 1- ; Jackson v. Adams, 2 Scott, 599, 2 LafoUett v. McCarthy, 18 Bradw. 87 ; Bing. N. C. 402. Bihler v. Gockley, ,18 Bradw. 496; « Clearke v. Gilbert, Hob. 331a; Zimmerman v. McMakin, 22 S. C. 372 ; Coote v. Gilbert, Hob. 77 6. And see Colman v. Godwin, 3 Doug. 90 ; Car- Wing v. Wing, 66. Maine, 62. penter v. Tarrant, Cas. temp. Hardw. ' Abranis v. Smith, 8 Blackf. 95. 339. So of perjury, in a connection showing 2 Sabin v. Angell, 46 Vt. 740 ; Rey- the false swearing not to constitute per- nolds V. Eoss, 42 Ind. 387. jury in law. Pegram v. Stoltz, 76 N. s De' Pew V. Eobiuson, 95 Ind. 109. C. 349. * Taylor V. Short, 40 Ind. 506. 8 Jenkinson v. Mayne, 1 Cro. Eliz. s Hall V. Adkins, 59 Mo. 144 ; 384 ; Donne's Case, 1 Cro. Eliz. 62 ; Works V. Stevens, 76 Ind. 181 ; Taylor Curtis ». Curtis, 10 Bing. 477 ; Francis V. Short, 40 Ind. 506 ; Parmer ti. 'An- v. Koose, 3 M. & W. 191 ; Fowler v. derson, 33 Ala. 78 ; McCaleb v. Smith, Dowdney, 2 Moody & R. 119. 22 Iowa, 242 ; Brite v. Gill, 2 T. B. » Webb v. Beavan, 11 Q. B. D. 609. Monr. 65 ; Carter v. Andrews, 16 Pick, 110 CHAP. XVI.] SLAKDER AND LIBEL. § 267 not rendering the person convicted of it infamous.^ In our other American courts, we sometimes meet with words more or less corresponding to these Pennsylvania ones,^ and some- times more nearly affirming tlie English doctrine.* But the actual a.djudications conflicting with the English are few, and it would be difficult to find any solid reasons for multiplying them.* StUl, if the accusation was only of some minor offence, not malum in se, — such as the unlicensed selling of a glass of beer, punishable by a fine of twenty dollars, and collectible by indictment, — we may doubt whether an action for oral slander could be maintained thereon.^ We find illustrations of this subject in the frequent oral imputations of — § 267. Adultery and Fornication. — In States where these offences are indictable, it is commonly held to be an actionable slander to accuse a person of having committed one of them ; * as, to say of an unmarried woman that she is " a whore." ^ But where either remains, as at the common law, not punish- able criminally, the oral imputation of it is not slander.* Contrary to this, however, the Iowa court has, without any sort of statutory. aid, declared it actionable to impute to any female a want of chastity, because manifestly hindering her ' Stitzell V. Reynolds, 17 Smith, dered is injured ; " Johnson v. Shields, Pa. 54, 57, Williams, J. referring to 1 Dutcher, 116. Dottarer v. Bushey, i Harris, Pa. * Page v. Merwin, 54 Conn. 426. 204 ; Gosling v. Morgan, 8 Casey, Pa. * And see Elliot v. Ailsberry, 2 Bihb, 273 ; Stitzell v. Eeynolds, 9 Smith, Pa. 473 ; Wagaman v. Byers, 17 Md. 183. 488. « Miller v. Parish, 8 Pick. 384, 385 ; " Howard v Stephenson, 2 Mill, 408 ; Syraonds a. Carter, 32 K. H. 458 ; Wright V. Paige, 36 Barb. 438 ; Young Eeitan v. Goebel, 33 Minn. 151 ; Pat- V. Miller, 3 Hill, N. Y. 21, 22 ; Smith terson v. Wilkinson, 55 Maine, 42 ; V. Smith, 2 Sneed, 473 ; McNamara v. Page v. Merwin, 54 Conn. 426. Shannon, 8 Bush, 557 ; Zeliff v. Jen- ' Mayer v. Schleichter, 29 Wis. 646. nings, 61 Texas, 458. 8 Beny v. Carter, 4 Stew. & P. 387 ; » Chaddock v. Briggs, 13 Mass. 248 ; Pollard a. Lyon, 91 IT. S. 225 ; Dukes Wiley V. Campbell, 5 T. B. Monr. 396 ; v. Clark, 2 Blackf. 20 ; Vanderlip v. Bloss V. Tobey, 2 Pick. 320, 328, where Roe, 11 Harris, Pa. 82 ; Roberts v. Parker, C. J. states the "modern doc- Roberts, 5 B. & S. 384, 389 ; Wilby o. trine" to be, " that words spoken, to be Klston, 8 C. B. 142 ; Griffin v. Moore, actionable, must import in themselves a 43 Md. 246. Keeping a Bawdy- clutrge of some punishable offence, or an house, — being indictable, an oral ac- imputation of some disgraceful disease, cusation of this offence is actionable. or be spoken in relation to some trade Griffin v. Moore, snpra ; Cook v, Rie^ or occupation in which the party slan- 52 N. Y. Super. 302. Ill § 269 WRONGS WITH PARTICULAR NAMES. [BOOK III. advancement in life.^ The same conclusion has also been reached in Ohio.^ And in some of the other States this rule has been provided by statutes. ^ § 268. Accusation of Contagious Disease. General. — A proper position in society being deemed by the law a thing of value,* it becomes consequently' action- able to impute to one what will necessarily, if the imputation is believed, exclude him from all society. This doctrine has not been practically carried into the moral qualities,^ but — § 269. Physical Contagion. — It is in general terms laid down as actionable to charge one with having any contagious disease ; ® but not with having had it, because this does not, like the other, exclude him from society.^ The reported cases in which this doctrine was applied have all been such as of leprosy, which is incurable, and the various forms of venereal disease, which are specially odious. And we have no authority for saying that orally to charge one with having the mumps or the small-pox — infectious diseases which im- ply no moral delinquency, and quickly pass away — would be actionable.8 1 Snediker v. Poorbaugli, 29 Iowa, supra, at p. 328 ; Crittal v. Homer, 488, referring to Beardsley w. Bridgman, Hob. 219 b ; Bloodworth v. Gray, 8 17 Iowa, 290, 292 ; Cleveland v. Det- Scott N. E. 9 ; Kaucher v. Blinn, 29 weiler, 18 Iowa, 299, 300. And see Ohio State, 62 ; Brook v. Wise, 2 Cro. Reitan v. Goebel, supra. Eliz. 878 ; Clifton v. Wells, 12 Mod. 2 Alfele V. Wright, 17 Ohio State, 634. 238, 241 ; Malone ». Stewart, 16 Ohio, ' Carslake v. Mapledoram, 2 T. E. 319. 473, 475 ; Taylor v. Hall, 2 Stra. 1189 ; 8 Waugh II. Wangh, 47 Ind. 580 ; Golderman v. Stearns, 7 Gray, 181. Belck V. Belok, 97 Ind. 73 ; Morris v. ^ " Ka action for oral slander, in Barkley, 1 Litt. 64 ; Stieber v. Wensel, charging the plaintiff with disease, Jias 19 Mo. 513 ; McBrayer o. Hill, 4 Ire. been confined to the imputation of such 136 ; Griffin v. Moore, 43 Md. 246 ; loathsome and infectious maladies as Buscher v. Scully, 107 Ind. 246 ; would make him an object of disigust Kedrolivansky i;. Niebaum, 70 Cal. and aversion, and banish him from hu- 216 J McKinney v. Roberts, 68 Cal. man society. We believe the only ex- 192. amples which adjudged eases furnish * Ante, § 264. are of the plague, leprosy, and venereal * Davis V. Brown, 27 Ohio State, 326. disorders." Hoar, J. in Joannes v. « Taylor v. Perkins, Cro. Jac. 144 ; Burt, 6 Allen, 236, 239. And see post, James v. Rutlech, 4 Co. 17 a ; Irons v, § 282. Field, 9 R. I. 216 ; Davis v. Brown, 112 CHAP. XVI.] SLANDER AND LIBEL. §271 § 270. Accttsation Injurious to One in hia Business or Office : — General — Any merely oral malicious ^ imputation upon one who is ^ alleged and proved to be of some particular law- ful 3 profession, calling, or business, or the incumbent of some particular office, of what is directly calculated * to injure him therein, is actionable without any showing that injury has in fact followed.^ For example, — §271. niustratioDs. — To impute to a physician^ or an apothecary T ignorance of his profession, or to a mechanic want of skill in his work ; * to charge one in trade with keep- ing a disreputable place,^ or being a beggarly fellow and worth nothing ; ^"^ to say of a postmaster that he would rob the mail ; ^ to call a preacher a drunkard,^ a business man a defaulter ,^^ or a lawyer a cheat ; ^* to accuse one who carries on a credit business with keeping false books,^^ — each of these, if the words are spoken of the person in relation to his calling or 1 Ante, § 257. ^ The doctrine does not apply to a past business or office, which the party has lelinqaished. Bellamy a. Barch, 16 M. & W. 590 ; Forward v. Adams, 7 Wend. 204. 8 Morris V. Langdale, 2 B. & P. 284 ; Hunt V. Bell, 1 Bing. 1 ; Marsh v. Da- vison, 9 Paige, 580. * " Direct and probable result," Brett, L. J. in Chamberlain c. Boyd, 11 Q. B. D. 407, 413. * Foulger v. Newcomb, Law Eep. 2 Ex. 327, 330 ; Jones v. Littler, 7 M. & W. 423 ; Terry v. Hooper, 1 Lev. 115 ; Ame v. Johnson, 10 Mod 111 ; Singer v. Bender, 64 Wis. 169 ; Nelson r. Borchenios, 52 111. 236 ; Sanderson V. Caldwell, 45 N. Y. 398, 405 ; James V. Brook, 9 Q. B. 7 ; Gallwey v. Mar- shall, 9 Ezch. 294 ; Caesar v. Curseny, 1 Cro. Eliz. 305 ; Phillips e. Jansen, 2 Esp. 624 ; Geary v. Bennett, 65 Wis. 554 ; Miller v. David, Law Rep. 9 C. P. 118 ; Kinney v. Nash, 3 Comst. 177 ; Hook V. Hackney, 16 S. & R. 385; PhiUips V. Hoeffer, 1 Barr, 62 ; Davis v. Davis, 1 Nott & McC. 290 ; Ostrom v. 8 Calkins, 5 Wend. 263 ; Ore v. Skofleld, 56 Maine, 483. « De Pew B. Robinson, 95 Ind. 109 ; Lynde v. Johnson, 39 Hun, 12 ; Ber- gold ». Puchta, 2 Thomp. & C. 532 ; Sumner v. Utley, 7 Conn. 257. ' Tutty V. Alewin, 11 Mod. 221. 8 Fitzgerald Simson v. Barlow, 12 Mod. 591 ; Garret v. Shelson, 2 Show. 295 ; Lewis V. Hawley, 2 Day, 495 ; Mott v. Corn- stock, 7 Cow. 654 ; Sewall v. Catlin, 3 Wend. 291. " Craig V. Brown, 5 Blackf. 44. " McMillan v. Birch, 1 Binn. 178 ; Hayner v. Cowden, 27 Ohio State, 292. " Noeninger v. Vogt, 88 Mo. 589. M Bush V. Cavenaugh, 2 Barr, 187 ; Chipman v. Cook, 2 Tyler, 456 ; Jen- kins V. Smith, Cro. Jac. 586 ; Birchley's Case, 4 Co. 16 a. 1^ Bnrtch v. Nickerson, 17 Johns. 217 i Eathbnn v. Emigh, 6 Wend. 407. 113 §274 WRONGS WITH PABTICULAE NAMIS. [BOOK III. oflBce, and are so alleged and proved,^ and if they injuriously affect him therein,^ is an actionable slander per se, and no damage in fact need be shown. And still, — § 272. Actual Damage. — In this class of cases, the same as in those about to be stated, there are circumstances in which actual damage alleged and proved will sustain the action when otherwise it would fail.^ § 273. Accusation followed hy Special Damage: — General. — An oral malicious* accusation of anything de- famatory,^ the natural and probable consequence^ whereof will be to inflict legal damage upon one, will, if on spe- cial allegation and proof such damage is shown to have re- sulted therefrom, sustain an action against the wrong-doer.^ Thus, — § 274. niuBtrations. — To impute to a wife adultery, caus- ing the withdrawal of the hospitalities of friends,* or unchas- tity to a female lodger whereby she is turned out of the house,* or to a woman incontinence causing grief which impairs her 1 Van Tassel v. Capron, 1 Denio, 250 ; McGnire v. Blair, 2 Car. Law Repos. 443. ■•' Kinney ». Nash, 3 Comst. 177. » Windsor v. Oliver, 41 Ga. 538 ; Swan V. Tappan, 5 Cush. 104 ; Jones v. Diver, 22 Ind. 184 ; Foot v. Brown, 8 Johns. 64. * Ante, § 257. 5 Terwilliger v. Wands, 17 N. Y. 54, 62. The words "must he defamatory or injurious in their nature." Little- dale, J. in Kelly v. Partington, 5 B. & Ad. 645, 650. On the other hand, it is denied that they need he defamatory if they cause special damage. Bentley V. Reynolds, 1 MoMul. 16. "All words are actionahle if a special dam- age follows." Heath, J. in Moore v. Meagher, 1 Taunt. 39, 44. 6 " The special damage must he the natural result of the thing done." Pat- tesou, J. in Kelly v. Partington, 5 B. & Ad. 645, 651. "Must he the natural and immediate consequence." Bron- son, J. in Beach «. Ranney, 2 Hill, 114 N. Y. 309, 314 ; Grover, J. in Anony- mous, 60 N. Y. 262, 264. "Natural, immediate, and legal consequence." Strong, J. in Terwilliger v. Wands, 17 N. Y. 54, 57. " Legal and natural con- sequence." Lord Ellenhorough, C. J. in Vicara v. Wilcoeks, 8 East, 1, 3. ' Pollaid V. Lyon, 91 U. S. 225 ; Servatius v. Pichel, 34 Wis. 292 ; Rob- erts V. Roberts, 5 B. & S. 384 ; Storey V. Challands, 8 Car. & P. 234 ; Hartley V. HeiTing, 8 T. R. 130 ; Vicars v. WU- cocks, 8 East, 1 ; Prettyinan v. Shock- ley, 4 Harring. Del. 112 ; Bentley v. Reynolds, 1 McMul. 16 ; Wardu Weeks, 7 Bing. 211 ; Beach v. Ranney, 2 Hill, N. Y. 309 ; Cook v. Cook, 100 Mass. 194 ; Bassil v. Elmore, 65 Barb. 627 ; Wilson V. Oottman, 65 Md. 190 ; Stud- dard v. Trucks, 31 Ark. 726. * Moore v. Meagher, 1 Taunt. 89 ; Davies v. Solomon, Law Rep. 7 Q. B. 112. The same though the woman is unmarried. Williams v. Hill, 19 Wend. 306. 9 Knight V. Gibbs, 1 A. & E. 43. CHAP. XVI.] SLANDER AND LIBEL. § 277 ability to pursue her usual avocations ; ^ or to say to a man that his affianced is the mother of a bastard, whereby she loses her maiTiage,^ — these are severally apt illustrations of slander with special damage. Loss of employment,^ or of the sale of property,* or of a customer,^ or dismissal from the office of constable,® is also, among numerous other like evil consequences, special damage. § 275. Other Matters : — Actionable Per Se — Deunage. — When the words are action- able per se,'' — that is, when they come under any of the fore- going heads except the last, — the action is maintainable without any proof of actual damage, the wrong implying in- jury.* But it is common for the parties, on the one side and on the other, to introduce evidence in aggravation and miti- gation of damages, a question not for particular consideration here.* § 276. Fablished. — Oral words must, like written ones, be published — that is, uttered in the hearing of a third person — to constitute a ground of action ; for without publication there has been no injury.^" But it does not take away their legal effect for the utterer to say that he does not believe them." If they are not meant or understood to be spoken as tnith, they are not slander .^^ § 277. Meaning. — There is just ground for saying that words are not actionable unless understood by the hearers in the evil sense which the law requires ; because, in the absence 1 UnderhiU «. Welton, 32 Vt. 40 ; 7 Ante, § 2.54. Bradt v. Towsley, 13 Wend. 253. But » Boldt v. Budwig, 19 Neb. 739 ; see, and query, dictnin in Terwilliger v. Cook v. Field, 3 Esp. 133 ; Brown v. Wands, 17 N. Y. 54, 63. See ante. Smith, 13 C. B. 596, 17 Jur. 807 ; Tripp § 254, note. •/. Thomas, 3 B. & C. 427. i" Davis V. Gardiner, 4 Co. 16 J ; 9 Rhodes v. Naglee, 66 Cal. 677 ; Holwood V. Hopkins, 2 Cro. Eliz. 787. Tfllotson v. Cheetham, 3 Johns. 56 ; 8 Martin v. Strong, 5 A. & E. 535. Douglass v. Craig, 3 La. An. 639 ; * Gott V. Pulsifer, 122 Mass. 235. Lamos v. Snell, 6 N. H. 413 ; Howell ' Storey v. Challands, 8 Car. & P. ». Howell, 10 Ire. 84 ; post, § 310. 234 ; Browning v. Newman, 1 Stia. i" Ante, § 24 ; Broderick v. James, 666. 3 Daly, 481 ; Taylor v. How, 2 Cro. « Kendillon v. Malthy, Car. & M. Eliz. 861. 402, 2 Moody & B. 438. See Edwards » Finch v. Finch, 21 S. C. 842. V. Howell, 10 Ire. 211. " Haynes v. Haynes, 29 Maine, 247. 115 § 279 WEONGS WITH PABTICULAB NAMES. [BOOK III. of such understanding, there is no injury.^ But prima facie they will be presumed to have been understood according to their common import,^ and as they would naturally impress the minds of the hearers,^ or as the defendant meant them.* The doctrine thus stated is theoretically unquestionable,^ but there are practical objections to it, and there is authority for saying that, on the other hand, the meaning which, under all the circumstances, they were calculated to impress on the minds of the hearers should determine the speaker's responsibility.® III. Written. Slander, or Libel. § 278. Same as Oral, and More. — Words which are action- able when orally spoken, within the explanations of the last sub-title, are not the less so if written ; or, as otherwise ex- pressed, " it will be stronger in the case of a libel." ^ So that the doctrines of the last sub-title are applicable to this, as far as they extend ; and the principal purpose of the present sub- title is to ascertain the wider outer limits in libel. Now, — § 279. In Criminal Law. — Libel, with a very narrow mar- gin of verbal slander, is one of the wrongs against the public punishable as crime.^ And it is one of the doctrines in our jurisprudence that he who suffers from a crime specially, in a way or degree differing from the rest of the public, may have his civil action against the wrong-doer.^ Hence — 1 Studdard v. Linville, 3 Hawks, ' Davis v. Johnston, 2 Bailey, 579 ; 474 ; Barton v. Holmes, 16 Iowa, 252 ; Welsh e. Eakle, 7 J. J. Mar. 424 ; Gar- Leonard V. Allen, 11 Gush. 241 ; Nide- rett v. Dickerson, 19 Md. 418 ; De Moss ver V. Hall, 67 Gal. 79. v. Haycock, 15 Iowa, 149 : Read v. " Sheridan v. Sheridan, 58 Vt. 504 ; Ambridge, 6 Gar. & P. 308 ; Shipley v. Thirman v. Matthews, 1 Stew. 384 ; Todhunter, 7 Gar. & P. 680. Ogden V. Riley, 2 Green, N. J. 186 ; « Ante, § 24. McGowan v. Manifee, 7 T. B. Monr. » Dixon v. Stewart, 33 Iowa, 125 ; 314 ; Butterfield v. Buffum, 9 N. H. Jamigan v. Fleming, 43 Missis. 710 ; 156 ; Cooper i). PeiTy, Dudley, Ga. 247j Nelson v. Borchenins, 52 111. 236 ; Mil- Hngley u, Hugley, 2 Bailey, 592 ; Car- ler v. Johnson, 79 111. 58. roll 0. White, 33 Barb. 615 ; Fallen- ' Harman v. Delany, 2 Stra. 898, 899. stein V. Boothe, 13 Mo. 427. » 2 Bishop Grim. Law, § 905-949. 8 Campbell v. Campbell, ,54 Wis. 90 ; 9 _A^nte, § 71 ; 1 Bishop Grim. Law, Hankinson v. Bilby, 16 M. & W. 442. § 264 ; post, § 355. 116 CHAP. XVI.] SLANDER AND LIBEL. 280 § 280. Defined. — Libel, viewed as tort, is any published written slander which would be actionable if uttered orally, or which in fact has done to the person libelled special dam- age ; or any written words, sign, picture, effigy, or other like representation, published maliciously,^ which imputes to one dishonesty or any other repulsive moral or physical quality, or is calculated to bring him into hatred, contempt, or ridi- cule.^ To particularize, — 1 Ante, § 257. 2 Largely, in our Iiooks, written and oral slander, and the civil and criminal hhel, are mixed where they ought to be distinct and separate. The drawing of the true partition lines between them is indispensable to any proper understand- ing of the subject. .Thus, as to the definition : in the criminal case of Peo- ple V. Croswell, 3 Johns. Cas. 337, 354, a libel is defined to be "a censorious or ridiculing writing, picture, or sign, made with a mischierons and malicious intent towards government, magistrates, or individuals." This definition, though not in the more common terms, harmo- nizes with the ordinary definitions of the criminal libel. 2 Bishop Crim. Law, § 907, 908. Thereupon, in the eivU action of Steele v. Southwick, 9 Johns. 214, 215, it is judicially observed that "the definition of a Ubel, as given by Mr. Hamilton in the case of People V. Croswell, is drawn with the utmost precision ; " so this definition of the crime is adopted as that of the tort, without its occurring to the learned court that there is a wide distinction. And the same thing is repeated in the subsequent case of Cooper v. Greeley, 1 Denio, 347, 359. It is repeated also in Price v. Whitely, 50 Mo. 439. Now, on the face of this definition, it is a great way astray when applied to the civU libel. A writing simply ridiculing the government, and not any particular officer of it, could not be actionable, be- cause there would be no plaintiff who had suffered an injury, other than the government. And the government could not bring a civil suit, its remedy would be by indictment. On the other hand, this definition leaves outside of its pur- view, a mass of civil wrong undefined, yet always regarded as libel. Some- thing precisely like this occurs in the Massachusetts civil case of Clark v. Bin- ney, 2 Pick. 113, 115. "The. law," it is there observed, "holds that to be a libel which, in writing or printing, or by signs; or pictures, maliciously re- proaches the memory of the dead, or defames the reputation of the living, and tends to excite toward them public contempt or hatred. In Com. Dig. tit. Libel, A, a libel is defined to be ' a con- tumely or reproach, published to the defamation of the government, of a magistrate, or of a private person. ' But the most clear and precise definition of a libel, as applicable to personal actions, is contained in the opinion of the late Chief Justice Parsons, in the case of Commonwealth v. Clap, 4 Mass. 163, 168. ' It is,' says he, ' a malicious pub- lication, expressed either in printing or writing, or by signs or pictures, tending either to blacken the memory of one dead, or the reputation of one who is alive, and expose him to public hatred, contempt, or ridicule.' To the correct- ness of this definition no objection can now be urged. It rests upon the au- thority of an unbroken series of de- cisions for ages, and its application to the condition of civilized society, and to individuals in social life, has the sanction of reason, and the approval of every reflecting and intelligent mind." Thereupon this learned court, without 117 §282 WRONGS WITH PARTICULAR NAMES. [BOOK III. § 281. Actionable if Oral. — It is but repetition to say that any words which are actionable when oral are so also when written ; as, for example, words charging one with a crime,i or charging a physician with culpable neglect in a case,^ or an attorney-at-law with professional misconduct,^ or being a " shyster." * In addition to which, — § 282. Because 'Written. — To an extent not well defined in the books, words less odious than are required to constitute actionable oral slander, yet of the like general sort, will, if written, sustain a civil suit for libel.^ Cooley ^ illustrates this, thus : " to say of a man, ' I look upon him as a rascal,' is no slander, unless shown to be damaging ; but, if it be published of him in one of the public journals, the presumption that injury follows is reasonable and legitimate.^ So, to call a man in print ' an imp of the devil and cowardly snail ' is libellous, though an oral imputation of the sort would be presumably harmless."^ And Daniel, J., in illustration, observes: "To any thought of the distinction between an indictment and an action of tort, pro- ceeds to apply this criminal definition to the civil case in hand. Possibly, if the civil suit had happened to be, as it was not, one by a dead man for a re- ' proach cast upon his memory, the judges would have looked upon the definition as a little mixed, and inquired whether there was not here, after all, a distinc- tion. See also, of the like sort, Her- mann V. Bradstreet Oo. 19 Mo. Ap. 227 ; and Legg v. Dunleavy, 80 Mo. 558, and Eeemle v. Sass, 12 Hisso. 499, referred to therein. In the later Massachasetts case of Miller v. Butler, 6 Cush. 71, 75, where civil damages were claimed for the publishing of a libel, the court does not recall this prior matter, but quotes approvingly the following from a note to Craft V. Boite, 1 Saund. Wms. ed. 246 6, 248 : " To write or publish any- thing of another, which either makes him ridiculous, or holds him out as a dishonest man, is held to be actionable, when the speaking of the same words would not be." And the following cases are cited : ViUers v. Monsley, 2 Wils. 118 403 ; Austin v. Culpeper, Skin. 123, s. c. 2 Show. 313 ; Bell v. Stone, 1 B. & P. 331. ^ Boogher v. Knapp, 76 Mo. 457 ; Dwyer v. Firemen's Journal, 11 Da- ly, 248 ; Ryer v. Firemen's Journal, 11 Daly, 251 ; Wilson v. Noonan, 35 Wis. 321 ; Simmons v. Holster, 13 Minn. 249 ; Manner v. Simpson, 13 Daly, 156 ; Mallory ». Pioneer Press, 34 Minn. 521 ; Jones v. Townsend, 21 Fla. 431. * Pratt V. Pioneer Press, 35 Minn. 251. » Young V. Clegg, 93 Ind. 371 ; Lud- wig V. Cramer, 53 Wis. 193 ; Atkinson V. Detroit Free Press, 46 Mich. 341. * Gribble v. Pioneer Press, 34 Minn. 342. 6 Ante, § 255 ; White v. Nicholls, 8 How. U. S. 266, 285, 286. « Cooley Torts, 205. ' Referring to WiQiams v. Karnes, 4 Humph. 9 ; Cropp v. Tilney, 3 Salk. 225 ; J' Anson v. Stuart, 1 T. R. 748. See Whitney «. JanesviUe Gazette, 5 Bis. 830. ' Referring to Price v. Whitely, 50 CHAP. XVI.] SLANDER AND LIBEL. § 284 publish of a man in writing that he had the itch and smelt of brimstone, has been held to be a libel," ^ yet it would not be actionable to say the same thing of him orally .^ Again, to charge, in a published writing, one with ingratitude is an actionable libel,* but plainly the same words uttered orally would not sustain a suit. In like manner, — § 283. Dishonesty. — Any written malicious charge of dis- honesty is a libel, whether the oral uttering of the same words would be actionable or not ; * as, that a particular druggist sells counterfeit Haarlem oil and puts it in counterfeit wrap- pers,^ or that a person named is a " hoary-headed filcher,"* or an " infernal yillain ; " ^ or that a particular newspaper pub- lisher is a party to a secret conclave, wherein for money he sold to a corporation the advocacy of his paper.* But the mere written accusation of something assumed to be morally dishonest while it accords with the law is not libellous ; ^ as, that the person, in answer to a suit, set up the Statute of Limitations,!® or the prohibitory liquor law.^ § 284. Special Damage. — A libel which the courts deem not sufficiently intense in ey'il,^ or not directly enough dam- aging, to be actionable per ae^^ may still sustain a suit if it has in fact done the party damage, and the same is alleged and proved, according to the explanations given under the head of oral slander.!^ An instance of what is sometimes called libel, but is more accurately termed slander of title, to be Mo. 439. See Atwill v. Mackintosh, » Crocker v. Hadley, 102 Ind. 416. 120 Mass. 177 ; Gary v. Allen, 39 Wis. ^ Bell v. Stone, 1 B. & P. 331. 481. * Fitch V. De Young, 66 Cal. 339. » Referring to Villers x). Monsley, 2 ' Stone v. Cooper, 2 Denio, 293, 301; Wils. 403. Greville v. Chapman, 5 Q. B. 731. * White V. NichoUs, sapra. And i" Bennett v. Williamson, 4 Sandf. see ante, § 269. 60. s Cox V. Lee, Law Eep. 4 Ex. 284. " Homer u. Engelhardt, 117 Mass. * Huse V. Inter-ocean Pnhlishing 539. Co. 12 Bradw. 627 ; MUler v. Butler, 6 " Ante, § 35, 36, 258. Cush. 71, 75 ; Sanderson v. Caldwell, " Ante, § 254 ; Legg v. Dunleavy, 45 K. Y. 398, 402 ; Digby v. Thomp- 80 Mo. 558 ; Delegall v. Highley, 8 son, 4 B. & Ad. 821, 826 ; Shelton v. Car. & F. 444. Nance, 7 B. Monr. 128 ; Donaghue ». " Ante, § 278, 274 ; Stone r. Cooper, GaSy, 53 Conn. 43 ; Stone v. Cooper, 2 2 Denio, 293, 299, 300 ; Bergmann ti. Denio, 293, 300. Jones, 94 N. Y. 51. s Steketee v. Kimm, 48 Mich. 322. 119 § 286 WRONGS WITH PARTICULAfe NAMES. [BOOK III. treated of in a chapter further on,i occurs where the writing is disparaging, not of the person, but of his property, and then special damage must always be alleged and proved.^ § 285. Contempt and Ridicule — Blackening Reputation. — An indictable libel on an individual is any " representation of a nature to blacken his reputation, or to hold him up to con- tempt and ridicule." ^ The public mischief, by reason of which it is classed as a crime, lies in its tendency to stir up bad blood, leading to breaches of the peace. Since, in such a case, the individual libelled suffers specially, not only may the pub- lic prosecute the crime, but he may have his civil action for the private wrong.* Thus, as holding up a man to contempt and ridicule, it is actionable as well as indictable to state in writing of him that he " has turned into an enormous swine, which lives on lame horses," and "will probably remain a swine the rest of his days ; " ^ or, that he has put himself into unlawful relations with the wives of other men ; ^ or, being a railroad passenger agent, that he has grown rich by making local ticket agents divide their commissions with him.'^ Yet it is not a libel simply to charge one with something which the writer deems reprehensible, while the law holds it not to be wrong ; ^ as, getting a lease of premises which another was occupying as tenant at will.^ The illustrations of this sort of libel are innumerable, but they will best be seen in the books on the criminal law and in the digests. § 286. Published. — The rules of the criminal law as to publishing a libel ^^ do not apply to the civil suit. There must i Post, § 344 et seq. toad," Villers v. Monsley, 2 Wils. 403 ; 2 Dooling i>. Budget Pub. Co. 144 "a black sheep," McGregor ». Gregory, Mass. 258 ; Jenner v. A'Beckett, Law 11 M. & W. 287. Kep. 7 Q. B. 11. 8 Broad v. Deuster, 8 Bis. 265. * 8 2 Bishop Crim. Law, § 929. ' Shattuo v. McArthur, 25 Fed. Rep. * Ante, § 279 ; AtwiU v. Mackin- 133, 29 lb. 136. tosh, 120 Mass. 177 ; MUler v. Butler, * Trimble v. Anderson, 79 Ala. 514 ; 6 Cush. 71 ; McMurry v. Martin, 26 'Wallace v. Bennett, 1 Abb. N. Cas. Mo. Ap. 437 ; Bettner v. Holt, 70 Cal. , 478 ; Achom v. Piper, 66 Iowa, 694. 270. ' Donaghue v. GaflFy, 54 Conn. 257. ^ Solverson ». Peterson, 64 Wis. And see Payne ^ v. Western, &o. Bid. 18 198. Illustrations mentioned in this Lea, 507. case are "a frozen snake," Hoare v. Sil- ^^ 2 Bishop Crim. Law, § 926, 927. verlock, 12 Q. B. 624; "an itchy old 120 CHAP. XVI.] SLANDER AND UBEL. § 288 be the same publication as in oral slander, and for the same reason.^ For example, though it is indictable to write a libel and send it by mail sealed to the person libelled, it is not actionable.* Every sale of a libel is a fresh publication,^ or the number of copies sold may be shown to enhance the dam- ages.* If the libel is in German, it is not a publication sim- ply to deliver it to one who does not understand the language.^ And in England it has been held not to be a publication for one to hand over the libel to his wife ; the two being, as to this question, one person.^ rV. The .Justifications arid Defences. § 287. vrhat. — There are four justifications and defences : First, That the words are true ; Secondly, That the person in- jured by them is not in a condition to complain ; Thirdly, That they are absolutely privileged ; Fourthly, That they are condi- tionally privileged. The effect of which several defences is, that the person injured is without redress, so that he bears alone and uncompensated the suffering or loss as a common accident of life, explained in a preceding chapter.^ We shall close this sub-title by inquiring, Fifthly, How the several ques- tions are to be determined. § 288. First. That the Words are true: — General. — The perplexities which at different periods have embarrassed the attempt to justify libels by showing their truth, relate to the criminal prosecution, not the civil. To an action for words, whether oral or printed, it was always and ' Ante, § 276. and one's lepntatdon is not injured by a ! Spaits 0. Foondstone, 87 Ind. 522, writing which is pnt into the hands of referring to Barrow v. Lewellin, Hob. no third person. 62 a} Lyle v. Clason, 1 Caines, 581 ; * Staub f. Van Benthnysen, 36 La. Fonville v. McNease, Dudley, S. C. 303 ; An. 467. Delacroix v. Thevenot, 2 Stark. 63. * Bigelow v. Spragne, 140 Mass. 425. The reason of the distinction is, that a ^ Mielenz t'. Qoasdorf, 68 Iowa, 726 ; libel is indictable because of its tending ante, § 24. to s breach of the peace, which is as ^ Wennhak v. Morgan, 20 Q. B. D. great if sent directly to the peison li- 635, 637. And see Campbell v. Ban- belled as to a third person ; it is action- nister, 79 Ky. 205. able because injorious to the reputation, ' Ante, § 176-184. 121 § 291 WRONGS WITH PARTICULAR NAMES. [BOOK III. is a sufficient answer that they are true.^ But the truth must be absolute ; ^ it only mitigates the damages to prove that the defendant believed them to be true.* An apparent exception to this doctrine is — § 289. Pardon — is, in legal contemplation, a remission of guilt, not merely of the punishment.* Therefore it is libel or slander to accuse one of an offence whereof he has been par- doned, the defence of the truth not being available.^ § 290. Secondly. That the Person injured by the Words is not in a Condition to complain : — General. — The doctrine, applicable to all torts, that one to maintain his suit must have suffered an injury to which he did not consent, and must be otherwise meritorious in respect of that whereof he complains, is stated in a preceding chapter.^ So much of that doctrine as in its nature is applicable to libel and slander governs the subject for consideration here. Thus, — § 291. Consent (Asking). — If one, directly or through an agent, asks of another a question concerning himself, he there- by impliedly licenses the other to answer according to his own understanding of the truth, but not otherwise. Then, should the answer be a libel or slander, the person uttering it is justi- fied or not, according as his purpose is honest or malicious.^ 1 1 Bishop Crim. Law, § 591 ; 2 lb. » Wozelka v. Hettriek, 93 N. C. 10 ; § 918; Underwood ». Parks, 2 Stra. Dolevin v. Wilder, 7 Rob. N. Y. 819; 1200 ; Haws v. Stanford, 4 Sueed, Tenn. Cass v. New Orleans Times, 27 La. An. 520 ; Foss v. Hildreth, 10 Allen, 76, 214 ; Quinn v. Scott, 22 Minn. 466 ; 79 ; Mundy v. Wight, 26 Kan. 173 ; Morris v. Lachman, 68 Cal. 109 ; Trim- Jones V. Bewicke, Law Eep. 5 C. P. 32 ; hie v. Foster, 87 Mo. 49. Thrall v. SmUey, 9 Cal. 529 ; Donaghue * 1 Bishop Grim. Law, § 898 and V. GaflFy, 63 Conn. 43 ; Root v. King, 7 note. C!ow. 613, 618, 628 ; Perry ^. Breed, <• lb. ; Cuddington v. Wilkins, Hob. 117 Mass. 155, 166 ; Bisbey v. Shaw, 2 81 6 ; Searle v. WUUams, Hob. 288 ; Keman, 67 ; Burckhalter ■». Coward, Leyman v. Latimer, 3 Ex D. 1,5, 352, 16 S. C. 436 ; Mitchell v. MilhoUand, 13 Cox C. C. 632, 14 Cox C. C. 51. 106 111. 175 ; Riley ». Norton, 66 Iowa, Conti'a, Baiun ». Clause, 5 Hill, N. Y. 806 ; Bell v. McGinness, 40 Ohio State, 196. 204. 6 Ante, § 49-65. 2 Brooks V. Bemiss, 8 Johns. 455, ' Beeler f. Jackson, 64 Md. 589, 468 ; O'Brien v. Bryant, 16 M. & W. 593 ; Brow v. Hathaway, 18 Allen, 239 ; 168 ; Swann v. Rary, 3 Blaekf. 298 ; Spaits ». Poundstone, 87 Ind. 522, 526 ; Corbley v. Wilson, 71 111. 209 ; Greg- Warr v. Jolly, 6 Car. & P. 497 ; Grif- ory V. Atkins, 42 Vt. 237 ; Williams «. fiths v. Lewis, 7 Q. B. 61, 67 ; Hop- Gunnels, 66 Ga. 521. wood v. Thorn, 8 C. B. 298, 14 Jur. 122. CHAP. XVI.] SLANDER AND LIBKL. § 295 And within this doctrine, if one seeking material for a libel suit gets his friend to write a letter of inquiry, he cannot found his action upon the reply.^ § 292. Provoked. — A slander will not justify a slander in return. Nor will it even mitigate the damages to show that, on a previous occasion, the plaintiff published equally injuri- ous words of the defendant ; ^ on the same occasion, it will.^ So,— § 293. ni Repute. — One's ill conduct * or ill repute does not authorize another to aggravate the fact by charging him with what he cannqt prove.^ But in proper circumstances matter of this sort may be brought forward in mitigation of damages.^ § 294. Unlawful Business. — Unlike a prior wrong or provo- cation, set up in answer to a slander, is an unlawful business concerning which the evil words were spoken. Within the principle that one cannot have the law's protection in violating law,^ he cannot complain of a slander upon him in respect of an unlawful occupation ; ^ as, for example, a libel upon him in his vocation of the unlicensed selling of intoxicating liquor contrary to a statute.^ § 295. Tliirdly. That the Words are aigolutely Priv- ileged : — General. — The doctrine that one who follows a command or permission of the law is not liable to another casually in- 87. See Sullings v. Shakespeare, 46 Youug ». Bennett, 4 Scam. 43 ; Wol- Mich. 408. cott v. Hall, 6 Mass. 514 ; Alderman v. 1 King V. Waring, 5 Esp. 13. See French, 1 Pick. 1 ; Henson v. Veatch, Weatherston e. Hawkins, 1 T. R. 110, 1 Blackf. 369 ; Shilling v. Carson, 27 112 ; Smith v. Wood, 3 Camp. 323. Md. 175 ; Nelson v. Evans, 1 Dev. 9 ; 2 Bourland v. Eidson, 8 Grat. 27 ; Wetherbee v. Marsh, 20 N. H. 561. Child i>. Homer, 13 Pick. 503. But see Mapes v. Weeks, 4 Wend. 659 ; » McClintock v. Crick, 4 Iowa, 453 ; Scott u. McEinnish, 15 Ala. 662 ; In- Moore v. Clay, 24 Ala. 235 ; Powers v. man v. Foster, 8 Wend. 602 ; Treat v. Presgroves, 38 Missis. 227 ; Steever v. Browning, 4 Conn. 408. Beehler, 1 Miles, 146 ; Goodhread v. 1 Ante, § 54 et seq. Ledbetter, 1 Dev. & B. 12. 8 Hunt v. Bell, 1 Bing. 1 ; Manning * Parkhurst v. Eetchum, 6 Allen, v. Clement, 7 Biug. 362 ; Fry v. Ben- 406. nett, 3 Bosw. 200. 6 Graham t>. Stone, 6 How. Pr. 15 ; » Wilbor v. Williams, 8 Bost. Law Coles. Perry, 8 Cow. 214. Reporter, 439. « Pope V. Welsh, 18 Ala. 631 ; 123 § 298 WRONGS WITH PAETICULAB NAMES. [BOOK III. jured thereby,' furnishes a wide protection to defendants in libel and slander. But this principle covers, in general, only honest and careful utterances.^ And he who steps outside of or beyond the law's command or permission, cannot, on the forbidden ground, have the shelter thus provided for the obe- dient.^ It is the policy of the law to furnish in some things a specially high protection, termed absolute, in contrast to its ordinary conditional protection. Thus, — § 296. The Judge — of any of the higher courts is, in the trial of a cause, exempt from any suit for words spoken, how- ever irrelevant or malicious. And this rule applies in a gen- eral way to the inferior judges and magistrates acting within their jurisdiction, though perhaps it does not protect them as to irrelevant words maliciously uttered. For the public good, not as a screen to the individual incumbent of the bench, the judicial functions are left thus free and untrammelled.* § 297. Juror. — A juror is thus absolutely privileged, as to any words, however irrelevant, uttered while the jury are re- tired deliberating on their verdict.* The protection of jurors is very high,* and it is believed that this principle covers all their acts in any cause civil or criminal.^ § 298. "Witness. — The same high protection is accorded to a witness answering any questions, relevant or irrelevant, pro- pounded to him by either party in a judicial investigation ; « and it is so even though he is stopped before he has fully ex- plained his answer, and he completes the explanation after being forbidden by the court.? For words not responsive to 1 Ante, § 111. 6 Bushell's Case, Vaugh. 135, 146- » Ante, § 114 et seq. 149. ' Ante, § 116. ' ' Kex v. Skinner, Lofft, 55, 56 ; * Floyd V. Barker, 12 Co. 23 ; Yates Turpen »; Booth, 56 Cal. 65. V. Lansing, 9 Johns. 395 ; Scott v. » Terry v. Fellows, 21 La. An. 375 ; Stansfield, Law Eep. 3 Ex. 220 ; Rex v. Nelson v. Kobe, 6 Blackf. 204 j Smith v- Skinner, Lofft, 55, 56 ; Eendillon «. Higgins, 16 Gray, 251 ; Barnes v. Mc- Maltby, 2 Moody & R. 438 ; Thomas Crate, 32 Maine, 442 ; Calkins v. Snm- V. Ohurton, 2 B. & S. 475 ; Bradley v. ner, 13 "Wis. 193. And see "Verner v. Fisher, 13 WaL 335 ; Seaman v. Neth- Vemer, 64 Missis. 321 ; Marsh v. Ells- erclift, 1 C. P. D. 540, 544. See Mc- worth, 50 N. Y. 309. Dermott v. Evening Journal, 14 "Vroom, ■ » Seaman v. Netherclift, 1 C. P. D. 488. 540 J s. c. on appeal, 2 C. P. D. 63. B Dunham v. Powers, 42 "Vt. 1. 124 CHAP. XVI.] SLANDER AND LIBEL. § 300 questions, and not material to the matter in controversy, he is liable only if they are both slanderous and malicious.^ Such is, at least, the settled English doctrine ; but we have American cases which refuse to the witness protection as to words both malicious and irrelevant, perhaps even malicious only, though given in the course of his examination.^ Cer- tainly the freedom and fairness of a trial are not promoted by a rule which puts the witness in fear ' of being sued by the party against whom he testifies, — in reason, the same rule applying to him as to the judge on the bench. § 299. AfBdavit. — ;.An aflBdavit in a cause has the high pro- tection we are considering,^ — subject, perhaps, to exception where it maliciously introduces irrelevant matter.* § 300. Party — Counsel. — The utterances of a party, in his pleadings and in the trial of a cause, are also within this pro- tection.^ So also are those of his counsel,^ if pertinent to the issue,^ not otherwise.* In the respect last mentioned, the lia- bility of counsel differs from that of the judge, as well by English opinion as by American ; " for," said Coleridge, C. J., " it has never yet been decided that they would not be subject to an action for words spoken even during the conduct of a case, if the words were irrelevant, mcda fide, and spoken with express malice." ^ 1 Smith V. Howard, 28 Iowa, 51 ; ley v. Yonnge, 2 Bur. 807 ; Badgley v. Ayres v. Sedgwick, Palmer, 142. Hedges, 1 Penning. 233. But he is not 2 Not undertaking to go into this always thus protected as to foreign mat- subject deeply, 1 will here refer to Rice ter. Wyatt v. Buell, 47 Cal. 624. V. Coolidge, 121 Mass. 393, 395 ; Hoar ^ Marsh v. Ellsworth, 50 N. Y. 309 ; V. Wood, 3 Met. 193 ; McLaughlin v. Bex v. Skinner, LoSt, 55 ; Strauss v. Cowley, 127 Mass. 816 ; "White v. Car- Meyer, 48 111. 385 ; Dada v. Piper, 41 toU, 42 N. Y. 161 ; Storey v. WaUace, Hun, 254 ; Hollis v. Meux, 69 Cal. 625. 60 111. 61 : Marsh v. Ellsworth, 50 N. Y. ' Hodgson •«. Scarlett, 1 B. & Aid. 809 ; Liles v. Gaster, 42 Ohio State, 681. 232 ; Hoar v. Wood, 3 Met. 193 ; Hast- * Eyres v. Sedgewicke, Cro. Jac. 601; ings ». Lusk, 22 Wend. 410. Bevis V. Smith, 18 C. B. 126, 2 Jur. ' Brook v. Montague, Cro. Jac. 90 ; N. s. 614 ; Henderson v. Broomhead, 4 Gilbert v. People, 1 Denio, 41 ; Warner H. & N. 569 ; Dawling v. Venman, 3 v. Paine, 2 Sandf. 195 ; Ring v. Wheeler, Mod. 108 ; Stevens v. Sampson, 5 Ex. 7 Cow. 725 ; McLaughlin v. Cowley, D. 53, 55 ; FrancLi v. Wood, 75 Ga. 648. 131 Mass. 70 ; Lester v. Thurmond, 51 * Eeid V. McLendon, 44 Ga. 156 ; Ga. 118, Powell r. Kane, 5 Paige, 265. And see ' Seaman v. Netherclift, 1 C. P. D. cases cited to the last section. 540, 545. * Garr v. Selden, 4 Comst. 91 ; Ast- 125 § 303 WRONGS WITH PARTICULAB NAMES. [BOOK m. § 301. Other Cases. — There are other cases of absolute or semi-absolute privilege ; such as petitions to the legislature or a legislative committee,^ words spoken in a legislative debate,* the testimony of a witness before a military court of inquiry ;8 but space will not permit the prolonging of this subject. Some courts have expressed the inclination, in the words of Lord Coleridge, C. J., not "to extend the bounds" of this high privilege.* § 302. Fourthly. That the Words are conditionally priv- ileged : — Defined. — Referring back to a preceding section,^ we may add, as the doctrine here to be considered, that, whenever the law,^ or any social duty which the law recognizes,^ per- mits or requires an utterance not thus privileged absolutely, it is conditionally so, — that is, if cautiously and circum- spectly made, so as not to inflict needless injury,* in other words if it is honest and without malice, — otherwise it is not protected.^ In the application of this doctrine, let us first consider — § 303. The Protecting Occasion. — Though the facts which give the protection do not exist, still, if " there is a reasonable belief on the part of the person making the communication " that they do, they will ou principle, and probably on the au- thorities, render the occasion privileged the same as they would were their existence real.^" For the mistake was in- 1 Lake v. King, 1 Saund. Wms. ed. Walter, Law Rep. 4 Q. B. 73 ; Flsk v. 131 J. Soniat, 33 La. An. 1400 ; 2 Coffin V. Coffin, 4 Mass. 1 ; Dim- Garrett, 1 Am. Pa. 404 ; Kirkpatrick ham V. Powers, 42 Vt. 1. v. Eagle Lodge, 26 Kan. 384 ; Billings ' Dawkins «. Rokehy, Law Rep. 8 o. Fairbanks, 139 Mass. 66 ; Shurtleff Q. B. 255, afiarmed Law Rep. 7 H. L. «. Parker, 130 Mass. 293 ; Miner o. De- 744. troit Post, &e. Co. 49 Mich. 358 ; Mac- 4 Stevens v. Sampson, 5 Ex. D. 53, lean v. Scripps, 52 Mich. 214 ; Wieman 55. V. Mabee, 45 Mich. 484 ; Saunders v. 6 Ante, § 295. Baxter, 6 Heisk. 369 ; Alpin i>. Morton, 6 Ante, § 110 et seq. 21 Ohio State, 536 ; Fitzgerald v. Rob- ' Ante, § 122 et seq. inson, 112 Mass. 371 ; Servatius v. 8 Ante, § 115. Pichel, 34 Wis. 292. » Moore v. Butler, 48 N. H. 161 ; i« Whiteley v. Adams, 15 C. B. N. 8. Byam v. Collins, 39 Hun, 204 ; Marks 392, 10 Jnr. N. s. 470, 472 ; Billings v. V. Baker, 28 Minn. 162 ; Wason v. Fairbanks, 139 Mass. 66. 126 CHAP. XVI.J SLANDER AKD LIBEL. §304 evitable, therefore the person suffering from it must bear the consequence as one of the common accidents of life.^ There- upon, looking at the circumstances from the standpoint of the party speaking, his duty to make the communication need not, in order to protect him, be one " which may be enforced by indictment, action, or mandemius ; " but " morsd and social duties of imperfect obligation " will suffice. So will the party's own interests ; for every one owes it to himself to look after them.^ The circumstances, therefore, which make an oc- casion privileged are diverse and innumerable.* It would be useless to attempt to enumerate all, but the following are — § 304. Hlostzations. — A letter written by a man to his wife's mother, cautioning her a^nst one whom she contem- plated marrying, was in an English jury case ruled by Alder- son, B., to be privileged.* But a like letter, written to a girl by her friend and former pastor under like circumstances, was in Massachusetts adjudged not to be privileged ; for he was not of kin to her, and he had no interest in her welfare.^ » Ante, § 156, 176-184. 2 Harrison v. Bush, 5 Ellis & B. 344, 848, 349 ; Cockayne v. Hodgkisson, 5 Car. & P. 543 ; Somerville v. Hawkins, 10 C. B. 583, 15 Jut. 450 ; Coxhead v. Richards, 2 C. B. 569 ; Moore v. But- ler, 48 N. H. 161 ; Clapp v. DeTlin, 35 N. Y. Super. 170. " One of the eomnion forms of stating the principle is: "A communication made bona ficU, upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty to perform, is privil^ed, if made to a person having a correspond- ing interest or dnty, although it con- tains defamatory matter, which without such privil^e would be libellous and actionable." Joannes v. Bennett, 5 Al- len, 169, 170, taken from Harrison v. Bush, supra, and the rules recognized in Gassett v. Gilbert, 6 Gray, 94, and the cases there cited. Bigelow, C. J. observes that " It would be difficult to state the result of judicial decisions on this subject, and of the principles on which they rest, in a more concise, ac- curate, and intelligible form." « Todd V. Hawkins, 8 Car. &. P. 88. * Joannes v. Bennett, 5 Allen, 169. There was in this case, unnoticed by the court in its opinion, a fact which should have led to the opposite decision. The letter was written at the earnest so- licitation of the girl's father and mother, and its contents were simply what they requested. In effect, therefore, he was but their amanuensis, at the utmost their -agent ; and their justification, which could not be questioned, was his. In the New York case of Byam v. Col- lins, 39 Hun, 204, the writer of a letter under similar circumstances was the in- timate lady friend of the girl, and it was held not to be privileged. The privilege, said Bradley, J. "is afforded by the ties of consanguinity or kindred, and may arise out of other and various relations of interest, or which suggest dnty to furnish information in respect 127 305 WEONGS WITH PABTICULAE NAMES. [BOOK HI. These are instances of a party speaking unmoved by the per- son to whom he speaks. His being thus moved will in some circumstances create a privilege not otherwise existing ; as, where one answers an application for the character of a servant, made by another who contemplates employing him, already explained.^ § 305. other niustratioas — are reports of legislative de- bates and proceedings, and comments thereon ; ^ statements regarding the fitness of candidates for public oflBce^ or for public school teaching,* made properly and to proper persons ; under due limitations, reports of judicial proceedings ; * com- munications by a mercantile agency to its patrons^ having an interest in the information ; ^ relevant communications in church discipline,* and in the discipline of other voluntary associations,^ made within the rules governing the particular church or association ; and, in general, properly conducted discussions, within just limits, of persons and things affecting the public interests, wherein also those speaking have inter- ests of their own.^" to the conduct and charactei of an- other." p. 206. See further as to the principle, ShurtlefiF v. Parker, 130 Mass. 293 ; Noonau v. Orton, 32 Wis. 106 ; Atwill V. Mackintosh, 120 Mass. 177. 1 Ante, § 127. Where the represen- tation is voluntaiy, and the question of employing the servant is not depending, there is no protection. Over v. iSchif- fling, 102 Ind. 191. But the master of a discharged servant may, unsolicited, give such public notice as may be rea- sonable for the protection of his own interests ; as, for example, against the collection of bills by such former ser- vant. Hatch V. Lane, IDS Mass. 394. See, further, Wennhak v. Morgan, 20 Q. B. D. 635. " Wason B. Walter, Law Rejf. 4 Q. B. 73 ; Davis v. Shepstone, 11 Ap. Cas, 187. » 2 Bishop Crim. Law, § 937 ; Briggs •B. Garrett, 1 Am. Pa. 404 ; Express Printing Co. v. Copeland, 64 Texas, 354 ; Bays v. Hunt, 60 Iowa, 251. 128 * Wieman ». Mabee, 45 Mich. 484. 6 2 Bishop Crim. Law, § 915 ; Bath- rick V. Detroit Post, &c. Co. 50 Mich. 629 ; Saunders ». Baxter, 6 Heisk. 369 ; Macdougall v. Knight, 17 Q. B. D. 636 ; Cowley V. Pulsifer, 137 Mass. 392. 6 Newbold v. Bradstreet, 57 Md. 38 ; Erber v. Dun, 4 McCrary, 160 ; Trus- sell V. Scarlett, 18 Fed. Rep. 214 ; Locke V. Bradstreet, 22 Fed. Rep. 771. ' Sunderlin v. Bradstr«et, 46 N. Y. 188. * York V. Johnson, 116 Mass. 482 ; Famsworth v. Storrs, 5 Cush. 412 ; Over V. Hildebrand, 92 Ind. 19 ; Landis V. Campbell, 79 Mo. 433, 437-440; Fitzgerald v. Robinson, 112 Mass. 371 ; Servatius v. Pichel, 34 Wis. 292. 9 Kirkpatrick v. Eagle Lodge, 26 Kan. 384 ; Dawkins t>. Antrobus, 17 Ch. D. 615. 10 Palmer v. Concord, 48 N. H. 211 ; Snyder v. Fulton, 34 Md. 128 ; Marks V. Baker, 28 Minn. 162 ; Neeb b. Hope, 1 Am. Pa. 145 ; Wilson v. Noonan, 23 CHAP. XVI.] SLANDER AND LIBEL. § 308 §306. Limit of Protection — Malice. — As already seen,^ the protection does not cover a libel or slander not made in good faith, but of actual malice.^ Any libellous or slander- ous woi'ds, if not legally justifiable, are in our law language termed malicious ; but the malice is then distinguished as malice in law, not in fact. Therefore, to sustain a suit, it need not be proved ; ^ though, in the absence of proof of malice, only compensatory damages * can be recovered. But actual malice may be shown, if it exists, and thereupon the jury will be authorized to give punitive or exemplary damages.^ Such is the ordinary case, where there is no privilege. On the other hand, to sustain a suit where privilege is set up in defence, the plaintiff may and must, in rebuttal of it, prove malice in fact. Malice in law will not suffice, but malice in fact will overthrow the privilege.® § 307. Fifthly. How the several Questions are to be de- termined : — To render More Distinct — the elucidations of this chapter, something will be said under the present head, but the pro- cedure is not for this volume. § 808. Court or Jury. — The reader will find help from a section in the chapter on Malicious Prosecution.^ As to Slan- der and Libel, the matter is a little confused in the books, but Wis. 105 ; Hetherington v. Sterry, 28 * Fry «. Bennett, 4 Duer, 247 ; Flint Kan. 426 ; Fisk v. Soniat, 33 La. An. v. Clark, 13 Conn. 361. 1400 ; Smith o. Hi^ns, 16 Gray, 251 ; » Philadelphia, &c Eld. v. Quigley, Belo V. Wren, 63 Texas, 686 ; AUner v. 21 How. U. S. 202, 213, 214 ; Lanius Detroit Post, &c. Co. 49 Mich. 358 ; i>. Druggist Pub. Co. 20 Mo. Ap. 12 ; Terry v. Fellows, 21 La. An. 375 ; Wil- Bergmann v. Jones, 94 N. Y. 51 ; Kin- son V. Fitch, 41 Cal. 363 ; Klinck v. ney v. Hosea, 3 Hairing. DeL 397 ; Gil- Colby, 46 N. Y. 427. reath v. AUen, 10 Ire. 67. ' Ante, § 302. * Cases cited in the two preceding » Ante, § 257. notes ; Clark v. Molynenx, 3 Q. B. D. ' Lick V. Owen, 47 Cal. 252 ; Neeb 237 ; Simpson u. Eobinson, 12 Q. B. V. Hope, 1 Am. Pa. 145, 152 ; Maclean 511 ; Atwill o. Mackintosh, 120 Mass. V. Scripps, 52 Mich. 214 ; Whitney v. 177, 183 ; Laaghton v. Bishop of Sodor Janesville Gazette, 5 Bis. 330 ; Zucker- and Man, Law Eep. 4 P. C. 495, 505 ; man v. Sonnenschein, 62 111. 115 ; Wil- Hart v. Gnmpach, Law Eep. 4 P. C. son V. Noonan, 35 Wis. 321 ; Shipp v. 439 ; Fowles v. Bowen, 30 N. Y. Story, 68 Ga. 47 : Farley v. Ranck, S 20 ; Marks v. Baker, 28 Minn. 162 ; Watts & S. 554 ; Shelton v. Simmons, Mielenz v. Qnasdorf, 68 Iowa, 726. 12 Ala. 466 ; Oarlock v. Spencer, 2 ^ Ante, § 240. Eng. 12. 9 129 § 309 WRONGS WITH PAETICULAE NAMES. [BOOK III. the following is believed to be the true doctrine. When the words and their accompanying facts are admitted, — as, for example, when the plaintiff's declaration is demurred to,^ or there is a motion in arrest of judgment,^ — the question whether or not they are actionable is purely for the court.^ Practically, in the trial of a cause, questions of fact on which the jury must necessarily pass blend with those of pure law ; whereupon the judge tells them what the law is, as applied to each of the several contentions on the one side and on the other, and they find their verdict in view of the whole.* Still some courts assimilate these civil cases to the criminal ones for libel, and do not say directly whether or not the words alleged are actionable, but define what the law requires and leave it to the jury to apply the definition to the case.^ Other courts say directly whether or not the words, supposing the plaintiff to have given them in his declaration their true meaning, are actionable.® As to the — § 309. Meaning. — Though strictly the construction of words, whether oral or written, is for the court,^ one using them is responsible for their defamatory effect, either accord- ing to what he meant, or according to what the hearers under- stood him to mean, as already explained.* Therefore evidence is admissible of how they were understood,® and the jury may pass upon the meaning.^" 1 Blunt V. Zuntz, Anthon, 246 ; ' More v. Bennett, 48 N. Y. 472. Abrams v. Smith, 8 Blackf. 95 ; Edds 8 Ante, § 277 ; "Wieman v. Mabee, V. Waters, 4 Crauch C. C. 170. 45 Mich. 484. 2 Demarest v. Haring, 6 Cow. 76. » Knapp v. Fuller, 55 Vt. 311 ; De ' Boyd V. Brent, 3 Brev. 241 ; Blagg Armond v. Armstrong, 37 Ind. 35 ; Mc- V. Sturt, 10 Q. B. 899 ; Neeb v. Hope, Lauglilin v. Russell, 17 Ohio, 475 ; 1 Am. Pa. 145 ; Purdy v. Rochester Morgan v. Livingston, 2 Rich. 573. Printing Co. 96 N. Y. 372 ; "White v. As to the limitation, see Van Vechten Carroll, 42 N. Y. 161 ; Stace v. Griffith, v. Hopkins, 5 Johns. 211. Law Rep. 2 P. C. 420; Donaghue u. w DoUoway ». Turrill, 26 Wend; 383 ; Gaffy, 54 Conn. 257. Watson v. Nicholas, 6 Humph. 174; * Taylor v. Robinson, 29 Maine, 323 ; Smith v. Miles, 15 Vt. 245 ; Usher v. Parmiter v. Coupland, 6 M. & W. 105 ; Severance, 20 Maine, 9 ; Jones v. Riv- Cooke V. Wildes, 5 Ellis & B. 328. ers, 3 Brev. 95 ; Thompson v. Grimes, 5 Parmiter v. Coupland, supra ; Bay- 5 Ind. 385 ; Cregier v. Bnnton, 2 Rich, lis V. Lawrence, 11 A. & E. 920. 395 ; Fray v. Fray, 17 C. B. N. s. 603, ' Pittock V. O'Niell, 13 Smith, Pa. 10 Jur. N. s. 1153. 253. 130 CHAP. XVI.] SLANDER AND LIBEL. § 311 § 310. Proof of Damage. — Equally in libel as in slander,^ if, in a case where neither special damage nor actual malice is relied upon, the plaintiff proves the defamation and no more, his action is not thrown out of court, but the jury may give him what they think he deserves.^ Practically there is in most cases evidence in aggravation or mitigation of damages.* § 811. The Doctrine of this Chapter restated. Words are a power in social life, and he who employs this power to the injury of another should respond in damages. Upon this fundamental principle the law of slander and libel rests. Under judicial hands it has been moulded into a form adapted to practical needs and use. The semi-technical law thus created consists chiefly in various distinctions resting partly on abstract reason, partly in usage, and partly on what is convenient in litigation. The leading distinctions are, that defamatory words are more damaging when writ- ten than when uttered orally, so that a higher degree of oral defamation than of written is required to sustain an action ; that, when a certain degree of defamation is shown, the law presumes damage, and it need not be proved, but, on a less degree appearing, there must be proof of some par- ticular damage ; that one who uses words in the discharge of his legal or social duties is not responsible though they de- fame another, if he speaks cautiously, so as not needlessly to injore, and is without malice ; but otherwise if he takes ad- vantage of the occasion to carry out an evil purpose ; and that, in determining what words are actionable and what are not, the law disregards the minuter and less important wrong, thus limiting its remedy to what is substantial in the combi- nation of wrong and injury without which there can be no action. The minuter distinctions need not be here repeated. 1 Ante, § 275. 87 Mo. 49. In other respects, Rearick 2 Sanderson v. Caldwell, 45 N. Y. v. Wacox, 81 111. 77 ; Knox o. Com- 398 ; Price v. Whitely, 50 Mo. 439. mercial Agency, 40 Hun, 508 ; Hast- ' For example, as to wealth, Rea v. ings v. Stetson, 130 Mass. 76 ; Sowers Harrington, 58 Vt. 181 ; Bnrckhalter v. Sowers, 87 N. C. 303. The snhject V. Coward, 16 S. C. 435 ; Barber v. Bar- is incidentally mentioned at Tarions ber, 33 Conn. 335 ; Trimble v. Foster, places thronghout this chapter. 131 § 314 WRONGS WITH PARTICULAR NAMES. [BOOK III. CHAPTER XVn. DECEIT. § 312. Introduction. 313-317. In General. 318-321. As to what Things. 322-332. On what Representation. 333-337. "What Believing and Acting on Kepresentation. 338-342. Nature of Damage. 343. Doctrine of Chapter restated. § 312. How Chapter aivided. — We shall consider, I. In General ; II. As to what Things ; III. On what Representa- tion ; IV. On what Believing and Acting upon the Repre- sentation ; V. The Nature of the Damage. I. In Creneral. § 813. Form of Action. — Trespass on the case — called, for short, case — is the ordinary common-law action for the wrong to be considered in this chapter. But in some circum- stances there may be a bill in equity ; and it is a common defence to actions at law upon those contracts which it has vitiated. There are also other actions, such as assumpsit, for the recovering back of money deceitfully obtained. But what we are chiefly to consider in this chapter is that fraud which at common law would sustain an action on the case, " when," as Comyns expresses it, " a man does any deceit to the dam- age of another." ^ § 314. The Principles — on which the doctrine of this chap- ter rests, are among those laid down in previous elucidations. The leading one is, that he who inflicts on another a legal 1 Com. Dig. Action upon the Case for a Deceit, A, 1. 132 CHAP. XVII.] DECEIT. § 316 injury purposely,^ and not in the lawful exercise of any right or duty, is liable in damages therefor .^ The injury here to be considered, like that of the last chapter, comes from the wrongful communicating of an idea. The doctrine is that — § 315. Defined. — He who, either by express words, or by their equivalent in implication, conduct, or presumption, fraudulently® deceives another into doing anything to his legal damage must, whether having an interest in the matter or having received a consideration connected with it or not, make good the loss.* A leading element is the — § 316. Evil Intent, j— Communications between men are a necessity, there can be no social existence without them. So that, on principles explained in a preceding chapter,^ when- ever one honestly and circumspectly makes a statement to another who acts thereon, he is without responsibility should harm, which he did not mean, follow ; it is one of the com- mon and inevitable accidents of life. Therefore the essence of the wrong now to be considered consists in an evil intent, or conscious falsity ; ^ which, in this sort of case, ordinarily implies either a knowledge that the facts are not as represented, or a want of knowledge that they are.'' But it is not neces- sary that the intent should be to defraud the particular per- 1 Brooking v. Shinn, 25 Mo. Ap. 277. * Ante, § 155-185. 2 Ante, § 143. « Polhill v. Walter, 3 B. & Ad. 114, » Taylor 1). Ashton, H M. & W. 401, 123. Compare with Kuhl v. Jersey 415. City, 8 C. E. Green, 84. * Pasley v. Freeman, 3 T. R. 51, 64 ; ' Marshall v. Hubbard, 117 U. S. Barry v. Croskey, 2 Johns. & H. 1 ; 415 ; Ramsey v. Riley, 13 Ohio, 157 ; De May v. Eoberts, 46 Mich. 160 ; Hart Erie City Iron "Works v. Barber, 10 V. Tallmadge, 2 Day, 381 ; Ives v. Car- Out. Pa. 125 ; Cox v. Highley, 4 Out. ter, 24 Conn. 392 ; Benton v. Pratt, 2 Pa. 249 ; Arthur v. Wheeler, &e. Co. Wend. 385 ; Hubbard v. Briggs, 31 12 Mo. Ap. 335 ; Dunn v. White, 63 N. Y. 518; Nowlan •,. Cain, 3 Allen, Mo. 181; Taylor d. Leith, 26 Ohio State, 261 ; Green v. Bryant, 2 Kelly, 66 ; 428, 434 ; Dulaney v. Rogers, 64 Mo. Weatherford v. Fishback, 3 Scam. 170 ; 201 ; Stitt «. Little, 63 K. Y. 427 ; Eames v. Morgan, 37 111. 260 ; Shaeffer Shippen v. Bowen, 4 McCrary, 59 ; V. Sleade, 7 Blackf. 178 ; Oldham v. Young v. Covell, 8 Johns. 23 ; Cowley Bentley, 6 B. Monr.t428; McAIeer v. v. Dobbins, 136 Mass. 401 ; Taylor v. McMurray, 8 Smith, Pa. 126 ; White v. Ashton, 11 M. & W. 401, 415 ; Upton Merritt, 3 Selden, 352 ; Bean v. Her- v. Vail, 6 Johns. 181 ; Holmes v. Cald- rick, 3 Fairf. 262 ; LobdeU v. Baker, 1 well, 10 Rich. 311 ; Clement v. Cred- Met. 193. itors, 37 La. An. 692. 133 § 318 WRONGS WITH PAETICULAE NAMES. [BOOK III. son in fact injured.^ Nor need the primary purpose be to in- jure anybody ; it may, for example, be to benefit one's self by a good bargain,^ or to benefit another by procuring him credit,^ while the evil of the intent consists simply in a wil- lingness to secure the good through the infliction of a wrong. Still,— § 317. Things Combining. — The evil intent alone does not create liability ; another must have suffered, there must have been an act, it must have been the cause of the suffering, been of suflBcient magnitude, and sufficiently proximate thereto.* The required combination ^ of things has been variously ex- pressed; as, that the representations were untrue, were known to be untrue by the person making them, were calculated to induce the other to act upon them, and he did so act ; ^ or, that the party complained of made the representations, that they were false, were known by him to be so, were uttered with the intent to deceive the other into acting upon them, and that the other relied and acted on them, and suffered thereby.an injury.'' We shall get a completer view of the elements of the combination, by travelling through the sub- ject in the order already indicated ; namely, — II. As to what Things. § 318. Any Accomplished Cheat — Damage. — The rule that one cannot complain of another's wrong until he has suffered from it,^ precludes the maintaining of an action of deceit for a mere attempted cheat. Damage must combine with the fraud.^ But where this combination exists, there ap- pears to be no limitation of the things, among those whereof the law takes cognizance, to which our present doctrine may » Boyd V. Browne, 6 Barr, 810. 7 Marshall v. Hubbard, 117 U. S. " Routh V. Caron, 6i Texas, 289. 415. * Scott V. Lara, Peake, 226 ; Tapp v. 3 Ante, § 22. Lee. 3 B. & P. 367. » Upton v. Vail, 6 Johns. 181 ; Free- * Ante, § 22-48. man v. MoDanlel, 23 Ga. 354 ; Nye v. 6 Slade V. Little, 20 Ga. 371 ; Kim- Merriam, 35 Vt. 438 ; Hanson v. Edg- mans v. Chandler, 13 Iowa, 327. erly, 9 Post. H^. H. 343 ; Otis v. Rav- e Cox V. Highley, 4 Out. Pa. 249. mond, 3 Conn. 413. 134 CHAP. XVII.] DECEIT. §320 be applied.^ The words of Comyns have already been quoted, " any deceit to the damage of another." ^ Thus, — §319. Bargainings about Property. — It extends to all de- ceitful — in other words, fraudulent — bargainings about property, whether real ^ or personal ; * as, for example, where one sells a chattel concealing a defect which he ought to dis- close,^ or falsely representing something concerning it,® or practises a fraud in the sale of lands,'' or fraudulently misde- scribes them,* or sells non-existing lands,^ or lands to which he has no title.^" or sells as his own personal property in pos- session known by hian to be another's," or another's paid note as being a subsisting obligation.^ Again, — § 320. Misrepresentations ets to Trustworthiness. — A common form of this cheat is where one, to pi'ocure credit for another, represents him as responsible, knowing that he is not. There- upon the person who, for example, sells him goods or lands on the faith of this representation, can, on its falsity appearing, recover his money of the one who made it.^^ This is a branch of the law of deceit so liable to be abused that, in England, since ' Allison o. Tyson, 5 Humph. 449 ; Howard v. Gould, 28 Vt. 523 ; Russell V. Clark, 7 Cranch, 69, 89, 92. 2 Ante, § 313. 8 Ladd V. Pigott, 114 IlL 647 ; Bish V. Van Cannon, 94 Ind. 263 ; Grier v. Dehan, 5 Houst. 401 ; Phinney v. Hub- bard, 2 Wash. Ter. 369. * Buzard v. Houston, 119 U. S. 347 ; Routh ». Caron, 64 Texas, 289 ; Cole t>. Cassidy, 138 Mass. 437. 6 Paddock v. Strobridge, 29 Vt. 470 ; Thompson ». Morris, 5 Jones, N. C. 151 ; Marsh o. Webber, 13 Minn. 109 ; Lunn i>. Shermer, 93 N. C. 164. « Plant V. Condit, 22 Ark. 454 ; Ad- dington v. Allen, 11 Wend. 374 ; Bald- win V. West, Hardin, 54 ; Mizell v. Sims, 39 Missis. 331 ; Houston v. Gil- bert, 3 Brev. 63 ; Drake o. Grant, 36 Hun, 464 ; Stevens o. Fuller, 8 N. H. 463. ' Culver i>. Avery, 7 Wend. 380 ; Wade V. Thurman, 2 Bibb, 583 ; Strong V. Peters, 2 Root, 93 ; Harlow v. Green, 34 Vt. 379 ; Ekins v. Tresham, 1 Lev. 102 ; Monell v. Colden, 13 Johns. 395 ; Martin v. Jordau, 60 Maine, 531. 8 Clark 0. Baird, 5 Selden, 183 ; Davis V. Bowland, 2 J. J. Mar. 27. Warden v. Fosdick, 13 Johns. 325. w Culver V. Avery, 7 Wend. 380 ; Whitney o. Allaire, 1 Comst. 305. 11 I-udlow V. Kidd, 4 Ohio, 244 ; Roswel V. Vaughan, Cro. Jac. 196, 197 ; Fumis V. Leicester, Cro. Jac. 474 ; Tur- ner V. Brent, 12 Mod. 245 ; Cross v. Gardner, 1 Show. 68 ; s. c. nom. Cross V. Garnet, 3 Mod. 261. " WiUiams v. Bates, 15 Neb. 565. 1' Pasley v. Freeman, 3 T. R. 51 ; Haycraft v. Creasy, 2 East, 92 ; Upton V. Vail, 6 Johns. 181 ; Harrison v. Sav- age, 19 Ga. 310 ; Bennett t'. TerriU, 20 Ga. 83 ; Zabriskie v. Smith, 3 Keman, 322; Corbett v. Gilbert, 24 Ga. 454; Anderson v. McPike, 86 Mo. 293 ; Pat- ten V. Gumey, 17 Mass. 182 ; Lord v. Goddard, 13 How. U. S. 198 ; Tryon v. Whitmarsh, 1 Met. 1. 135 § 323 WRONGS WITH PARTICULAR NAMES. [BOOK III. 1829, this sort of representatioD, to be a ground of action, has by statute been required to be in writing.^ And a like pro- vision has been introduced into the statutes of some of our States.^ § 321. other Forms — of this cheat are paying an agreed price in counterfeits, whereupon an action of deceit will lie to recover the price ; ^ delivering counterfeit bonds, instead of the genuine ones which were bargained to be furnished ; * winning another's money with false dice,* or purposely in a horse-race riding against a competing horse ; ® borrowing a safe with a combination lock, and returning it locked on a combination which the borrower refuses to disclose, so rendering it worth- less ; ^ a physician taking with him a non-professional un- married man without necessity, to be present at a confinement case, and passing him off as a medical man ; ^ a dealer selling one a gun which he fraudulently represents to be safe when it is not, to be used by several persons, and one of them uses it and is injured,^ — these, it should be remembered, are but illustrations of frauds numberless in form, and pervading the entire body of our social existence. III. On what Representation. § 322. Analogous. — The doctrines of this sub-title and the next are analogous to corresponding ones in the criminal law of cheating by false pretences,^" an examination whereof will be helpful here. § 323. Differences of Opinion. — There are slight judicial differences as to some particulars within this sub-title. Yet, on the whole, the discords are not great ; and, looking at the 1 9 Geo. 4, c. 14, § 6 ; Haslock ». * Shippen ». Tankersley, 4 McCrary, Fergusson, 7 A. & E. 86 ; Lyde v. Bar- 259. nard, 1 M. & "W. 101 ; Svrann ». Phil- ' Harris v. Bowden, 1 Cro. Eliz. 90. lips, 8 A. & E. 457. « McKay v. Irvine, 11 Bis. 168. 2 Norton v. Huxley, 13 Gray, 285 ; ' Neff v. Webster, 15 Wis. 283. Hearn v. Waterhouse, 39 Maine, 96 ; > DeMay v. Roberts, 46 Mich. 160. Kimball v. Comslook, 14 Gray, 508 ; » Langridge v. Levy, 2 M. & W. 519,- Mann v. Blanchard, 2 Allen, 386 ; Bush affirmed 4 M. & W. 337. See Carter v. V. Sprague, 51 Mich. 41. Hai-den, 78 Maine, 528. 8 Lane v. Hogan, 5 Yerg. 290. w 2 Bishop Crim. Law, § 415-476. 136 CHAP. XVII.] DECEIT. § 325 legal reasons as guides to the better doctrine, we may outline it thus, — § 324. Doctrine Defined. — The doctrine of this sub-title is, that the representation must be of some existing fact, in dis- tinction from an opinion, a promise, or an assumed future fact ; that the sort of thing represented is immaterial, except that it must be of a nature and magnitude having some adaptability to accomplish the fraud ; and that it must be false, and made with a fraudulent purpose, which includes a consciousness of falsity,^ such as the knowledge that it is false, a want of knowledge that it is true, or an indifference whether it is true or false. To particularize, — § 326. Present Fact — (Opinion — Future Pact). — An opin- ion is a mere condition of the mind that entertains it. Neces- sarily and properly it guides that particular mind, but not the mind of another person. It is the prime law of our being that each individual should and must follow his own opinions ; and a municipal law recognizing any claim in one man to lead another by his views, or right in the other to follow them where contrary to his own, would be a reprehensible attempt to overturn a fundamental law in nature. Therefore the ex- pression of a mere opinion, however false or fraudulently meant, can never be the foundation of an action of deceit.^ The representation must be of a fact,^ though it will not be- come inadequate should opinion be mingled with it. And it is sometimes a nice question whether or not a particular repre- sentation goes beyond opinion and includes fact. One's say- ing that he or another is " a person safely to be trusted and given credit to " may be opinion within our rule ; * while, on the other hand, the possession of property or income which constitutes the ability to pay is a fact, in which view the false > Wakeman v. Dalley, 51 N. Y. 27, v. Crawford, 7 Bradw. 29 ; Banta v. 35. Savage, 12 Nev. 151. > Pasley v. Freeman, 3 T. R. 51, 57 ; ' Sieveking . Hayt, 19 N. Y. 464. 3 Conn. 413. i" Clopton v. Cozart, 13 Sm. & M. * Ante, § 37-39 ; Schanck o. Mor- 363 ; Bowman v. Carithers, 40 Ind. 90. ris, 7 Bob. N. Y. 658 ; Reynolds v. " Ante, § 39 ; Shaw v. Stine, 8 Bosw. French, 11 Vt 674 ; Oberlander v. 157. Spiess, 45 N. Y. 175 ; Macollar t>. Me- ^ 2 Bishop Crim. Law, § 424, 461 ; Kinley, 99 N. Y. 353. Addington v. Allen, 11 Wend. 374. ° Hagee v. Grossman, 31 Ind. 223 ; 141 § 339 WRONGS WITH PARTICULAR NAMES. [BOOK HI. § 337. Blindly Misled. — That the defrauded party is too credulous, and blindly misled, may perhaps, in some extreme cases, be a defence to this action,^ but it is not always or gen- erally S0.2 The true principle is believed to be, that the test of the representation is its actual effect on the particular mind, whether it is a strong and circumspect one or one weak and too relying.^ V. The Nature of the Damage. § 888. Must be Actual. — We saw in the last chapter that in slander and libel the law, without specific proof, ordinarily imputes damage.* The rule in deceit would not be different if the two cases were alike. But injury as of course follows words actionable per se, they take effect upon the character ; on the other hand, a false representation made with the Tiew to cheat a person does not injure him unless or until he is cheated. So the doctrine is, as already said,* that the right to complain of a deceit does not arise until the party has suf- fered an actual damage.® Thus, — § 339. Illustrations. — If one by fraud is led to indorse a promissory note, he cannot maintain this action until he has paid it ; for, until then, there is no certainty that the maker will not pay.'^ A person who interferes fraudulently with what another contemplates, and intercepts anticipated profits, where no actual contract has been made, does not inflict a damage which will sustain this action ; ® but, where the deceit brings about a breach of contract, the consequence is other- wise.' If one fraudulently uses another's trademark, and act- ually sells goods with it upon them, as being the manufacture of the proprietor of the trademark, suflScient legal damage appears, though nothing more specific is shown. The right is injured.^* 1 Frenzel v. Miller, 37 Ind. 1 ; Jor- 6 Ante, § 318. dan V. Pickett, 78 Ala. 331. « Wemple v. Hildreth, 10 Daly, 481 ; 2 Caldwell v. Henry, 76 Mo. 254 ; Hagood v. Southern, 117 U. S. 52. Mead v. Bimn, 32 N. Y. 275 ; Donelson ' Freeman v. Venner, 120 Mass. 424. V. Young, Meigs, 155. 8 Dudley v. Briggs, 141 Mass. 582. » 2 Bishop Crini. Law, § 433-436. " Lumley v. Gye, 2 Ellis & B. 216. * Aute, § 270, 271, 276, 284, 310. i» Blofeld v. Payne, 4 B. & Ad. 410, 142 CHAP. XVII.J DECEIT. § 342 § 340. The Amount of Damage — is the actual loss.^ For example, one who has heen induced by another's deceit to sell goods to an insolvent person can recover of the former their yalue ; ^ or, who, through another's representation that a note is unpaid, when in fact it is paid, buys it, can have back the full amount.^ § 341. Damage against Law. — Where the case is such that the giving of damages would violate a rule of law, the action itself is not maintainable. Thus, if a justice of the peace is by false representations induced to marry an infant, and is prosecuted and fined therefor, it has been deemed that he can- not recover the amount of the fine in an action of deceit, be- cause the loss was " by his own wrongful conduct." * Upon ordinary principles of the criminal law, there could be no punishment where the magistrate thus acted from an inno- cent mistake of fact; and there are analogies justifying a doubt of the correctness of refusing him redress, assuming him to have acted under the honest and carefully formed be- lief that the person was of age.^ In accord with which view, the buyer of liquors sold by an unlicensed person in violation of a statute making the sale penal, may maintain an action for a deceit in the sale, if, when he bought them, he was not aware that the seller had no license.® There are within this doctrine cases wherein a recovery will be prevented by some unreversed — § 342. Action of a Court. — One who has had a decree in chancery, or a judgment in a suit at common law, rendered against him because of perjured evidence, cannot maintain an action against the witness ; for, to suffer this would be to vio- late the wholesome rule of law that parties cannot litigate the same thing at the same time through two separate proceedings,^ 411 ; Sykes o. Sykes, 3 B. & C. 541. Co. 9 Casey, Pa. 356 ; Kidney v. Stod- And .see Marsh v. Billings, 7 Cush. dard, 7 Met. 252. 322; Thomson v. Winchester, 19 Pick. ' Sibley v. Hiilbert, 15 Gray, 509, 214. 511 ; Neffii. Clute, 12 Barb. 46«. 1 Tuckwell V. Lambert, 5 Cnsh. * Harvey v. Bush, 2 Penning. 975. 23. ' Ante, § 56 ; Bishop Con. § 481. 2 Ante, § 320 ; Bean v. Wells, 28 » Prescott v. Norris, 32 N. H. 101. Barb. 466 ; Bheem v. Naugatuck Wheel ' Ante, § 246. 143 § 343 WRONGS WITH PARTICULAR NAMES. [BOOK UI. and the other rule,^ that a judgment cannot be collaterally attacked or opened.^ § 343. The Doctrine of this Chapter restated. Whenever one injures another by wrongful conduct of what- ever sort, the law compels him to repair the injury by paying damages. And one form of injuring a man is to cheat him. To take from him a chattel by a cheat is no less a wrong in morals or in law than to carry it away by trespass. And to cheat him out of anything else of value, or otherwise to harm him by a cheat, is equally a wrong. To constitute a cheat, some repre- sentation of some pretended fact, of a sort adapted to influence the mind acted upon, must be so set before it and be such in its semblance that it will be in truth a falsity, yet appear to such mind a reality, will be the inducement to an act injurious to the person or to his property, and will result in actual dam- age. When these several things combine, there is a cheat of the sort we have been considering. Outside of the lines thus drawn, there are various semblances of cheats which are not such in law. And within the wide doctrine thus outlined, there are various minor doctrines, recognized by reason and by the courts, the chief of which are stated in this chapter. The common-law action for this cheat is termed an action of deceit, and from this fact Deceit becomes an appropriate title for the chapter. 1 AUen V. Hickson, 1 Halst. 409 ; Curtis v. Fairbanks, 16 N. H. 542, 544, Morris V. Halbert, 36 Texas, 19. 545 ; Dunlap «. Glidden, 31 Maine, 435 ; 2 Peck V. Woodbridge, 3 Day, 30 ; Cunningham v. Brown, 18 Vt. 123. 144 CHAP. XVIII.] SLANDEB OP TITLE. § 345 CHAPTER XVIII. SLANDER OF TITLE. § 344. Relations of Subject. — The subject of this chapter is in some degree analogous to that of the slander or libel of one in his business.^ But slander, whether oral or written, is a defamation of character, either general, or in respect of some particular quality ; and business capacity, integrity, or method is one of the qualities. It is an injury to the person. What we are now to consider is injury to the property. And it is an injury committed, not by trespass, but by a fraud or deceit, substantially within the principles of the last chapter. § 345. Name — Old Law. — It is of little consequence how the somewhat misleading legal name of this wrong originated. It is believed to be as follows. In early times real estate was the leading subject of ownership ; and it was not protected, as it is now in the United States, by registry laws. Thereupon, if an owner was about to sell or lease land, a third person speaking falsely about his title might practically prevent the transaction. And if such third person did this maliciously, and a damage to the owner followed, an action on the case, such as that for deceit mentioned in the last chapter, would lie against him.^ But if the third person believed himself to have title, and spoke for the protection of his own interests, though in truth he had none, he incurred no liability ; * the injury received by the other being one of the common acci- dents of life, explained in a preceding chapter.* In reason, 1 Ante, § 284. ° Gerard v. Dickenson, 4 Co. 18 a ; * Northumberland v. Byrt, Cro. Jac. Penniman's Case, Sir F. Moore, 410, 1 163 ; Smead v. Badley, Cro. Jac. 397 ; Cro. Eliz. 427. Williams's Case, 2 Leon. 111. * Ante, § 176-184. 10 145 § 347 WRONGS WITH PABTICDLAB NAMES. [BOOK HI. this just doctrine applied as well to anything else as to title ; the courts so held afterward, thus extending the law ; ^ but the name could not be a subject of adjudication, so it was not changed. And still the additions are not always in our books called by the old name. Certainly the one compact whole should not be divided into parts simply because of a name ; it would be better, if necessary, to find a new name. And it ac- cords sufiBciently well with usage to continue the old name equally as to the old ground and as to its accretions. § 346. Defined. — If one falsely and maliciously, and not for the protection of his own interests, by defaming the title, the property itself, or any other legal interest of another, brings damage upon him, he must make good the loss.^ Car- rying in our minds the principles of the last chapter, we need only look into a few particulars here ; thus — § 347. Thing Defamed. — The doctrine is believed to be en- tirely broad, that, not only the title to real estate, but the property itself, and all petsonal chattels, things in action, and whatever else can be owned, is matter to which the slander of this chapter may attach. As subjects of it, for example, may be mentioned a dinner," artificial manure,* tulips,^ a statue,* a copyright,^ a trademark,^ the title to land,^ even to land in another State,i" a lease of land,^^ a bond,^ shares of stock,^" ore,'* a patent right,^^ a ship,^* a race-horse ; ^" and the author is not aware of any case wherein any species of 1 "Wren v. Weild, Law Rep. 4 Q. B. » McDaniel i'. Baca, 2 Cal. 326 ; 730, 734. Linden v. Graham, 1 Duer, 670 ; Pitt 2 Western Count. Manure Co. v. v. Donovan, 1 M. & S. 639. Lawes Chem. Manure Co. Law Rep. 9 i" Dodge v. Colby, 108 N. Y. 445. Ex. 218. u Brook v. Rawl, 4 Exch. 521. ' Dooling 0. Budget Pub. Co. 144 ^ Robertson v. McDougall, 4 Bing. 258. 670. * Western Count. Manui'e Co. ». i' Malacliy ». Soper, 3 Bing. N. C. Lawes Chem. Manure Co. Law Eep. 9 371. Ex. 218. " Eowe v. Roach, 1 M. & S. 304. 6 Gutsole V. Mathers, 1 M. & W. 495. i^ ivans v. Harlow, 5 Q. B. 624 ; 6 Gott V. Pulsifer, 122 Mass. 235. Wren v. Weild, Law Eep. 4 Q. B. 730 ; 7 Swan V. Tappan, 5 Cush. 104 ; Young v. Macrae, 3 Best & S. 264. Hart V. Wall, 2 C. P. D. 146. w Casey v. Amott, 2 C. P. D. 24 ; 8 McElwee v. Blackwell, 94 N. C. Ingram v. Lawson, 6 Bing. N. C. 261. See Day v. Brownrigg, 10 Ch. D. 212. 294. " Wilson v. Dubois, 35 Minn. 471. 146 CHAP. XTIII.] SLANDER OP TITLE. § 351 property has been adjudged to be outside of the present doctrine. § 348. False and Malicious. — The words complained of must be both false and, in legal phrase, malicious ; ^ " mali- cious " signifying, as once explained by a learned judge, " with intent to injure " the party ; ^ or it may mean simply injurious and without legal occasion,^ or that the false words were uttered mala fide.*^ § 349. Fact, not Opinion. — As in the cheat of the last chapter, the injurious words must declare a fact, not a mere opinion of the speaker.^ For example, where there were two rival ferries, and a person diverted travellers from the one to the other by telling them that the former was not so good as the latter, the owner thus deprived of custom was held not entitled to maintain an action against him.® § 350. Damage. — The damage implied by law does not suffice in these cases ; ^ actual damage must be sustained, and it must be alleged and proved.^ For example, it is not action- able to publish of a caterer's dinner that it was " wretched," that " even hungry barbarians might justly object," and that the cigars were " vile " and the wines " not much better," un- less the caterer suing shows some special damage sustained therefrom.* § 351. Justification — (Own Interests). — This doctrine does not deprive a man of any proper looking out for his own in- 1 Ante, § 231, 232, 257, 306 ; Hatch- S. 639, 645, 648 ; Kendall v. Stone, 2 ard V. Mege, 18 Q. B. D. 771, 775. Sandf. 269. 2 Pater v. Baker, 3 C. B. 831, 868, ^ Crush v. Crush, Yelv. 80. Manle, J. ; Hargrave v. Le Breton, 4 ' Johnson v. Hitchcock, 15 Johns. Bur. 2422 ; Steward v. Young, Law 185. Rep. 5 C. P. 122 ; Smith v. Spooner, 3 ' Ante, § 338. Taunt. 246 ; Kendall v. Stone, 1 Sel- » Gresham v. Grinsley, Yelv. 88 ; den, 14 ; Dodge v. Colby, 37 Hun, 515 ; Gerrard v. Dickenson, 1 Cro. Eliz. 196, Stark V. Chitwood, 5 Kan. 141. 197 ; Law ». Harwood, Cro. Car. 140 ; ' Western Count. Manure Co. v. Tasburgh v. Day, Cro. Jac. 484 ; Swan Lawes Chem. Manure Co. Law Rep. 9 v. Tappau, 5 Cush. 104 ; Stark ». Chit- Ex. 218, 223. wood, 5 Kan. 141 ; Fen v. Dixe, W. * Brook V. Rawl, 4 Exch. 521, 524 ; Jones, 444 ; Evans v. Harlow, 5 Q. B. Atkins V. Perrin, 3 Fost. & F. 179 ; 624 ; Malachy v. Soper, 3 Bing. N. C. Wren v. Weild, Law Rep. 4 Q. B. 730, 371 ; Wilson v. Dubois, 35 Minn. 471. 735, 736 ; Steward v. Young, Law Rep. « Dooling o. Budget Pub. Co. 144 5 C. P. 122 ; Pitt v. Donovan, 1 M. & Mass. 258. 147 § 352 WEONGS WITH PARTICULAR NAMES. [BOOK III. terests^ or managing his own business.^ If, for example, he honestly claims as his own what another is about to sell,^ or thus claims that an article in the market is a violation of his patent,* or if the title to the thing is involved in a suit pending in court,* he may and should give intending pur- chasers proper warning. And what he may thus do for him- self his attorney may do for him.® But he cannot use this right as a mere cloak for malice, he must act in good faith.'' § 352. The Doctrine of this Chapter restated. " Live and let live," while a familiar maxim in the ethics of life, is also a part of the law. One may pursue his own interests, but he has no right to interfere with those of an- other ; he may make his own ownership valuable, but not im- pair the value of another's. Therefore if, not in the honest pursuit of his own good, but to dishonestly benefit himself or harm another, a man utters, either verbally or in writing, any defamatory words of another's property, title, or other legal interest, adapted to bring loss to the other, and a legal loss or damage does in fact follow, he subjects himself to the action technically termed slander of title. But without actual dam- age, no derogatory words uttered of property or title will sus- tain a suit ; nor will actual damage suffice if, in the absence of malice, it results to another from what one does or says in the honest pursuit of his own interests. 1 Ante, § 345 ; Smith v. Spooner, 3 ^ Thompson v. VHiite, 70 Cal. 135. Taunt. 246. « Watson «. Reynolds, Moody & 2 Swan V. Tappan, 5 Cush. 104. M. 1. » HUl V. "Ward, 13 Ala. 310 ; Mc- ' Wren v. Weild, Law Rep. 4 Q. B. Daniel v. 3aca, 2 Cal. 326. 730. * Halsey v. Brotherhood, 19 Ch. D. 386. 148 CHAP. XIX.] CONSPIRACY. § 353 CHAPTER XIX. CONSPIRACY. § 353. Nature and Complications of Subject. — There is no word more abused in our common-law books than " con- spiracy." It is often loosely applied to an indefinite part of the civil and criminal wrongs wherein two or more persons participate, whether the participation is attended by any special consequences or not, — properly if it is so attended, and improperly if it is not. For example, if two combine to commit an offence of a sort which one can just as well per- petrate alone, and fail, their act, which is truly an attempt, and which would be called such if one did it, is inaccurately set down in the criminal law books as a conspiracy.^ In our civil jurisprudence, things are even more confused. There is an old writ of conspiracy ; and, when it was in common use, it was said that " conspiracy, to speak properly, lies only for procuring a man to be indicted of treason or felony, where life was in danger." * In other words, it was a branch of malicious prosecution.^ Afterward the ordinary action for conspiracy was case,* and so it remains at the common law. But case, we have seen, is the common-law form of action for malicious prosecution,^ for deceit,® for slander of title,^ and it is such also for slander and libel, and for various other sim- ilar wrongs. Hence, — 1 2 Bishop Crim. Law, § 173, 191- 2 Mod. 51 ; Conspiracy Case, 12 Co. 195. 23. " Savill V. Roberts, 1 Ld. Eaym. 874, * lb. ; Jones v. Westervelt, 7 Cow. 879. 445. » Parker v. Huntington, 2 Gray, 124 ; » Ante, § 220. Pollard o. Evans, 2 Show. 50 ; Jones v. « Ante, § 813. Gwynn, 10 Mod. 214 ; Norris v. Palmer, ' Ante, § 345. 149 § 355 WEONGS WITH PARTICULAR NAMES. [BOOK III. § 354. More Defendants than One — Proof. — The common- law action for a variety of wrongs being the same whether a conspiracy was charged or not, and it being commonly useful for a plaintiff to hold as many defendants as he could, the usage grew up for the pleader to draw into his net as defend- ants all persons against whom there was a probability of his proving any participation, and charging the act as a conspiracy. And the rule has always been and is that, though less than all are shown to be guilty, there may be a verdict against less, or even against one alone, if a sufficient wrongful act is made to appear against him.^ In other words, the adjudged law is that, in these circumstances, the wrong is not a conspiracy either in whole or in part ; if it were, there could be no ver- dict against any defendant unless the conspiracy was proved. To call it a conspiracy, therefore, is a mere abuse of language. Now, — § 355. 'Whether Conspiracy. — Is there a civil wrong prop- erly termed conspiracy ? In the criminal law, there are wrongs against the public, whereof a part are as incorrectly called conspiracy as are the civil ones just mentioned ; but, at the same time, another part justly bear this name. The prin- ciple governing the latter is, that, under various circum- stances, there is a special danger to the public from the combinings of people to do evil, and special need to punish such combinings, where the thing attempted, even if done by a single individual, would not be within the reasons justifying an indictment. So that there is a crime of conspiracy, con- sisting of the combining of will and endeavor, whereof one cannot be guilty unless his fellows are guilty also.^ And it is a principle of our civil jurisprudence that, whenever one suffers specially from a crime, he may have his civil action of tort against the wrong-doer ; ^ or, as expressed in an English court, applying the principle specifically to conspiracy, if parties are 1 Subley v. Mott, 1 Wils. 210 ; Par- Murph. 329 ; Laverty v. Yanarsdale, 15 ker V. Huntington, 2 Gray, 124 ; Muriel Smith, Pa. 507. V. Tracy, 6 Mod. 169 ; note to Skinner = 1 Bishop Grim. Law, § 592 ; 2 lb. V. Gunton, 1 Saund. Wms. ed. 228 d, § 172, 180-190 ; 2 Bishop Grim. Proced. 230 ; Hutchins v. Hutchins, 7 Hill, § 225. N. Y. 104 ; Eason v. Westbrook, 2 * Ante, § 279 ; post, § 424 150 CHAP. XIX.] CONSPIBACT. § 357 liable to indictment for conspiracy, " then an action for con- spiracy would lie." 1 Therefore the conclusion seems inevi- table that there are circumstances in which conspiracy proper is actionable ; in other words, in which one commits a civil wrong when, and only when, another or others participate with him. But — §356. Plaintdff Injured — ('V7hether Conspiracy, again). — The rule in civil jurisprudence, that one cannot maintain a suit for another's wrong until he has been injured thereby,^ greatly reduces the number of actions for what is truly con- spiracy. The mere criminal combining is at the common law indictable,* but no wrongful combination is actionable until the party complaining has suffered a damage ; * though, in proper circumstances, there may be in equity an injunction against carrying out the conspiracy.* In an action at law, I therefore, the material thing is to show an injury, and it would at the first impression seem to be unimportant whether one defendant or more did it. Probably from this reason, but it is of little consequence from what, some text-writers and judges have expressed the opinion that there is no such thing as conspiracy proper in our civil jurisprudence. The question could not be matter of judicial decision, for it would be im- possible to make up a record involving it. Nor would it in any case be absolutely necessary that a verdict should be ren- dered against more than a single conspirator ; for it is so even in the criminal law. But it is simple fact that there are ac- tionable injuries which two or more can inflict on another, not within the power of one alone. Therefore it is fact, how- ever we may reason, that there is a civil wrong properly termed conspiracy. Hence — § 357. Defined. — Conspiracy, in the proper, restricted 1 Mognl Steamship Co. c. McGregor, * Bishop Cou. § 521 ; Savill v. Bob- Ac Co. 15 Q. B. D. 476, 483, 484, 15 erts, 1 Ld. Baym. 374 ; KimbaU v. Cox C. C. 740, Lord Coleridge, C. J. ; Hannan, 84 Md. 407 ; Herron o. s. P. Oarew V. Bntherford, 106 Mass. Hughes, 25 CaL 555 ; Patten v. Gra- 1, 10. ney, 17 Mass. 182 ; Swan ». Saddle- « Ante, § 22-34. mire, 8 Wend. 676. * 2 Bishop Crim. Law, § 171-173, * Mogal Steamship Co. v. McGregor, 192 ; Beg. v. Best, 1 Salk. 174 ; Com- 4o. Co. 15 Q. B. D. 476, 15 Cox C. C. monwealth v. Corlies, 8 Philad. 450. 740. 151 § 360 WRONGS WITH PARTICULAR NAMES. [BOOK III. meaning of the word, and viewed as a tort, is a malicious com- bination of two or more persons to injure another, in person or property, in a way not competent for one alone, resulting in actual damage to him.^ Thus, — § 358. Sefraading of Goods. — A single individual might subject himself to an action of deceit by defrauding another of his goods. But there are ways of doing it which one cannot carry out alone, they require conspiracy. For example, two men enter into the compact that one shall buy goods of a third on credit, make a transfer of them to the other, then ab- scond ; the third person is thus cheated, and he may maintain his action for conspiracy against the wrong-doers, though neither could have done this sort of cheat alone, and neither has done it unless the other did also his part.^ Again, — § 359. Hissing Actor to Ruin him. — It is indictable for a company of men to conspire, not to express at a theatre the emotions which spontaneously arise in their minds, but to hiss a particular actor off the stage for the purpose of ruining him.* Thereupon it follows from the rule above stated * that, if this conspiracy is carried out, and the actor suffers from it a pecu- niary damage, — as, for example, loses his engagements, — an action for conspiracy will lie against the conspirators.* But it is obviously not in the power of one man to hiss off the stage an actor whom the rest of the audience approve, and the only possible action which can succeed in this case is one of conspiracy, though it is not necessary there should be a ver- dict against more than a single defendant.^ § 360. In the Law of Evidence — conspiracy plays a con- » In Place ». Minster, 65 N. Y. 89, * Ante, § 355. 9.5, Dwight, C. said : "The essence of ' Gregory v. Branswick, 6 Man. & a conspiracy, so far as it justifies a civil G. 205, 6 Scott N. K. 809, 1 Car. & K. action for damages, is a concert or com- 24, 8 Jur. Ii8, affirmed 3 C. B. 481. bination to defraud or to cause other As to which see Carew v. Rutherford, injury to person or propei'ty, which 106 Mass. 1, 11. And see Wildee v. actually results in damage to the person McKee, 1 Am. Pa. 335. or property of the person injured or de- * And, comparing with post, § 365, franded." see Carew v. Rutherfonl, 106 Mass. 1 ; 2 Place V. Minster, 65 N. Y. 89. Springhead Spinning Co. v. Riley, Law « 2 Bishop Crim. Law, § 216, 308, Eep. 6 Eq. 551 ; post, § 1095. note. 152 CHAP. XIX.] CONSPIRACY. § 362 siderable part, and the doctrine there i8 different from that here stated.^ It is not for discussion in the present volume. § 361. Misnamed Conspiracies. — Civil actions which are improperly called conspiracy, such as deceit, slander, seduc- tion, and various others where a conspiracy is needlessly alleged, and the allegation is treated as surplusage,^ are governed, not by the law of conspiracy here stated, but by the rules pertaining to the class to which they belong. § 362. The Doctrine of this Chapter restated. The term " conspiracy " is, in our books, oftener misap- plied than used correctly. In the just meaning of the word, the title is a considerable one in the criminal law ; in our civil jurisprudence it is narrow, yet it exists, and is important. It signifies, in the true and narrow sense, a wrongful combina- tion of persons to do any act or acts which, when done, have brought to another an injury of a sort not admitting of being accomplished by one alone. Where the injury is what one could have effected alone, there is still a rule in the law of evidence useful to the plaintiff in making out a charge against confederates, — not explained in this chapter. 1 1 Bishop Crim. Proced. § 12i8, * For example, Hayward v. Draper, 1249. 3 AUen, 551. 153 § 365 WEONGS WITH PARTICULAR NAMES. [BOOK III. CHAPTER XX. SBDUCXIONS. § 363. Introduction. 364-367. General Doctrine. 368-372. Enticing away Servant or Employee. 373-377. Enticing away a Minor Child. 378-384. Immorally Seducing Female Servant. 385-387. Other Seductions of Women. 388. Doctrine of Chapter restated. § 363. How Chapter divided. — We shall consider, I. The General Doctrine ; II. The Enticing from Service of a Ser- vant or Employee ; III. The Enticing away of a Minor Child ; IV. Immorally Seducing a Female Child or Servant ; V. Other Seductions of Women. I. The Creneral Doctrine. § 364. The Principle — has already appeared in various connections in the foregoing chapters, that, while a man may carefully conduct his own affairs, whether of pleasure or of business, without being responsible to another casually injured thereby, if, stepping outside of this line of doing, he inflicts harm upon another, he subjects himself to an action of tort.^ Thus, — § 365. Depriving of Services. — One form of this harm is depriving a person of another's services to which he is en- titled. We saw an illustration of this in assault and battery .^ And it is the same where a disability is wrongfully inflicted in any other way ; as, for example, by a railroad or other like * And see the expositions of Wells, J. in Walker v. Cronin, 107 Mass. 555. 2 Ante, § 201-203. 154 CHAP. XX.] SEDUCTIONS. § 369 accident,^ or by imprisoning the servant,^ or carrying him away by force.^ It is the same thing also, in its legal conse- quences, to drive away the servant by threats.* And that it is not different where his removal from the service is by se- duction will be made specially to appear in this chapter. The seductions are various ; as to all, — § 366. Doctrine defined. — Enticement, or seduction, being a form of inflicting harm cognizable by the law, whenever one allures by it any person from the performance of a ser- vice due to another, the seducer may be compelled to com- pensate the other for any legal damage suffered. § 367. Cases differing. — Services become due in different ways, and there are varying forms of enticement. So that the further expositions of this chapter will be most conveniently made under their respective sub-heads, in the order already indicated. n. The enticing from Service of a Servant or Employee. § 368. Defined. — It is actionable to entice away, from a master or employer, one who is under any legal obligation to render him personal service. Thus, — § 369. Apprentice. — This doctrine applies to an appren- tice." And the relation of master and apprentice is such in law that the former is entitled absolutely to the earnings of the latter.® So that, although the seducer of the apprentice commits by the seduction a tort, the master may waive it and sue him in form of contract for wages,'' even though they 1 Ames V. Union By. 117 Mass. 541 : Dickson v. Dickson, 38 La. Ad. 1261. Martinez i>. Gerber, 3 Man. & G. 88, 5 And see CSarew i;. Rutherfoid, 106 Jut. 463. Bnt this doctrine has been Mass. 1. held not to extend to the compelling of * Reg. v. Daniel, 6 Mod. 182 ; a mere breach of contract between the Reavely v. Main waring, 8 Bur. 1306. servant and third peison. Alton u. ° Barber v. Dennis, 6 Mod. 69, 1 Midland By. 19 C. B. N. s. 213, 11 Jnr. Salk. 68 ; Munsey v. Goodwin, 3 N. H. N. s. 672. 272 ,* Bowes v. Tibbets, 7 Greenl. 457 ; ^ Woodward v. Washbnm, 3 Denio, Conant v. Raymond, 2 Aikehs, 243. 369. ' Lightly ti. Clouston, 1 Taunt 112 ; » Beg. V. Daniel, 6 Mod. 182. Foster v. Stewart, 3 M. & S. 191 ; * Garret v. Taylor, Cro. Jac. 567 ; James v. Le Boy, 6 Johns. 274. 155 § 370 WRONGS WITH PARTICULAR NAMES. [BOOK III. have been already paid to the seduced apprentice,^ or, if the facts justify, sue in trover for the thing earned.^ But the apprentice himself can maintain no action.^ One of the con- sequences whereof is that, unlike the case of seducing an or- dinary hired servant, the employer of an apprentice is liable in the action of contract to the master, although he did not know of the relationship.* On the other hand, if the master wrongfully turns off the apprentice, — as, for example, as- signs him over to another,* — or, after he has absconded, an- nounces that he will not receive him back,® or commits any other analogous fault,^ he thereby forfeits his claim against one who harbors him. Plainly enough, also, if he sues the enticer for the tort, and not for the wages or thing earned, he must show that his adversary knew of the apprenticeship." So also it is in the like relation of parent and child.* § 370. Hired Servant or Employee. — It is actionable to seduce away from his service any employee under a contract of hire.'" But the author is not aware that an action against the seducer, directly for the wages which the servant earned, has, as in the case of the apprentice, been sustained. In prin- ciple, the two cases are believed to be different ; the hired servant being simply under an executory obligation to his master, and the apprentice sustaining a quasi domestic rela- tion which the law created, rendering his time in a different sense the master's. The contract need not be in writing," or otherwise formal. It was sufficient where the servants were journeymen making shoes by the piece ^^ in their own houses, and at the time of the seduction each one left a pair unfin- 1 Bardwell v. Pun-ington, 107 Mass. See, also, Stout v. Woody, 63 N. C. 37 ; 419, 427. Hays v. Borders, 1 Gilman, 46. 2 Barber v. Dennis, supra ; Anony- » Post, § 377. mous, 12 Mod. 415. m Bishop Dir. & F. § 303 ; Hastins » Bright V. Lucas, Peake Ad. C^. v. Eoyster, 70 N. C. 601 ; Scidmore ■». 121. Smith, 13 Johns. 322 ; Jones v. Blocker, * James v. Le Roy, supra. 43 Ga. 331 ; Hartley ». Cumniiugs, 5 5 Ayer v. Chase, 19 Pick. 556. See C. B. 247 ; Bixby v. Dunlap, 56 N. H. Biggs V. Harris, 64 N. C. 413. ' 456 ; Huff v. Watkins, 20 S. C. 477. ' Conant v. Raymond, supra. u Salter v. Howard, 43 Ga. 601 ; ' Bardwell v. Purrington, supra. Huflf v. Watkins, 18 S. C. 510. 8 Stuart V. Simpson, 1 Wend. 376 ; w Anonymous, Lofft, 493. Ferguson v. Tucker, 2 Har. & G. 182. 156 CHAP. XX.J SEDUCTIONS. § 371 ished.^ Nor need the employment be of a menial, of a labori- ous, of a mechanical, or of any other particular sort. The action was held to be maintainable by the lessee of a theatre for seducing away an artist who had agreed to perform therein.^ § 371. Under Binding Contract or not, distingviished. — One carrying on his own honest business is legally justified in hiring away another's servant, who is under no valid contract of service ;* as, for example, where the term of service has expired.* But an infant's contract of service, voidable only by reason of his infancy, is, within this distinction, good un- less he has elected to avoid it.® A fortiori, a contract binding on both sides is effectual for the present purpose.® And there is apparent authority for saying tliat so also is a mere sub- sisting and continuing service at will, which either party may put an end to at pleasure.^ In the sub-title after the next we shall see that, by all opinions, this mere service at will suffices in the case of a female servant seduced from her virtue and gotten with child.^ The true doctrine, often overlooked in discussions on this subject, is believed to be, that, recurring to the principle stated at the opening of this chapter,* where the servant is under no valid contract, yet not where he is under a voidable one which the party entitled has not elected to avoid,^" it is not actionable to hire him away for a lawful pur- pose, where the hirer is merely pursuing his own honest busi- ness ; but to beat a servant during an actual service terminable at will," or to seduce away and debauch a female in the same 1 Hart V. Aldiidge, Cowp. 54. And the contract. Langham r. The State, see Gunter v. Astor, 4 Moore, 12. 65 Ala. 114. » Lumley v. Gye, 2 Ellis & B. 216, 6 Bishop Dir. & F. § 303 ; Milbume followed in Bowen v. Hall, 6 Q. B. D. v. Byrne, 1 Cranch C. C. 239 ; Haight 333. But see Burgess v. Carpenter, 2 v. ^dgeley, 15 Barh. 499 ; Haskins v. S. C. 7. Eoyster, 70 N. C. 601 ; Bowen v. Hall, » Sykes v. Dixon, 9 A. & E. 693 ; 6 Q. B. D. 333. Campbell v. Cooper, 34 K. H. 49. ' Evans v. Walton, Law Rep. 2 C. P. * Bishop Dir. & F. § 303 ; Nichol v. 615 ; Noice v. Brown, 10 Vroom, 569. Martyn, 2 Espi 732, 734 ; Walker v. See Benton ». Pratt, 2 Wend. 385. Cronin, 107 Mass. 555 ; Boston Glass s pogj^ § 384. Manuf. o. Binney, 4 Pick. 425. » Ante, § 364. 6 Keane ». Boycott, 2 H. Bl. 511. i" Bishop Con. § 620, 905, 924. Otherwise where the infant has avoided ^ Jones v. Brown, Peake, 233. 157 § 374 WRONGS WITH PABTICULAR NAMES. [bOOK III. sort of service,^ or to induce another's servants of this kind to leave him for the mere purpose of injuring him,* gives the master a claim upon the wrong-doer for damages, since "here the latter has stepped aside from the lawful seeking of his own interests to do an unlawful act to the other's injury. § 372. Known or not to be Servant — Subsequent Notice. — Plainly, except in cases stated in a preceding section,* if one in the discharge of the ordinary duties of life employs an- other's servant not knowing him to be such, the other's loss comes from an accident,* which he must suffer without com- pensation. The new employer, therefore, to be chargeable with the seduction, must be aware of the relationship.^ Yet if, after being notified of it, he continues to employ the ser- vant, his liability thereupon arises.* On principle, it is be- lieved that the distinction in the last section applies here also ; so that, if the seduction is for an unlawful purpose, the seducer is liable to the master though he did not know of the relationship.^ III. The Untieing away of a Minor Child. § 373. Compared with Servant. — A minor child is ordina- rily, in legal contemplation, his father's servant, but he is not necessarily such.^ Still — § 374. General. — The law invests the father with the right to the services of his minor children, male and female, while he supports them.^ Therefore one who entices .such a child away is, within the doctrine of the last sub-title, liable to him in damages.!" Or, within the principle applicable to an ap- 1 Evans v. "Walton, supra. Ferrell v. Boykin, Phillips, N. C. 9 ; 2 Dickson v. Dickson, 33 La. An. Fawcet o. Beavres, 2 Lev. 63, 3 Keb. 1261. See Springhead Spinning Co. v. 59 ; Caughey v. Smith, 47 N. Y. 244. Riley, Law Kep. 6 Eq. 551. ' Post, § 383. It would be so, even ' Ante, § 369. upon the principles of the criminal law. * Ante, § 176-184. Bishop Stat. Crimes, § 631 a-632 a. « James v. Le Roy, 6 Johns. 274 ; 8 Post, § 551 ; Bishop Con. § 899 ; Morgan v. Smith, 77 N. C. 37 ; Cutting Swartz v. Hazlett, 8 Gal. 118. 1). Seabury, 1 Sprague, 522. s 2 Bishop Mar. & Div. § 528. 6 Blake v. Lanyon, 6 T. R. 221 ; l" Butterfield r. Ashley, 2 Gray, 254 ; 158 CHAP. XX.J SEDUCTIONS. § 377 prentice,^ the father may waive the tort and recover the child's earnings.^ The English court has held that, in an action for an injury inflicted on the child, the father can recover nothing if he has incurred no special expense, and the child is too young — say, two and a half years old — to earn anything.^ Plainly, however, prospective earnings are to be taken into the account, and even a babe at the breast may be so injured as, within this principle, to entitle the father to this action.* § 375. Relation Practically Subsisting. — If the father does not support the child, who is away taking care of himself, his right to the earnings ceases,* and the doctrine now in contem- plation does not apply. The parental relation must be prac- tically subsisting.^ § 376. The Mother, — if the father dies, has the rights above described as to the children whom she supports living with her.'^ § 377. Scienter. — As in the case of an ordinary servant,^ the enticer, to be responsible in the action of tort,* must be aware of the parental right.^" And, even beyond this, some- thing of wrong or of malice has been deemed necessary, though perhaps nothing more than is implied in the idea of a seduction." Evans v. Walton, Law Rep. 2 C. P. 615 ; * Evans v. Walton, Law Eep. 2 Bundy v. Dodson, 28 Ind. 295 ; Sargent C. P. 615 ; Wodell v. Coggesliall, 2 ». Mathewson, 38 N. H. 54. Met. 89 ; Jenness v. Emerson, 15 N. H. 1 Ante, § 369. 486 ; Caughey v. Smith, 47 N. Y. 2»4, 2 Weeks v. Holmes, 12 Gush. 215 ; 250. Compare with post, § 380, 381. White V. Henry, 24 Maine, 531 ; Bishop ' Jones b. Tevis, 4 Litt. 25 ; Camp- V. Shepherd, 23 Pick. 492. The father bell v. Campbell, 3 Stock. 268 ; Cain will in proper circumstances be estopped ». Devitt, 8 Iowa, 116. AndseeMoritz to recover his son's wages, or be held to v. Gamhart, 7 Watts, 302. have waived his claim to them. Smith ' Ante, § 372. V. Smith, 30 Conn. Ill ; Dodge v. 9 Ante, § 369. Favor, 15 Gray, 82 ; Jenness v. Emer- i" Stowe v. Heywood, 7 Allen, 118, SOD, 15 N. H. 486. 120 ; Caughey v. Smith, 47 N. Y. 244 ; 8 Hall V. Hollander. 4 B. & C. 660. Nash v. Douglass, 12 Abb. Pr. N. s. * Post, § 558 ; Drew u. Sixth Ave. 187. Kid. 26 N. Y. 49 ; Traver v. Eighth " Butterfield v. Ashley, 6 Cush. Ave. Rid. 4 Abb. Ap. 422. 249. ' 2 Bishop Mar. & Div. § 528. 159 379 WBONGS WITH PABTIC0LAE NAMES. [BOOK HI. IV. Immorally Seducing a Female Child or Servant. § 378. On what Fiinciple. — Leaving now out of view the relation of husband and wife, the only ^ common-law civil remedy for debauching a consenting female is that to be considered in this sub-title. It does not extend to all cases of debauchment, but only to those wherein, even though the complaining person is the parent, there is a subsisting legal relation of master and servant.^ And the injury technically complained of by the master suing is the loss of services,* without which the action cannot be maintained.^ § 379. Doctrine defined. — Whenever any person sustains to a female the relation of master, whether being the father,^ the widowed mother,® one in loco parentis^ or the employer of an ordinary maid-servant * or probably of any other female employee under contract,^ if a man by an illicit connection with her causes any pecuniary loss to such master, he, not hav- ing connived at the wrong,^" and not being otherwise in fault relating to it," may maintain against the wrong-doer his ac- tion ; wherein he will recover, not merely the actual pecuniary' 1 Aute, § 57 ; post, § 386. man v. Van Sise, 56 N. Y. 435 ; Gray 2 Kinney ». Langhenoiir, 89 N. C. v. Durland, 51 N. Y. 424 ; Lampman v. 365 ; Teny ». Hutchinson, Law Rep. Hammond, 8 Thomp. & C. 293 ; Hitch- 3 Q. B. 599 ; Roberts v. Connelly, man v. Whitney, 9 Hun, 512. 14 Ala. 235 ; Lee v. Hodges, 13 Grat. ^ Magurnay v. Sandek, 6 Sneed, 146; 726 ; South v. Denniston, 2 Watts, Edmondson v. Machell, 2 T. R. 4, a case 474. of assaulting and heating ; Irwin v. * Gray o. Durland, 51 N. Y. 424. Dearman, 11 East, 23 ; Blanchaid v. * Ogbom ». Francis, 15 Vroom, 441 ; Ilsley, 120 Mass. 487 ; Watson ». Wat- Satterthwaite v. Dewhurst, 4 Doug, son, 58 Mich. 507. 315 ; Ellington v. Ellington, 47 Missis. 8 Fores v. Wilson, Peake, 55. 329 ; Hedges v. Tagg, Law Rep. 7 Ex. » Ante, § 365, 370 et seq. ; Elling- 283 ; Blaymire v. Haley, 6 M. & W. ton v. Ellington, 47 Missis. 329. 55 ; Grinnell i>. Wells, 7 Man. & G. »» Ante, § 49-53, 57 ; Seagar ». Sliger- 1033. land, 2 Gaines, 219 ; Reddie v. Scoolt, s Lipe V. Eisenleid, 32 N. Y. 229 ; Peake, 240 ; HolUs v. Wells, 3 Pa. Law Boyd V. Byrd, 8 Blackf. 113 ; Pence v. Jour. Rep. 169 ; Richardson v. Fonts, 11 Dozier, 7 Bush, 133 ; Wert ». Stronse, Ind. 466 ; Zerling v. Mouier, 2 Greene, 9 Vroom, 184. Iowa, 520. s Moran v. Dawes, 4 Cow. 412 ; Vil- " Ante, § 54-65. lepigue •/. Shular, 3 Strob. 462 ; Fur- 160 CHAP. XX.] SEDUCTIONS. § 380 loss, but also exemplary damages,^ as, for the disgrace of his family, the danger to their morals, his mental sufferings, and the loss of the society of the child.^ To look at some of the particulars, — § 380. Father's Legal Sights. — Where the master suing is the father, and the servant is a minor, he may stand on rights conferred by the law, superior to those of most persons in loco parentis. He is entitled to the girl's services, whether she consents to serve him or not, and whether she is actually ren- dering them to him or not, unless he has in some way relin- quished them past recall.' Therefore in all cases where there has been no relinquishment, and the girl is a minor, he may maintain the action.^ But after she has arrived at full age, though she does not seek emancipation, he is legally in the same position only as a stranger in loco parentis to a parent- less girl.^ The English courts seem not to have adverted to this distinction, and they reject the father's right to sue, founded on the girl's being his minor daughter, in various cir- cumstances wherein it would be acknowledged by us.® Leav- ing now the special right of the father, — 1 Irwin V. Deannan, 11 East, 23 ; v. Pitch, 2 Wend. 459 ; Bartley v. Elliott V. NickUn, 5 Price, 641. Bichtmyer, 4 Comst. 38, 44 ; Sargent ^ Terry v. Uutchinson, Law Bep. 3 t>. , 5 Cow. 106 ; Howland v. How- Q. B. 599, 603 ; Ball v. Bruce, 21 111. land, 114 Mass. 617 ; Mulvehall v. 161 ; Stevenson v. Belknap, 6 Iowa, Millward, 1 Keman, 343. 97 ; Lavery v. Ciooke, 52 Wis. 612 ; ' Nickleson v. Stryker, 10 Johns. Morgan v. Boss, 74 Mo. 318 ; Ellington 115 ; Bartley v. Richtmyer, supra, at o. Ellington, 47 Missis. 329 ; Andrews .p. 45 ; Millar v. Thompson, 1 Wend. 17. Askey, 8 Car. & P. 7 ; Bedford v. 447 ; Mercer v. Walmsley, 5 Har. & J. McKowl, 3 Esp. 119 ; Phillips v. Hoyle, 27 ; Bennett v. Allcott, 2 T. K. 166 ; 4 Gray, 568 ; Hatch v. Fuller, 131 Wert v. Strouse, 9 Vroom, 184. And Mass. 574 ; Lnnt v. Philhrick, 59 N. H. it is the same though the daughter is a 59. married woman, living with her father in ' Dain v. Wycoff, 3 Selden, 191 ; separation from her husband. Harper White V. Murtiand, 71 lU. 250. v. LnffMn, 7 B. & C. 887, 1 Man. & R. * White 0. Mnrtland, supra ; Mohiy 166. V. Hoffman, 5 Norris, Pa. 358 ; BaU « Dean v. Ped, 5 East, 45 ; Blay- V. Bruce, 21 HI. 161 ; Kennedy v. Shea, mire v. Haley, 6 M. & W. 55 ; Davies 110 Mass. 147, 150 ; Boyd v. Byrd, 8 v. WiUiams, 10 Q. B. 725. The New Blackf. 113 ; Bolton u. Miller, 6 Ind. Jersey court appears to follow the Eng- 262 ; Emery v. Gowen, 4 Greenl. 33 ; lish doctrine on this snbject. Ogbom Greenwood v. Greenwood, 28 Md. 369 ; v. Francis, 15 Vroom, 441. Martin v. Payne, 9 Johns. 387 ; Clark a 161 § 382 WRONGS WITH PARTICULAR NAMES. [BOOK III. § 381. In Other Cases. — There may be other cases, some- times or in some States that of the mother on the father's death, within the special rule applicable to the father.^ But where this rule does not apply, — that is, where the case is not within its reason, — whether the female is of full age under her father's care, or whether she is of any age under any other care specified in our definition,^ there must be some subsisting service or some contract valid in law ; though the mere subsisting service will sufiice if simply at will, and only nominal and presumptive,^ or if divided between the party suing and a third person.* § 382. Loss of Service. — The loss of service, now to be considered, is that whereon the right to recover damages is founded, — in other words, the injury which must combine with the wrong,* — and it should not be confounded with the mere nominal services ^ which in these cases sufiice to create the relation of master and servant.'^ The master's loss ^ must be something more than is ipiplied in the mere sexual con- nection.® It must come from the connection, as a proximate result ; for example, it is not enough that the girl becomes sick and disqualified for labor through the distress of mind produced by a threatened exposure i" or probably by the seducer's abandoning her.^i If the intercourse communicates a venereal disease,^^ or directly causes any other ill health ^^ or diminution of ability to labor,i* or pregnancy, which pre- 1 Sargent v. , 5 Cow. 106 ; Fur- judges presided over it, committed the man o. Van Sise, 56 N. Y. 435. Con- inadvertence against which I am cau- tra, as to the mother, South v. Dennis- tioning the reader. Hewitt v. Prime, ton, 2 Watts, 474. 21 Wend. 79. " Ante, § 379. 8 Ante, § 378. ' Ante, § 375 ; Hedges v. Tagg, Law ^ Eager v. Grimwood, 1 Exch. 61 ; Rep. 7 Ex. 283 ; Manvell v. Thomson, Grinnell v. Wells, supra ; Humhle v. 2 Car. & P. 303 ; Gray v. Durland, 51 Shoemaker, 70 Iowa, 223. N. Y. 424. 10 Knight v. Wilcox, 4 Kernan, 413. 4 Eist V. Faux, 4 Best & S. 409. u Boyle r. Brandon, 13 M. & W. 738. s Ante, § 22-34 ; Grinnell v. Wells, ^^ -vfhite v. Nellis, 31 N. Y. 405. 7 M. & G. 1033, 8 Scott N. R. 741, 8 !» Blagge v. llsley, 127 Mass. 191. Jur. 1101. See Harris v. Butler, 2 M. & W. 539. 8 Ante, § 381. 1* Abrahams v. Kidney, 104 Mass. ' It is remarkable that the Kew York 222. court, at a time when the very ablest of 162 CHAP. XX.] SEDUCTIONS. § 384 sumably reduces the capacity for work while yet there has been no birth of any living child,^ the action is maintainable. There is little need to add that, a fortiori^ it is so in the common case wherein the girl has given birth to a bastard child. § 383. Scienter. — In the cases within this sub-title, there is no need to allege and prove, as in those wherein one in the pursuit of his own interests hires another's servant,^ that the seducer knew of the subsisting duty to serve the party com- plaining. There is not much direct authority on this ques- tion, for the doctrine thus stated has been accepted as of course. We have Chitty's authority for it,^ together with the practice not to introduce the allegation into the com- mon-law, declaration.* The reason for the distinction is stated in preceding sections.^ And this doctrine is sustained and supplemented by another already appearing ; namely, that, — § 384. Non-obligatory Service de facto. — By the common practice of the courts, accepted without dissent, and proved by the mass of cases, so that no one need be cited to the proposition, a mere service de facto, without any legal obliga- tion to continue it, gives the master the right to sue for the seduction.® We have seen that he has no such right where he complains of the hiring away of his servant.^ And how- ever the judges may in many cases have overlooked the rea- son of the distinction, it plainly is that, in the one instance, the seducer is in the lawful pursuit of his own interests, ren- dering it impossible to put him in the wrong unless he knows of the servant's subsisting legal obligation ; while, in the other instance, the immoral act is itself a wrong, and the com- plaining master need rely only on the possession of the service as against the palpable wrong-doer. 1 Ingerson v. Miller, 47 Barb. 47 ; the plaintiff." 2 Chit. PI. 644, note, Briggs ■». Evans, S Ire. 16. See Humble citing, among other places. Fores «. V. Shoemaker, supra. Wilson, Peake, 55. 2 Ante, § 369, 371, 372, 377. * 2 Chit. PI. 644, 856. ' "It is not necessary to allege or ^ Ante, § 371, 372. prove that the defendant knew that the ' Ante, § 378, 381. female was the daughter or servant of ' Ante, § 371. 163 § 388 WRONGS WITH PARTICULAR NAMES. [BOOK in. V. Other Seductions of Women. § 385. Wife.— The seduction or enticing away of a wife might properly enough be treated of in this connection ; depending, as it does, mainly on principles stated in the fore- going sub-titles. But its more appropriate place is deemed to be elsewhere. § 386. Action by Seduced 'Womaii. — We have seen that, under the common law, a woman cannot maintain a suit for her own seduction.^ But in some of our States there are stat- utes changing this, and permitting her to sue.^ The provision that " an action for seduction may be maintained without any allegation or proof of the loss of service " is not enough ; the plaintiff, to be within these statutory words, must be one entitled under the" prior law.^ § 387. other statutes, — more or less augmenting the com- mon-law remedy, prevail in a few of the States,* but they do not require special notice. § 388. The Doctrine of this Chapter restated. To entice away one from any duty which he owes to an- other is, in the absence of legal justification, a wrong to the person to whom the duty is due. And an action wUl lie for the redress of this wrong. Where the enticement consists simply in employing the one who owes the duty, the enticer, acting only in the prosecution of his own lawful affairs, is not liable in tort unless he knows of the existence of the duty. For a wrong in the defendant, concurring with a right in the plaintiff, must be shown. But where the enticement has no connection with any lawful doing, and is of a sort which is reprehensible whether the person enticed owes a service or 1 Ante, § 57. 102 Ind. 494 ; Hart v. Walker, 77 Ind. 2 Thompson v. Young, 51 Ind. 599 ; 331 ; Wilson v. Shepler, 86 Ind. 275. Weiher v. Meyersham, 50 Mich. 602 ; s Woodward v. Anderson, 9 Bush, Watson V. Watson, 49 Mich. 540 ; West 624. V. Druff, 55 Iowa, 335 ; Watson v. Wat- * Ryan v. Fralick, 50 Mich. 483 ; son, 53 Mich, 168 ; Hodges v. Bales, Weiher v. Meyersham, 50 Mich. 602. 164 CHAP. XX.] SEDUCTIONS. § 388 not, notice of service due is not necessary as a foundation for the action. Moreover, in the former case, the service must arise either out of a contract or out of some other legal obli- gation ; in the latter, a simple service de facto suffices. And the distinction comes from the right of every man, on the one hand, to carry on circumspectly the lawful affairs of life, witliout paying damage to a person casually injured thereby ; and his liability, on the other hand, to make good the loss or suffering which another endures whenever he steps out- side of this line of doing. The hiring away of a chUd from his father, or of an. apprentice from his master, differs from that of a mere hired servant, in enabling the person injured, at his election, to sue for the wages earned, instead of his damages from the tort. 165 § 390 WRONGS WITH PARTICULAR NAMES. [BOOK III. CHAPTER XXI. TRESPASS TO PROPERTY. § 389. Trespass — is one of the common-law forms of ac- tion. And in giving it technical limits, the law circumscribes also the meaning of the word as applied to the wrong itself. So that there may be, for example, a conversion of personal property, to be explained in the next chapter, which is as great an injury to it as any trespass can possibly be, yet is not called by the same name. Not to undertake nice distinc- tions, the action of trespass is maintainable simply for an injury to the actual or constructive possession, committed by some immediate force,^ and it does not lie for an injury to the ownership not thus in possession. So also assault and bat- tery, treated of in a preceding chapter, is trespass, not to the property, but to the person. The forms of action pertain to the procedure, which is not for this volume. And wherever a division of our subject upon the line of those forms would cut up and separate things which belong together, it is the plan of these elucidations to seek instead some other order. Hence, — § 390. Elsewhere. — Further on, in a series of chapters, we shall among other things consider injuries to lands, chattels, ways, and the like, not inquiring whether the remedy for them is trespass or anything else. Therefore it is not de- sirable to introduce into this chapter the elucidations which, in legal treatises arranged in the order of the forms of action, make the present head an extensive one. But the title, if no more, seemed necessary to a completion of the general view to which the present Book is devoted. And there is a par- 1 1 Cliit PI. 166 ; 2 Greenl. Ev. § 613, 614. 166 CHAP. XXJ.] TRESPASS TO PROPERTY. § 393 ticular doctrine, apparently concerning simply the form of the action, yet really entering into the law itself, requiring men- tion here ; namely, that of — § 391. Trespass db Initio : — Defined. — Whenever one enters upon the doing of a thing in itself actionable, yet made lawful by license, if the license comes, not from the party, but from the law, and the doer after properly proceeding part way abuses the license by some positive wrong, he forfeits it, so that it not even protects him as to what he rightfully did, but he is treated as a trespasser ah initio.^ Thus, ->- § 392. Law and Party distinguished. — If one knocks at the door of a private dwelling and is invited in, then misconducts himself in the house, he is responsible for such misdoing therein, but his original entry is not treated as a trespass ; it having been made under license, not from the law, but from the party.^ On the other hand, an innkeeper is required by law to receive as far as he can all guests applying ; ^ one of the consequences of which is that the law licenses the applicant to enter the inn, and his entering without express invitation is not a trespass. But if one having thus entered misbehaves himself therein, his license is forfeited as from the beginning, and even his original entry is treated as a trespass.* § 398. ■Why ? — The Six Carpenters' Case, in Coke's Ee- ports, is the source to which it is customary to trace this doc- trine. And the reason there given for the distinction is that, where the law grants the license, " the law adjudges by the subsequent act, quo animo, or to what intent," the party acted thereon. But where the one complaining had himself ac- 1 1 Bishop Crim. Law, § 208 ; Six « Smith v. Pierce, 110 Mass. 35 ; Carpenters Case, 8 Co. 146 o ; Waddell Dumont v. Smith, 4 Denio, 319 ; Al- V. Cook, 2 Hill, N. Y. 47 ; Van Brant len v. Crofoot, 3 Wend. 506. For a V. Sohenck, 13 Johns. 414 ; Narehood contrary dictum stated in a case rightly V. Wilhelm, 19 Smith, Pa. 64 ; Mussey decided, see Adams v. Freeman, 12 V. Cummings, 34 Maine, 74 ; Burton v. Johns, 408. Calaway, 20 Ind. 469 ; Bradley v. Da- « 1 Bishop Crim. Law, § 532. vis, 14 Maine, 44 ; Jarratt v. Gwathmey, * Six Carpenters Case, 8 Co. 146 a. 5 Blaokf. 237 ; Esty v. Wilmot, 15 Gray, 168 ; Oxley v. Watts, 1 T. E. 12. 167 § 394 WEONGS WITH PABTICULAB NAMES. [BOOK HI. corded the license, " he cannot, for any subsequent cause, pun- ish that which is done by his own authority." " A better reason," a very eminent judge once observed,^ " is given in Bacon's Abridgment : Where the law has given an authority, it is reasonable that it should make void everything done by the abuse of that authority, and leave the abuser as if he had done everything without authority. But where a man, who was under no necessity to give an authority, does so, and the person receiving the authority abuses it, there is no reason why the law should interpose to make void everything done by such abuse, because it was the man's folly to trust another with an authority who was not fit to be trusted therewith." This latter explanation seems to the present writer to be sim- ply a fuller statement of the former. And neither is in con- tradiction of what, it is submitted, more tersely sets out the rule ; namely, that the law, which is man's superior, acting more wisely than man, gives its license only to such persons as will not abuse it, so the subsequent abuse simply shows the person not to have been licensed. But man's license cannot be so treated, having in fact passed to the particular person, while the law's license never did pass. § 394. Nature of Abuse. — The abuse of the law's license, which will render the party a trespasser ab initio, must con- sist of something more than a mere mistake or a mere evil intent, it must be some seriously wrongful or illegal act.^ Generally an omission to do something will not suflEtce ; ^ as, after entering a hotel and drinking wine therein, not paying for it.* But a negative wrong may be such in nature and extent as to become in effect a positive one ; so that, for ex- ample, where it is the duty of the particular officer serving a writ to return it, one cannot justify the trespass imder the writ unless he has made the return.^ 1 Savage, C. J. in Allen ». Crofoot, * Gardner v. Campljell, 15 Johna. 6 Wend. 506, B09. 401. 2 Gates ». Lounsbury, 20 Johns. 427; * Six Carpenters Case, 8 Co. 146 a. Taylor v. Jones, 42 N. H. 25 ; Page v. ^ Freeman v. Blewitt, 1 Salk. 409, 1 De Pay, 40 111. 606 ; Stonghton v. Mott, Ld. Baym. 632 ; Girling's Case, Cro. 25 Vt. 668. Car. 446 ; Williams *. Ives, 25 Conn. 168 568. CHAP. XXI.] TRESPASS TO PROPERTY. § 395 § 395. Hie Doctrine of this Chapter restated. One of the methods by which a man may injure another as to property is to commit upon it a trespass. But this particu- lar form of injury does not essentially differ from others ex- cept in name. Therefore it is not in this volume proposed, under this title, to enter into the consideration of this partic- ular form of injury, but to look at all the injuries together further on, without special reference to their names. There is a peculiar doctrine, called trespass ab initio, to the effect that, whenever the law permits the doing of some specific thing which otherwise would be a trespass, it grants this permission only to such persons as will not abuse it. So that, whenever one abuses the law's license, he is deemed to have been ex- cepted out of its terms and never to have received it. Though what he did at the beginning would have been justifiable if he had done nothing more, the doing of the more makes him a trespasser ab initio. 169 398 "WBONGS WITH PAETICULAB NAMES. [BOOK III. CHAPTER XXn. CONVEKSION OP GOODS. § 396. Relation of Subject to Procedure. — To properly comprehend this subject, it is necessary. to consider some- thing of the common-law forms of action beyond what is said in the last chapter. Thus, — § 397. Trover — is the ordinary common-law action for a conversion of chattels. It proceeds on the idea that the de- fendant hzA found the chattel and appropriated it to himself.^ But, in the actual administration of the law, the element of finding is utterly disregarded, the plaintiff need not prove it ; for example, if the goods came into the defendant's hands by trespass,^ by an innocent purchase from a thief ^ or other wrongful possessor,* or by a bailment,* he may waive the tres- pass or other special matter and sue in trover, the same as though there had been a finding in fact. Yet to maintain this particular action, he must have a right both to the prop- erty and to the possession of it.* If he has a title in abey- ance, he may recover in son^e other form of action ; ^ so that, for our present purpose, we may as well consider the action to be trover as anything else. Now, instead of trover, — § 398. Replevin. — If the goods have been taken wrong- 1 1 Chit. PI. 146. * Simmons ». Sikes, 2 Ire. 98 ; Ewart ' Glenn v. Garrison, 2 Harrison, 1 ; ». Eerr, Bice, 203. Prescott V. "Wright, 6 Mass. 20 ; Pierce ' Pjrae o. Dor, 1 T. R 55 ; Gordon V. Benjamin, 14 Pick. 356 ; Burgin v. v. Harper, 7 T. R. 9 ; Owen v. Knight, Bnrgin, 1 Ire. 453. 4 Bing. N. C. 54 ; Jefferies v. Great » NewMrk v. Dalton, 17 lU. 413. Western By. 6 Ellis & B. 802 ; Bradley * Eiley v. Boston Water Power Co. v. Copley, 1 C. B. 685. 11 Cosh. 11. ' Mears v. London, &c. By. 11 C. B. N. 8. 850. ITO CHAP. XXII.] CONVERSION OP GOODS. § 401 fully ,1 or, in some of our States, detained wrongfully ,2 the owner who is entitled to possession may maintain replevin, an action wherein he regains the goods themselves. But this action is not available in every case within the scope of the last section, and practically it can be employed only where the oflBcer serving the writ can put his hands on the goods to retake them. § 399. intimate Ownership. — K the party reclaiming the goods elects replevin, a judgment in his favor determines the ownership to be in him as against the defendant. Of course, while the action is. pending, the question is in abeyance. It is equally in abeyance if he brings trover. But the judgment in trover is, when satisfied, an investing of the defendant with the title.8 And it plainly enough takes effect as of the time of the original conversion.* Hence, — § 400. Nature of Conversion. — Since, during the pendency of either form of the suit for conversion, the title is thus in abeyance, and in the eye of the law the ownership is uncer- tain, the act which the law terms conversion must take place without any legal transmutation of the property right. It is simply, like a trespass, which indeed it may in form be, a wrong to the owner of the chattel, inflicted on the chattel itself.^ Hence, also, — § 401. Retnrn of Converted Chattel — In principle. One who has converted another's chattel without changing it in form 1 Geoige V. Chambers, 11 M. k W. harmony with cases cited in the last 149, 159, 160 ; Acker v. Campbell, note. 23 Wend. 372 ; Mennie v. Blake, 6 * Cooper v. Shepherd, 3 C. B. 266 ; Ellis & B. 842 ; Galloway v. Bird, 12 Foreman v. Neil^on, 2 Bich. Eq. 287 ; Mooie, 547 ; Ely v. Ehle, 3 Comst. Bogeis v. Moore, Bice, 60 ; Robertson 506. V. Montgomery, Rice, 87 ; Chartran ' Simpson v. McFarland, 18 Kck. v. Schmidt, Rice, 229 ; Osterhout v. 427 ; Dagan v. Nichols, 125 Mass. Roberts, 8 Cow. 48 ; Hepbnm v. Sewell, 576 ; Badger v. Phinney, 15 Mass. 359 ; 5 Har. & J. 211 ; Spivey v. Morris, 18 Esson V. Tarbell, 9 Cash. 407 ; Eggleston Ala. 254 ; Smith «. Alexander, 4 Sneed, V. Mnndy, 4 Mich. 295 ; Sawtelle v. Rol- 482. lins, 23 Maine, 196 ; Crocker v. Mann, * Bnckland v. Johnson, 15 C. B. 145, 3 Misso. 472 ; The State v. Jennings, 14 18 Jur. 775. Ohio State, 73. "Every nnlawftil de- * That conversion may exist withont tention is a taking." Lord Denman, a transmutation of the ownership, see C. J. in Evans v. Elliott, 5 A. & E. Eeyworth v. Hill, 3 B. & Aid. 685, 142, 146, a proposition not in apparent 688. 171 §401 WEONCfS WITH PABTICULAE NAMES. [BOOK III, or otherwise permanently injuring it may, at any time before suit, return it in its original condition ^ as of right ; for, since the owner's claim is that the chattel remains his, and the law affirms this claim on condition that the facts are as he holds them to be, he could not refuse to receive it without thereby relinquishing his right of action for the wrong. To say that the chattel is not his would be to disclaim any ground of com- plaint. If in effect it was destroyed, though the physical sub- stance remained, he could well deny that the thing offered was the thing which he claimed. In matter of settled doO' trine, an accepted jpturn does not bar the action of trover, but it mitigates the damages.^ As to what is thus set down on principle, the adjudications are from their very nature fragmentary, leaving more or less of the ground uncovered. We have some contrary dicta ;^ and, on the other hand, where the conversion was simply what is implied from a refusal to return the chattel on demand, a subsequent offer of return was held to take away the right itseK to the action of trover,* But in the cases in contemplation at the opening of this sec- 1 Hart V. Skinner, 16 Vt. 138 ; Green v. Speny, 16 Vt. 390. 2 Gibbs V. Chase, 10 Mass. 125, 128 ; Greenfield Bank v. Leavitt, 17 Pick. 1 ; Wheelock v. Wheelwright, 5 Mass. 104 ; Easton v. Woods, 1 Misso. 506 ; Smith V. Downing, 6 Ind. 374 ; Sparks v. Purdy, 11 Misso. 219 ; Yale ». Saun- ders, 16 Vt. 243; Sank v. Bank, 5 Barr, 211. ' For example, in Gibbs «. Chase, snpra, Scwall, J. says : "He who inter- feres with my goods, and without any delivery by me, and without my con- sent, undertakes to dispose of them, as having the property, general or special, does it at his peril to answer me the value in trespass or trover, and even a subsequent tender of the goods will not excuse him if I choose to demand the value." And see Brewster v. Silliman, 38 N. Y. 423, 428 ; Higgins v. Whit- ney, 24 Wend. 379, 380. If one hires a horse to drive five miles to A, but after starting concludes to drive five 172 miles to B instead, he commits the tort of converting the animaL Post, § 405. Should now the owner, wishing to sell it, and ascertaining the hirer's change of purpose, refuse to receive it on his return uninjured, and demand its value, would any court sustain him ? In rea- son, the owner had simply suffered nomi- nal damages for the technical conversion. He could not say, in answer to the ten- der in return, " This is not the creature I lent you." The law would tell him, assuming the facts to be as thus stated, " If you accept this tender, you do not waive your damages ; but, if you r^ect it, and the jury believe as you do that this is the horse you lent, remaining in the same condition as when yon lent it, yon disclaim the very ownership on which you rely for the damages incurred by the conversion." ' Hayward e. Seaward, 1 Hoore & S, 459 ; Wells v. Kelsey, 16 Abb. Pr. 53 ; Powers v. Bassford, 19 How. Fr. 309. CHAP, xxn.] CONVEKSrON OP GOODS. §403 tion, the offer would not have such effect ; since the accepted return would not, because operating only to reduce the damages. § 402. Return dming Suit — While the trover suit is pend- ing, the court may, in its discretion, permit the defendant to return to the plaintiff the chattel,^ paying the accrued costs of suit, and thereupon it will stay the proceedings,^ or allow the plaintiff to go on and recover more if he can.^ Practically this order will be limited to cases free from complications ; as, where it is plain what chattel is meant, where special dam- ages are not claii^ed, and where prices do not fluctuate.* To proceed, enlightened by these preliminaries, — § 403. Defined. — A conversion of a chattel is any dealing with it which impliedly or by its terms excludes the dominion of the owner.^ For example, — 1 1 Tidd Ft. 8th ed. 571 ; Rogers o. Crombie, 4 GreenL 274. 2 Fisher o. Prince, 3 Bur. 1363. ' Rntland, &c. Rid. v. Bank of JGddlebuiy, 32 Vt. 639; Peacock v. Kickolds, 4 Jar. 368, 8 DowL P. G. 367. * Fisher n. Prince, snpra ; Tucker V. Wright, 11 Mobre. 500; Whitten V. Fuller, 2 W. Bl. 902 ; Makinson e. Bawlinson, 9 Price, 460 ; Gibson v. Humphrey, 1 Cromp. & M. 544. S I am not aware that there is any particular form of the definition which has become standard. In Hiort v. Bott, Law Rep. 9 Ex. 86, 89, Bram- weU, B. observed: "Mr. Bosanqnet gave a good description of what con- stitutes a conversion when he said that it is where a man does an unauthorized act which deprives another of his prop- erty permanently or for an indefinite time." In another case, it being laid down that a mere trespass, sufficient to sustain the action of trespass, is not enough, Alderson, B. added: "Any asportation of a chattel for the use of the defendant or a third person amounts to a conversion ; for this simple reason, that it is an act inconsistent with the general right of dominion which the owner of the chattel has in it, who is entitled to the use of it at all times and in all places." Fouldes ». Willonghby, 8 M. & W. 540, 548. "The word 'convert' is well known to lawyers, and it means that, where any man who is entnisted with goods of another puts them into the hands of a third person contraiy to his orders, he converts them." Pollock, B. in Reg. v. Wynn, 16 Cox C. C. 231, 233. He adds that this was decided in Syeds v. Hay, 4 T. R. 260 and Wilbraham v. Snow, 2 Saand. 47 a. " It is generally laid down that any act which is an inter- ference with the dominion and right of property of the plaintifi' is a convei-sion, but this requires some qualification." Blackburn, J. in Hollins v. Fowler, Law Bep. 7 H. L. 757, 766. "Detain- ing goods so as to deprive the person entitled to the possession of them of his dominion over them." Martin, B. in Burronghes v. Bayne, 5 H. & N. 296, cited by Brett, J. in Hollins -o. Fowler, supra, at p. 780. See, further, Bristol V. Burt, 7 Johns. 254 ; Boyce v. Brock- way, 31 N. Y. 490 ; Reynolds v. Shu- ler, 5 Cow. 323, 325 ; Fuller v. Tabor, 39 Maine, 519. 178 § 406 WEONGS WITH PABTICULAB NAMES. [BOOK III. § 404. Selling. — If one, either innocently or fraudulently, sells as his own another's chattel, both he and the purchaser severally convert it.^ § 405. Tbingg under Bailment. — A carrier who, without ex- cuse, delivers the goods to the wrong person, converts them.^ One converts a thing which he has hired if he uses it for a purpose not contemplated ; ' as, if the hirer of a horse drives it further than was agreed or in a different direction,* or the hirer of a carriage does the like with it.^ Ordinaiily, for ex- ample, if the horse dies while thus converted, the wrong-doer must pay its full value to the owner,® or pay the damages if injured,' — a rule applicable to all chattels.* Again, — § 406. Demand and Refusal. — If one has in possession an- other's chattel, however lawfully, and thereupon determines to " exclude the dominion of the owner," as expressed in our definition,® he converts it. A refusal to deliver it up on de- mand is, therefore, not in itself a conversion, but is evidence i* of it more or less conclusive according to the circumstances ; commonly, if absolute, it is sufficient prima facie?^ There 1 HoUins V. Fowler, Law Rep. 7 H. Texas, 449 ; Claflln v. Boston, &c. Rid. L. 757, in which the proposition appli- 7 Allen, 341 ; Taylor v. , 2 Ld, cable to the particular facts was, that Eaym. 792. "any person who, however innocently, * Bell v. Cammingg, 3 Sneed, 275; obtains possession of the goods of a per- Buchanan v. Smith, 10 Hun, 474 ; Lane son who has been fraudulently deprived v. Cameron, 38 Wis. 603. of them, and disposes of them, whether * Ante, § 76 ; Ray v. Tubbs, 50 Vt. for his own benefit or that of any other 688 ; Freeman v. Boland, 14 R. I. 39 person, is guilty of a conversion," Woodman ». Hubbard, 5 Fost. N. H p. 795, the case of the purchaser not 67 ; Fish o. Ferris, 5 Duer, 49 ; Di» being also before the court ; Koe v. ■ brow v. Tenbroeck, 4 E. D. Smith, 397 ; Campbell, 40 Hun, 49 ; Scudder ». An- Rotch v. Hawes, 12 Pick. 136. derson, 54 Mich. 122 ; Riley v. Boston ■ » Hart v. Skinner, 16 Vt. 138. Water Power Co. 11 Ciish. 11 ; Champ- • Wheeloek v. Wheelwright, 5 Mass. ney ■». Smith, 15 Gray, 512 ; Jones v. 104 ; Ray v. Tubbs, supra. Thurloe, 8 Mod. 172 ; Cooper v. Wil-' ' Homer v. Thwing, 3 Pick. 492 ; lomatt, 1 C. B. 672 ; Loeschman t. Lucas v. Tmmbnll, 15 Gray, 306. Machin, 2 Stark. 311 ; Glaspy v. Cabot, 8 Columbus v. Howaid, di Ga. 213 ; 133 Mass. 435 ; Murray v. Burling, 10 Lewis v. McAfee, 32 Ga. 465.) Johns. 172 ; Kimball v. Billings, 55 » Ante, § 403. Maine, 147 ; Briggs v. Boston, &c. Rid. i' Morris v. Pugh, 3 Bur. 1241-, 1243, 6 Allen, 246 ; Branch v. Planters Loan; " Goli^tly ». Reynold^, Lofft, 88 &c. Bank, 75 Ga. 342. Philpott v. Kelley, 3 a7 & E. 106 * Jeffersonville Rid. v. White, 6 Mitchell i>. Williams, 4 Hi^ N. Y. 13 Bush, 251 ; Roberts v. Yarboro, 41 Davies v. Nicholas, 7 Car. & P. 339 ; 174 CHAP. XXn.] CONVERSION OP GOODS. § 408 are even cases wherein, as viewed by some courts if not all, the denial of right to the owner making the demand is itself in law a conversion ; " for," said Holt, C, J. " what is a con- version but an assuming upon one's self the property and right of disposing another's goods, and he that " does this " takes upon himself the right of disposing of them." ^ On the other hand, the facts may justify a temporary detaining after de- mand ; ^ as, where in good faith the possessor questions the authority ^ or ownership * of the person demanding, or where for some good reason he is unable to make instant restitution.^ § 407. other Examples — abound in the books, but the fore- going show sufficiently the nature of the doctrine. § 408. The Doctrine of this Chapter restated. Where one by contract transfers his goods to another, the transmutation of the title is an ordinary rightful occurrence. But there may be a tortious transmutation. It commonly, but not always or necessarily, occurs where one acts under a claim of right. Then if tlie parties ask the court to settle their misunderstanding, the judge does not know, in advance of the steps which ascertain the facts, in which party was the original ownership, and whether or not there was a conver- sion. He simply calls it a conversion for the one who is not the owner to so deal with the thing as to exclude the owner's dominion over it. And the effect of the litigation will in some instances be to transmute the wrongful conversion into a rightful one ; confirming the ownership in the wrong-doer, and compensating the injured person. Magee v. Scott, 9 Cash. 148; Dietus & R. 495, 1 Gale, 244 ; Canot o. Hughes, V. Fnss, 8 Md. 148 ; Allen i>. Ogden, 1 2 Bing. If . C. 448 ; Garvin v. Lnttrell, Wash. C. C. 174 ; Folsom v. Manchester, 10 Humph. 16 ; Butler v. Jones, 80 Ala. 11 Gush. 334. 486. 1 Baldwin v. Cole, 6 Mod. 212 ; » Ingalls v. Bnlkley, 15 111. 224. Hinckley v. Baxter, 13 Allen, 139 ; * "Wellington ■/. Wentworth, 8 Met. Pollen V. Bell, 40 Maine, 314 ; Davis 548. V. Taylor, 41 111. 405 ; Farraro. Chauffe- « Beckman v. McKay, 14 Gal. 250 ; tete, 5 Denio, 527 ; O'Donoghue v. Cor- Whitney v. Slauson, 30 Barb. 276 ; by, 22 Mo. 393, 394. Fillmore v. Horton, 81 How. Pr. 424 ; 2 Verrall o. Robinson, 2 Cromp. M. Buck ». Ashley, 37 Vt 475. 175 § 411 WRONGS WITH PARTICULAR NAMES. [BOOK III. CHAPTER XXm. NUISANCE. § 409, 410. Introduction. 411-422. In General. 423-426. Some Particular Ifuisances. 427-431. Something of Remedy. 432. Doctriue of Chapter restated. § 409. Here — Elsewhere. — To avoid repetitions, this chap- ter will be limited to the general principles of its subject, and to the particular nuisances which are not explained in other connections. Nuisances to public and private ways, for ex- ample, and some others, are within chapters further on. § 410. How Chapter divided. — We shall here consider, I. In General of the Subject ; II. Some Particular Nuisances ; III. Something of the Remedy. I. In 0-eneral. § 411. Defined. — A nuisance, of the sort which is redressed at the suit of the party, is anything, done on one's premises or elsewhere, or put into circulation, or omitted to be done contrary to a legal duty, wherefrom, through the separate ac- tion of nature or of the common course of events, an injury follows to or directly menaces another ; or, it is any indictable nuisance which has wrought a special harm to the individual.^ For example, — 1 The hooks do not abound in defi- neglect the product of which works an nitions of this wrong, whether viewed annoyance or injury to the entire com- as a civil one or a criminal. The pres- tnunity ; or, the product itself is termed ent author has defined an indictable or a nuisance." 1 Bishop Crim. Law, common nuisance to he " any act or § 1072. Blackstone gives one defini- 176 CHAP, xxin.] NUISANCE. §412 § 412. On Own Land. — It is a plain proposition in the abstract, yet not always easy of application,^ that a man may put whatever erection or thing he will on his own land, or do upon it whatever else he pleases, but he must not even touch his neighbor's soil or otherwise interfere with his rights. At the same time, it is impossible for a person to do anything without employing Nature as his servant and assistant. One could not walk if the gravitation of nature did not aid him, or build a house without the help of some of nature's laws. Therefore when a man takes the natural laws into his employ, as he must nece^arily do whenever he performs any act on his own soil, he becomes responsible for what those laws col- laterally accomplish. So that, if anything which he there does or erects results, through the natural laws combining, in injury to a neighbor in the proper use and enjoyment of his property, it is a nuisance.^ A privy so built that its filth per- colates into the adjoining owner's well,^ a tree so planted that its roots run into the well and pollute it,* a cesspool that ac- tion, coTering both the public and pri- vate nuisance ; namely, " Nuisance, noeumerUum, or annoyance, signifies anything that worketh hurt, incon- venience, or damage." 3 Bl. Com. 216. And this definition has been much fol- lowed by subsequent writeis and judges. The objection to it is, that it means nothing definite ; for example, a rifle ball that kills a man "worketh hurt," bnt it is not commonly classed with the nuisances. And see Coker v. Birge, 9 6a. 425 ; Norcross v, Thoms, 51 Maine, 503 ; Miller v. Burch, 32 Texas, 208 ; Cooper V. Hall, 5 Ohio, 320, 323 ; Co- lumbus Gas-light, &c. Co. v. Freeland, 12 Ohio State, 392, 397. A captious critic might turn my criticism of Black- stone's definition upon my own, but I think not justly. The difficulty of de- fining nuisance is obvious ; it grows in part out of the fact that many wrongs are indifferently termed nuisance or something else, at the convenience or whim of the writer. Thus, injuries to ways, to private lands, various injuries 12 through negligence, wrongs harmful to the physical health, disturbances of the peace, and numberless other things are often or commonly spoken of as nui- sances while equally they are called by the other name, and the other name may include other things also which are not nuisances. The idea of a nuisance appears to be, that something is put out, or left out, or not taken in, which some law of nature or course of common events operates upon, to work hurt, in distinc- tion from the thing itself working hurt throngh its own inherent forces. 1 Ante, § 98, 99. 2 Grady v. Wolsner, 46 Ala. 381 ; Dennis v. Eckhardt, 3 Grant, Pa. 390 ; Moriey v. Pragnell, Cro. Car. 510 ; Cleveland ». Citizens Gas-light Co. 5 C. E. Green, 201 ; Attorney-General ». Steward, 5 C. E. Green, 415. « Hangh's Appeal, 6 Out. Pa. 42 ; Knauss v. Brua, 11 Out. Pa. 85 ; BaU c. Nye, 99 Mass. 582. * Buckingham v. Elliott, 62 Missis. 296. 177 § 413 WBONGS WITH PAHTICULAE NAMES. [BOOK HI. complishes a like mischief to the well,i any noxious substance which is washed into it by the rain,^ water collected in a cel- lar which percolates into a neighboring cellar,^ the fouling of a stream of water to the use whereof another is entitled,* the damming up of the stream so as to diminish the flow of water ,^ the creating of foul odors® or dust and noise ^ or smoke ^ which the winds bear to a neighboring dwelling- house, — these are severally specimens of things which, if done by one on his own land, are actionable nuisances to the other who is injured thereby. So — § 413. Dangerous Article. — It is a nuisance, which is also treated as negligence,^ to send out into the community a thing liable to be used by persons ignorant of its nature to their injury; and, if one not himself chargeable with negligence receives harm from it, he has his action against the sender.^ Something like this was considered under the title Deceit.^i Therefore, if a manufacturer sells naphtha to a retailer, igno- rant of its explosive qualities^ to be dealt out to persons equally ignorant, for use in ordinary lamps, a purchaser who confidingly receives it for the purpose and is injured by an explosion has his action against the one who thus put it in circulation.^ It is the same of a ferocious or noisy dog which the owner, cognizant of its habits, permits to go at large.^ Agaia — 1 Norton ». Scholefield, 9 M. & W. Jur. N. s. 161 ; Crump v. Iiambert, Law 6SS. Eep. 3 Eq. 409; Beir v. Cooke, 37 ^ Brown p. Illius, 27 Conn. 84. Hun, 38. » Snow V. Whitehead, 27 Ch. D. » Post, § 483. 588. i» Thomas «. "Winchester, 2 Selden, * Hodgkinson v. Ennor, 4 Best & S. 397 ; Davidson v. Nichols, 11 Allen, 229 ; Stodkport Waterworks «. Potter, 614, 519 ; McDonald v. Snelling, 14 7 H. & N. 160, 7 Jur. n. s. 880. Allen, 290, 295 ; Shillito v. Thompson, 6 Eaikes v. Townsend, 2 Smith, 9. 1 Q. B. D. 12 ; The State v. Taylor, 29 « Illinois .Cent. Rid. v. Grabill, 50 Ind. 517. 111. 241 ; Aldied's Case, 9 Co. 57 6 ; " Ante, § 321. Ottawa Gas-light, ;&c. Co. ■». Thompson, 12 Wellington v. Downer Ker. Oil Co. 39 IlL 598 :; Bay b. Whitman, 100 104 Mass. 64, referring, among other Mass. 76. cases, to Farrant ». .Barnes, 11 C. B. ' Fish V. Dodge, 4 Dcnio, 311 ; N. s. 553, 8 Jur. N. s. 868 ; George ». Bishop V. Banks, 33 Conn. 118 ; David- Skivington, Law Eep. 5 Ex. 1. And son i;. Isham, 1 Stock. 186. see Hourigan v. Nowell, 110 Mass. 8 Rich V. Basterfield, 4 C. B. 783 ; 470. Simpson v. Savage, 1 C. B. N. s. 347, 3 i» Putnam v. Fayn^ 13 Johns. 312 ; 178 CHAP. XXin.J NUISANCE. § 416 § 414. Contagioas Disease. — Anything which exposes peo- ple to a contagious disease is a nuisance,^ giving the person injured a right of action ; as, to let a house knowing it to be laden with small-pox, yet concealing the fact, and one is in- fected ; * to take children to a boarding-house, knowing them to have whooping-cough, and thus transmit it to other chil- dren; ^ for an inn-keeper to receive a guest while another guest is sick in his house with small-pox, thus communicating to the former tiie^ disease.* The mere negative — § 415. Ne^ect — to do a legal duty is, when the necessary evil consequences, follow, a nuisance.^ Thus, if a building is burned, leaving dangerous walls standing, the owner should tear them down or make them secure ; neglecting which, he is liable to a person injured by their falling into the street.® So one is liable for neglecting to make repairs, contrary to his duty, resulting in a nuisance.^ § 416. Natnre of Haim. — It is immaterial what the harm is which results to the complaining party ; any sort will suf- fice, if the other necessary ingredients combine with it.* A proper condition of the atmosphere, for example, is necessary to human life and comfort ; and it is little else than repeti- tion 8 to say that to disturb it by noise, especially of the disa- greeable sort, or uncomfortably loud,^** or to render it offensive to the senses or injurious to health,"^ is an actionable nui- Brill 0. Flagler, 23 Wend. 354 ; ttnck- Freeland, 12 Ohio State, 392, 399 ; ley c Smeison, 4 Cow. 351. Cramp v. Lambert, Law Bep. 3 £q. > Meekerv.yanBensseIaeT,15Wend. 409, 413. 397. 9 Ante, § 412. 5 Hinor r. Sharon, 112 Mass. 477 ; w Ball o. Ray, Law Eep. 8 Ch. Ap. Cesar v. Karats, 60 K. Y. 229. 467 ; McCafliey's Appeal, 9 Out. Pa. » Smith V. Baker, 20 Fed. Bep. 253 ; Walker i-. Brewster, Law Eep. 5 709. £q. 25 ; Inchbald r. Robinson, Law Rep. * Gilbert v. Hoffinan, 66 Iowa, 205. 4 Ch. Ap. 388 ; Brill v. Flagler, 23 Wend. i Broder e. Saillanl, 2 Ch. D. 692 ; 354 ; Bishop v. Banks, 33 Conn. 118. Ross V. Clinton, 46 Iowa, 606 ; Sauls- " Morley v. Pragnell, Cro. Car. 510 ; bury V. Ithaca, 94 N. Y. 27. Hopkins t>. Western Pac. Bid. 50 Cal. " Church of Ascension «. Bnckhart, 190 ; Montezuma r. Minor, 73 Ga. 484 ; 3 Hill, N. Y. 193. And see Mullen v. Daughtry v. Warren, 85 K C. 136 ; St John, 57 N. Y. 567. Shaw v. Cnmniiskey, 7 Pick. 76 ; Boss ' Tenant v. Golding, 1 Salk, 21 ; v. Batler, 4 C. K Green, 294 ; Walter Alston i;. Grant, 3 Ellis & B. 128. r. Selfe, 4 De G. & S. 315, 15 Jar. 416 ; B Columbus Gas-light, &c Co. i;. Bab^ock r. New Jeisey Stock-yard Co. 179 § 418 WRONGS WITH PARTICULAR NAMES. [BOOK IH. sance. It is equally such to send through the air what will injure another's property ; as, by destroying vegetation.^ To cause a shaking and jarring of another's premises is a wrong of the same sort.^ And thus we might proceed through the whole circle of life before exhausting the illustrations. § 417. Harm only Impending. — Though equity sometimes enjoins a thing which merely threatens harm to a suitor,^ an action at law will not lie until actual injury has been in- flicted.* Therefore, to constitute an actionable nuisance, the wrong must have proceeded to the extent of doing to one some real detriment. But an assault, where the blow does not reach the body, is an actionable wrong, because of its dis- quieting effect upon the mind.* On a like principle, there may be, while yet there is not often, a suable private nuisance which has resulted in no tangible damages. The mere care- less keeping of gunpowder to the endangering of the public is indictable, while yet no one has been injured thereby,^ whence it follows that the same may be actionable.^ To build one's house so that water will be projected from the roof upon a neighbor's land is a nuisance which has suflBciently ripened before any rain has fallen.^ Anything so erected on one's own land as to overhang another's is a nuisance to him.^ Even if one constructs a bay-window so as to project over a street the fee whereof is in his neighbor, it is a private nui- sance to the neighbor, though no specific damage is shown to have been suffered.'" § 418. Useful Trades and Private Residences. — Two things essential to general prosperity and happiness are useful trades, whereby people are supplied with things necessary in life, and 5 C. E. Green, 296 ; Jarvis v. St. Lonis, Heeg v. Licht, 16 Hun, 257 ; Anony- &c. Ry. 26 Mo. Ap. 253. mous, 12 Mod. 342. 1 Campbell v. Seaman, 63 N. Y. 568 ; ' Ante, § 279, 355 ; post, § 424 ; Em- St. Helen's Smelting Co. v. Tipping, 11 cry v. Hazard Powder Co. 22 S. C. 476. H. L. Cas. 642, 11 Jur. N. s. 785. » Fay v. Prentice, 1 C. B. 828. And 2 McKeon v. See, 51 N. Y. 300 ; see Wilmarth v. Woodcock, 58 Mich. Demarest v. Hardham, 7 Stew. Ch. 469. 482 ; Copper v. Dolvin, 68 Iowa, 757. 3 2 Story Eq. § 862 ; post, § 428. » Meyer v. Metzler, 51 Cal. 14^; * Ante, § 22-34. . Grandona ». Lovdal, 70 Cal. 161. s Ante, § 190, 191, 194. »» Codman i>. Evans, 1 Allen, 443, 5 , " People II. Sands, 1 Johns. 78 ; Allen, 308. 180 CHAP. XXni.] NUISANCE. § 419 healiMul and peaceful dwellings. And the structures for habitation and trade cannot well be remote from one another. Here, therefore, ai"e two interests, travelling to one ultimate goal, yet in constant conflict during the journey. And the courts, in administering justice between them, necessarily require each to lay aside something of what pertains to mere convenience and comfort, yet they permit each to stand so far on its own rights as not to be destroyed.^ The question does not admit of a great deal of technical rule ; it is rather prac- tical, and moulded in its forms by the exigencies of the par- ticular case.2 As to the dwelling, " the real question in all the cases " is said to be the one '' of fact, namely, whether the annoyance is such as materially to interfere with the ordi- nary comfort of human existence." ^ Trifling inconveniences are not regarded.* But however useful and lawful the busi- ness, if, as carried on, it gives to the neighboring residents annoyance materially interfering with the ordinary physical comforts of life, it will be adjudged a nuisance.^ On the other hand, it is within the reason of the thing, and it ac- cords with the common course of the decisions and of the judicial dicta to say, that those who carry on the business will not be permitted to inflict even a less degree of annoy- ance needlessly, where its avoidance is fairly practicable.® Prominent among the things taken into the account in these cases is that of — § 419. Priority. — The early settlement of a neighborhood or town gives it, to a degree varying with the particular facts, a character not to be needlessly interfered with. One may ^ Sanderson r. Pennsylvania Coal ^ Cleveland v. Citizens Gas-light Co. Co. 5 Norris, Pa. 401 ; Daniels «. Eeo- 5 C. £. Green, 201 ; Attomey-Geneial knk Waterworks, 61 Iowa, 549 ; Mc- v. Steward, 5 C. E. Green, 415 ; Robin- Caffi«y's Appeal, 9 Oat. Pa. 253 ; son c. Bangh, 31 Mich. 290 ; Ottawa Daughtry v. Warren, 85 N. C. 136. Gas-light, &c Co. v. Thompson, 39 111. 2 St. Helen's Smelting Co. v. Tip- 598 ; Aldrich v. Howaid, 8 R. I. 246. ping, 31 H. L. Cas. 642, 11 Jur. x. s. ' Bahcock v. New Jersey Stock-yard 785 ; Gaunt v. Fynney, Law Bep. 8 Ch. Co. 5 C. K Green, 296 ; Stockport Ap. 8, 11 ; Bamfoid r. Tumley, 3 Best Waterworks t:. Potter, 7 H. & N. 160, & S. 62. 7 Jar. x. s. 880 ; Rosser v. Randolph, 7 » Lord RomiUy, M. R. in Oldham v. Port. 238 ; Green v. lake, 54 Uisais. Oldham, Law Rep. 3 £q. 404. 413. 540. * Gaunt V. Fynney, sapta. 181 § 420 WBONGS WITH PARTICULAR NAMES. [BOOK III. lawfully establish, remote from habitations, a useful business which would be a nuisance in a dense neighborhood, or erect in a locality away from nuisances an elegant dwelling-house ; under such circumstances that another building a house be- side the nuisance could not compel its removal, or setting up the nuisance beside the dwellingrhouse would have to take it away.^ And he who makes his habitation in a trading or manufacturing neighborhood or a dense city must not look forward to compelling the removal of the population and business, but must submit to the discomforts necessarily arising therefrom.^ On the other hand, a man should estab- lish his business in " a convenient place," to employ an ex- pression found in some of the English cases, so ascertained by the jury, in order to justify its necessary annoyance to neighboring dwellings.^ § 420. Grant — Prescription. — Plainly one may grant to another the right to. establish beside him a mere private nui- sance, not injurious to any other person.* Therefore, after the lapse of the necessary time, the other may have this right by prescription.^ But the prescription does not carry the authority to increase the offensive thing, while yet it does not preclude minor changes in mere form.® Nor can it au- thorize the continuing of an indictable public nuisance, since the commission of one crime does not empower the offender to commit another,' — a proposition sometimes a little modi- fied in favor of useful trades.® It follows, therefore, that one ^ Sanderson v. Penngylvania Coal Co. ^ Flight v. Thomas, 10 A. & E. 590 ; 5 Norris, Pa. 401 ; St. Helen's Smelt- Baxendale v. McMurray, Law Eep. 2 ing Co. V. Tipping, 11 H. L. Cas. 642, Ch. Ap. 790 ; ElUotson v. Feetham, 2 11 Jur. N. s. 786 ; Whitney v. Barthol- Scott, 174, 2 Bing. N. C. 134 ; Bucklin omew, 21 Conn. 213.; Cleveland o. v. Truell, 54 N. H. 122; Dana v. Val- Citizens Gas-light Co. 5 C. £. Green, entine, 5 Met. 8 ; Spiague u. Ehodes, 4 201. E. I. 301. * Rohinson v. Baugh, 31 Mich. 290 ; ^ Baxendale ». McMurray, snpra ; Rhodes v. Dnnhar, 7 Smith, Pa. 274. Ball -o. Ray, Law Eep. 8 Ch. Ap. 467 ; ' Hole V. Barlow, 4 C. B. N. 8. 334, Boston Rolling MiUs a. Cambridge, 117 4 Jur. N. s. 1019 ; Carey v. Ledhitter, Mass. 396. 13 C. B. N. s. 470 ; Bamford v. Turn- ' 1 Bishop Crim. Law, § 1078 a, ley, 3 Best & S. 62. 1131, 1139-1141. * Hewlina v. Shippam, 5 B. & C. » lb. § 1139-1141. 221 ; Corley v. Lancaster, 81 Ky. 171. 182 CHAP. XXm.] N0ISANCB. § 422 sued for a special injury to the plaintiff by a public nuisance cannot aid his defence from prescription.^ § 421. No Tiseful Purpose. — Where the thing which cre- ates annoyance has no useful purpose,^ and especially where it is in its nature harmful, the case is quite different from that of a beneficial trade. There is then no balancing of good on the one side against evil on the other. The collec- tion of a noisy crowd, with added music and fire-works, at an entertainment for profit,* or the setting up of a boisterously conducted circus,* whereby a neighboring dweller is dis- turbed ; the frightening away, by the firing of guns and other means, of customers from a trader ; ^ the opening of a bawdy- house next to a properly conducted dwelling,® — these, and various other injuries to private comfort, are severally ac- tionable nuisances, and they illustrate the principle. Yet precisely how much less of private damage will satisfy the courts in this class of cases than in the other it would be difficult to state in the form of a rule. § 422. Continuance. — Within the principle that a neglect may be a nuisance,^ it is in law the same offence for one to continue a nuisance wliich it is his duty to remove as to establish it in the first place, though under the com- mon-law rules there are differences as to notice and the procedure.^ 1 Ante, § 279, 355, 417 ; post, § 424 ; Beckwith v. Griswold, 29 Barb. 291 ; Mills V. Hall, 9 Wend. 315 ; Wright v. EosweU v. Prior, 12 Mod. ^35 ; Thomp- Moore, 38 Ala. 593. son v. Gibson, 7 M. & W. 456 ; MeCon- 2 Tanner v. Albion, 5 Hill, N. T. nel v. Kibbe, 29 111. 483 ; Plumer v. 121. Harper, 3 N. H. 88 ; Gandy v. Jubber, » Walker v. Brewster, Law Bep. 5 5 Best & S. 78 ; Shadwell v. Hutchin- Eq. 25. And see Eex o. Moore, 3 B. & son, 4 Car. & P. 333 ; McDonough v. Ad. 184. Gilman, 3 Allen, 264 ; Brown v. Cayuga, * Inchbald e. Eobinson, Law Eep. 4 &e. Eld. 2 Keman, 486 ; Knauss v. Ch. Ap. 388. Brua, 11 Out. Pa. 85 ; Hodges v. Hodges, 6 Tarleton v. MeGawley, Peoke, 205 ; 5 Met. 205 ; Beckley v. Skroh, 19 Mo. Gilbert v. Mickle, 4 Sandf. Ch. 357. Ap. 75 ; Slight v. Gutzlaff, 35 Wis. 6 Marsan v. French, 61 Texas, 173 ; 676 ; Grady v. Wolsner, 46 Ala. 381 ; Hamilton v. Whitridge, 11 Md. 128. Pinney ». Berry, 61 Mo. 359 ; Mc- ' Ante, § 41.5. Gowan v. Missouri Pae. By. 23 Mo. Ap. 8 Staple V. Spring, 10 Mass. 72, 74 ; 203. 183 § 425 WRONGS WITH PAKTICOLAE NAMES. [BOOK III. II. Some Particular Nuisances. § 423. What here. — For this sub-title to travel through the entire list of nuisances would be useless repetition. We shall only look at some particulars ; as, — § 424. Private from PubUc. — The rule governing these cases has already been stated to be, that, whenever one suf- fers specially from a crime,i and not merely as any other one of the public might, he may have his civil action of tort against the doer.^ The mass of indictable nuisances do not present facts to which this rule can be applied, but some do.^ For example, it is a nuisance of this sort to put any part of one's building upon the highway ; then, if the projection in- jures another man's building by its side,^the latter may have his action.* So likewise it is a public nuisance to obsti-uct a navigable stream ; thereupon, if one is by such an obstruction prevented from fulfilling his contract, he can maintain a civil suit against the obstructer.^ § 425. statntoiy. — If a statute or a municipal by-law, valid in law, authorizes a thing to be done, it is not a nui- sance though of a sort which would be such but for the au- thorization ; * for example, though it renders the neighborhood unhealthy.^ On the other hand, a like provision may make a thing a nuisance which was not at the common law.^ Or a 1 Explainad, ante, § 71. * Dudley v. Kennedy, 63 Maine, 465. 2 Ante, § 279, 355. And see Harmond v. Pearson, 1 Camp. " Rose V. Groves, 5 Man. & G. 613, 615. 7 Jur. 951 ; Honnsell v. Smyth, 7 C. B. « Ante, § 111-114 ; MiUer v. New N. s. 731, 6 Jnr. ir. s. 897 ; McLanchlin York, 109 U. S. 385 ; Sawyer v. Davis, V. Charlotte, &c. Eld. 5 Rich. 583 ; 136 Mass. 239 ; London, &c Ry. v. Carey ». Brooks, 1 Hill, S. C. 365; Truman, 11 Ap. Cas. 45; Lewis ». Stein, Yolo V. Sacramento, 36 Gal. 193 ; Crom- 16 Ala. 214 ; Attorney-General v. New melin p. Coxe, 30 Ala. 318 ; Wesson •». York, &c. Rid. 9 C. E. Green, 49 ; Dan- Washbum Iron Co. 13 Allen, 95 ; Lan- ville, &c. Rid. v. Commonwealth, 23 sing V. Smith, 4 Wend. 9 ; MUler v. Smith, Pa. 29. New York, 109 U. S. 385 ; Grisby v. ' Commonwealth v. Reed, 10 Casey, Clear Lake Waterworks, 40 Cal. 396 ; Pa. 275. Venard v. Cross, 8 Kan. 248 ; New s Bepley v. The State, 4 Ind. 264 ; Salem v. Eagle Mill, 138 Mass. 8 ; Gor- Sangamon Distilling Ca v. Yonng, 77 don V. Baxter, 74 N. C. 470. lU. 197. < Stetson V. Faxon, 19 Pick. 147. 184 CHAP, xxni.] NUISANCE. §426 nuisance may be committed by doing what a statute author- izes, in a manner contrary to the authorization.^ § 426. Enumeration. — It is not the name of a thing that makes it a nuisance, but its nature, the manner in which it is carried on, its proximity to other things, and its relations to the persons complaining.^ Useful trades and other beneficial works are nuisances or not according as these tests determine them to be. Some of them, within this principle, are a tin- smith's shop,^ a blacksmith's shop,* a pumping station for waterworks,^ a slaughter-house,® a tallow-furnace,^ a candle manufactory,^ a livery stable,^ smelting works,^" a rolling mill,'i a paper mill,^ a brick manufactory ,1^ a railroad in operation,^* any machinery run by steam power,i^ a manufactory of fer- tilizers,^® a gas-house,^^ a steam cotton press,^® a distillery ,i^ a soap factory,^ a tannery.^^ Things of a different sort, yet 1 Commonwealth ». Erie, &c. Rid. 3 Casey, Pa. 339 ; Cogswell u. New York, &c. Rid. 103 N. Y. 10. * Stiirges V. Bridgman, 11 Ch. D. 852 ; Dittman v. Repp, 50 Md. 516 ; Cooke V. Forbes, Law Rep. 5 Eq. 166. ' Dennis v. Eckhardt, 3 Grant, Pa. 390. « Bradley v. Gill, 1 Lutw. 29 ; Fau- cher V. Grass, 60 Iowa, 505 ; Whitaker V. Hudson, 65 Ga. 43 ; Whitney v. Bartholomew, 21 Conn. 213. ' Daniels v. Keokuk Waterworks, 61 Iowa, 549. 6 Somerville v. O'Neil, 114 Mass. 353 ; Fay v. Whitman, 100 Mass. 76 ; Boshnell v. Robeson, 62 Iowa, 540 ; Babcock v. New Jersey Stock-yard Co. 5 C. K Green, 296 ; Attorney-General V. Steward, 5 C. E. Green, 415 ; Dubois V. Budlong, 10 Bosw. 700. ' Morley v. Pragnell, Cro. Car. 510. 8 Tohayles Case, cited Cro. Car. 510. 9 Aldrich V. Howard, 8 E. I. 246 ; Hastings v. Aiken, 1 Gray, 163 ; Kirk- man V. Handy, 11 Humph. 406 ; Coker V. Bii^, 10 Ga. 336 ; Dai^gan v. Wad- dill, 9 Ire. 244 ; Aldrich v. Howard, 7 K. I. 87. '0 St. Helen's Smelting Co. v. Tip- ping, 11 H. L. Cas. 642, 11 Jur. N. s. 785. " Scott V. Firth, 4 Fost. & F. 349. 1^ Bazendale v. McMurray, Law Rep. 2 Ch. Ap. 790. 18 Wanstead v. Hill, 13 C. B. N. s. 479, 9 Jur. N. s. 972 ; Walter v. Selfe, 4 De G. & S. 315, 15 Jur. 416 ; Beard- more V. Tredwell, 3 Gif. 683, 9 Jur. n. s. 272 ; Bamford v. Tumley, 3 Best & S. 62, 9 Jur. N. s. 377 ; Carey v. Ledbit- ter, 13 C. B. N. s. 470. " First Baptist Church v. Schenec- tady, &c. Rid. 5 Barb. 79 ; Handle v. Pacific Rid. 65 Mo. 325; Geiger v. Filor, 8 Fla. 325 ; Baltimore, &c. Rid. V. Fifth Baptist Church, 108 U. S. 317. »5 McKeon v. See, 4 Rob. N. Y. 449 ; Davidson v. Isham, 1 Stock. 186 ; Sal- tonstall V. Banker, 8 Gray, 195 ; Dema- rest V. Hardham, 7 Stew. Ch. 469. " Fertilizing Co. ■». Hyde Park, 97 U. S. 659. " Ottawa Gas-light &,c. Co. v. Thomp- son, 39 111. 598 ; Carhart v. Auburn, &c. Co. 22 Barb. 297. '8 Ryan v. Copes, 11 Rich. 217. w Greene v. Nunnemacher, 36 Wis. 50 Smith V. McConathy, 11 Misso. 517. 20 Howard v. Lee, 3 Sandf. 281 Brady v. Weeks, 3 Barb. 157. 21 Howell V. McCoy, 3 Rawle, 256 Eex V. Pappinean, 1 Stra. 686. 185 § 429 WRONGS WITH PARTICULAR NAMES. [BOOK III. within the same principle, are a drain or sewer,^ a dock,^ a mill or other artificial pond,^ a privy,* a cattle-pen,^ a tomb or cemetery.® These are but illustrations of universal doctrine. III. Something of the Remedy. § 427. Here. — It is not proposed to depart, in this place, from the rule which limits our elucidations to the law, in distinction from the procedure. But the peculiar nature of nuisance requires, for a proper understanding of the law, something under the present sub-head. Besides the suit at law for damages, we havcj as a familiar remedy, the equity — § 428. Injunction. — Equity, in circumstances which bring the case within its principles, will enjoin a private nuisance, whether it is also a public one or not, but not in every case as of course.'^ § 429. Judicial Abatement. — In the flexible proceedings in equity, an abatement of the nuisance,^ or its equivalent ' — 1 Sturges V. Theological Ed. Hoc. 549 ; Sampson u. Smltli, 8 Sim. 272, 2 130 Mass. 414 ; Vale Mills v. Nashua, Jur. 563 ; Crowder o. Tinkler, 19 Ves. 63 N. H. 136 ; Morse v. Fair Haven 617 ; Martin v. NutHn, 2 P, Wms. East, 48 Conn. 220 ; Burton v. Chatta- 266 ; Cadigan v. Brown, 120 Mass. 493 ; nooga, 7 Lea, 739 ; Shaw v. Qummiskey, Cramp v. Lambert, Law Kep. 3 Eq. 7 Pick. 76. 409 ; Euff v. PhilUps, 50 Ga. 130 ; 2 Larson*. Furlong, 63 Wis. 323. Daughtry, v. Warren, 85 N. C. 136; * Brookfield v. Walker, 100 Mass. Wilmarth v. Woodcock, 58 Mich. 482 ; 94 ; Welton v. Martin, 7 Misso. 307 ; Emory ». Hazard Powder Co. 22 S. C. Gilbert v. Morris Canal, &c. Co. 4 Halst. 476 ; Attorney-General v. Cambridge Ch. 495 ; Attorney-General v. Perkins, Consum. Gas Co. Law fiep. 6 Eq. 282, 2 Dev. Eq. 38. 4 Ch. Ap. 71 ; Georgia Chem. &c. Co. v. 1 Band v. Wilber, 19 Bradw. 395 ; Colquitt, 72 Ga. 172 ; Green v. Lake, AUen V. Smith, 76 Maine, 335. 54 Missis. 540 ; Payne v. McKinley, 54 * Illinois Cent. Bid. v. Grabill, 50 Cal. 532 ; Parrott v. Floyd, 54 Cal. 534 ; 111. 241, 248. Hacke's Appeal, 5 Out. Pa. 245 ; Cook * Barnes v. Hathom, 54 Maine, 124 ; v. Bath, Law Eep. 6 Eq. 177 ; Field v. Begein v. Anderson, 28 Ind. 79 ; Mus- West Orange, 9 Stew. Ch. 118 ; Lowe v. grove V. Catholic Church of St. Louis, Holbrook, 71 Ga. 563 ; Burwell v. 10 La. An. 431 ; New Orleans v. War- Vance, 93 N. C. 73 ; Callanan v. Gil- dens, 11 La. An. 244. man, 107 N. Y. 360 ; Bell v. Biggs, 38 ' 1 Bishop Ciim. Proced. § 1417 ; La. An. 555 ; Learned v. Hunt, 63 Hand v. Wilber, 19 Bradw. 395, 397 ; Missis. 373. Daniels ». Keokuk Waterworks, 61 Iowa, ' Van Bergen v. Van Beigen, 2 ' Kelk V. Pearson, Law Eep. 6 Ch. Ap. 809. 186 CHAP. XXin.J NUISANCE. § 430 the injunction is in substance though not in form an abate- ment ^ — may be ordered. And we have statutes in a part or all of our States authorizing the court under its law ^ or equity jurisdiction, or not specifying which, to command and enforce the abatement.^ § 430. Private Abatement. — Contrary to the general rule that no man may personally enforce his rights, the law to a large degree allows people to abate, without invoking judicial sanction, nuisances which injure them, and, to an extent not quite definite, those which injure the public. Subject to qualifications, some of them not free from dispute, one may abate a nuisance of any sort from which he individually re- ceives a detriment,* or which is indictable by reason of being harmful to the public whereof he is a part.^ We have some unqualified judicial dicta to the effect that only one specially injured can abate a public nuisance.® But the cases in their actual facts are simply those wherein, for some particular reason, it might well enough be considered that private abate- ment should not be exercised ; as, if a man builds a horse- shed for use on Sundays while he is at church, standing in part on the public way as laid out but not as worked, an in- Johna. Ch. 272 ; Spragne «. Rhodes, 4 « Lonsdale v. Nelson, 2 B. & C. 302, R. I. 301 ; Vaughn v. Law, 1 Humph. 311 ; Perry v. Fitzhowe, 8 Q. B. 757 ; 123 ; Mississippi, &c. Rid. v. Ward, 2 Amoskeag, &c. Co. v. Goodale, 46 N. H. Black. 485, 492 ; Hoole v. Attorney- 53 ; Rung v. Shoneberger, 2 Watts, 23 ; General, 22 Ala. 190 ; The State v. Mo- Mason v. Csesar, 2 Mod. 65 ; Lancaster bile, 24 Ala. 701 ; Carlisle v. Cooper, 3 Turnpike v. Rogers, 2 Barr, 114 ; Mof- C. E. Green, 241. fett v. Brewer, 1 Greene, Iowa, 348 ; 1 See, for illustration. Tipping v. St. Harvard College v. Steams, 15 Gray, 1 ; Helen's Smelting Co. Law Rep. 1 Ch. Arundel v. McCuUooh, 10 Mass. 70. Ap. 66. Yet compare with Ruff v. Phil- » 1 Bishop Crim. Law, § 828, 1080, lips, 50 Ga. 130. 1081 ; Bumham v. Hotchkiss, 14 Conn. a Codman v. Evans, 7 Allen, 431 ; 311 ; Adams v. Beach, 6 HiU, N. Y. Cromwell i'. Lowe, 14 Ind. 234 ; Bemis 271 ; Wetmore v. Tracy, 14 Wend. 250 ; B. Clark, 11 Pick. 452. Day v. Day, 4 Md. 262 ; King v. San- 8 Buff V. Phillips, supra ; De Costa ders, 2 Brev. Ill ; Hart v. Albany, 3 V. Massachusetts, &c. Co. 17 Cal. 613 : Paige, 213 ; Meeker v. Van Rensselaer, Bear River, &c Co. ». Boles, 24 CaL 15 Wend. 397. 359 ; Thornton v. Smith, 11 Minn. 15 ; « Colchester v. Brooke, 7 Q. B. 339, Snow V. Cowles, 6 Post. N. H. 275 ; 376, 377 ; Godsell v. Fleming, 59 Wis. League v. Joumeay, 25 Texas, 172 ; 52 ; Brown v. Perkins, 12 Gray, 89, Gribben v. Hansen, 69 Iowa, 255 ; 101. Kothenberthal v. Salem, 13 Oregon, 604. 187 § 431 WRONGS WITH PABTICULAH NAMES. [BOOK III. different third person cannot tear down the part.^ When the courts hold that an individual without special interest cannot pull up a torpedo laid in a harbor to destroy a steamship just entering it laden with merchandise and peaceful himian freight, or remove a dynamite bomb from a street thronged with passing vehicles, or take from a railway track an ob- struction about to wreck a coming train of cars, or exercise any other act not in the line of villany, the present writer will consent to set down these dicta as law, beside the fact that civilization has departed from among us. In a judicial proceeding, from an obvious reason apart from this doctrine, a private individual cannot be the plaintiff seeking the abate- ment of a public nuisance not specially harmful to him.^ Now, further of — § 431. Limits of Docttlae. — This beneficial doctrine of private abatement has, like other general doctrines, its rea- sonable limits. Commonly, for example, when a building is kept as a nuisance, the abatement of the nuisance does not require the destruction of the structure, and to proceed so far would be unlawful.^ And in all cases there should be no needless injury to the property.* Where a building is itself a nuisance, it may, of course, be torn down ; but, if there are people dwelling in it, this cannot be done suddenly and with- out notice, to the breach of the peaceA Nor in any abate- ment is it lawful to break the peace.^ One may enter on his neighbor's land to abate a nuisance which the latter has erected there.'' But this liberty has been deemed not to ex- 1 Godsell V. Fleming, sapra. And * The State v. Moffett, 1 Greene, see Hopkins v. Crombie, 4 N. H. Iowa, 247 ; Indianapolis v. Miller, 27 520 ; Rogers v. Rogers, 14 Wend. Ind. 394 ; Northrop v. Burrows, 10 131. Abb. Pr. 365 ; Aaron v. Biuiles, 64 2 Payne v. McKinley, 54 Cal. 532 ; Texas, 316 j Finley v. Hershey, 41 Iowa, Parrott v. Floyd, 54 Cal. 534 ; Blood v. 389 ; Roberts v. Eose, Law Rep. 1 Ex. Nashua, &c. Rid. 2 Gray, 137 ; Ofstie 82, 89, 4 H. & C. 103, 12 Jur. N. s. 78 ; V. Kelly, 33 Minn. 440. Calef v. Thomas, 81 111. 478. » Ely V. Niagara, 36 N. Y. 297 ; * Perry v. Fitzhowe, 8 Q. B.^ 757, Welch V. Stoweli 2 Doug. Mich. 332 ; 776 ; Davies v. Williams, 16 Q. B. 546, Barclay «. Commonwealth, 1 Casey, Pa. 555, 556. 503. For what seems to have been * Day v. Day, 4 Md. 262. deemed an exception, see Meeker v. Van ' Baikes ». Townsend, 2 Smith, 9 ; Rensselaer, 15 Wend. 397. Jones v. WiUiams, 11 M. & W. 176 ; 188 CHAP. XXIII.J NUISANCE. § 432 tend to what comes from the neighbor's mere omission.^ There are cases in which, from their special nature, notice and request must precede the act of private abatement ; ^ as, for example, where the person is in the wrong oulj from be- ing the purchaser of the land whence the offence proceeds.* § 432. The Doctrine of this Chapter restated. To put out any act or thing whence any law of nature or common course of events carries, or creates a disquieting danger of carrying, harm to an individual or the public, is a nuisance, entitling one who has suffered therefrom to an ac- tion at law, or in many circumstances to a bill in equity, against the doer. But the harm must be substantial. And there is a difference whether it comes from a mere folly or even innocent recreation, or from the pursuit of a useful busi- ness. In the one case, the nuisance will be constituted by an annoyance less serious ; in the other, it will be considered that the business must be carried on somewhere while yet it may be restrained to its less offensive methods, and that the individual may properly be required to concede something to the public good. None of the useful trades are nuisances to the extent that they are everywhere and under all circum- stances to be suppressed. But any disturbing trade may be excluded, when the opposing interests are too much prejudiced by it, from a particular locality and especially from its more objectionable methods. One may ordinarily, without applying to the courts, take away — that is, abate — what another has put out, when he finds it a nuisance to him- self, but in so doing he must not commit a breach of the peace, or inflict on the author of the nuisance unnecessary injury. For the purpose of abating it he may, with some limitations, enter upon the land whence the offence proceeds. Rex V. Rosewell, 2 Salk. 459. See Grant ' Groff v. Ankenbrandt, 19 Bradw. V. Allen, 41 Conn. 156. 148 ; Thornton v. Smith, 11 Minn. 15 ; > Lonsdale v. Nelson, 2 B. & C. 302, Snow v. Cowles, 6 Fost. N. H. 275. 311. But see Morris, &c. Co. v. Eyerson, 3 2 Verder v. BUlsworth, 59 Vt 354. Dutcher, 457. 189 § 432 WEONGS WITH PAETIGULAR NAMES. [BOOK IH. And he may abate a public nuisance which is specially harm- ful to himself, or immediately dangerous to others. Whether a private person can go further in abating a public nuisance from which he suffers only as one of the public, or how much further, is a question upon which judicial opinions seem not to be quite uniform. But it is believed that, however con- trary to reason and the dictates of humanity the language of some of the cases may be, no bench of judges will actually mulct in damages, or send to prison as for crime, the man who rescues another from an immediate peril to life or even to property, by abating a public nuisance whence the danger impends; and that the more considerate will extend the right of privately abating public nuisances to whatever appears rea- sonable, and for the good order and safety of the community, in the particular instance. To deny to men the common rights of human brotherhood — to forbid one to do a kindly act for the good of others — does not accord with the spirit of our jurisprudence. 190 CHAP. XXIV.] NEGLIGENCE. §435 CHAPTER XXIV. NEGLIGENCE. § 433, 431. Introduction. 435-449. General Doctrine. 450-453. Negligence combining with other Causes. 454-457. Proxiniate and Remote Eflfects. 458-470. Contributory Negligence. 471-473. Comparative Negligence. 474-477. Other Impediments to Suit for Injury. 478-483. In Particular Cases. 484. Doctrine of Chapter restated. § 433. la other Connections — will be considered various questions within the subject of this title ; such as the con- tributive negligence of a young child, the responsibility of an employer for his servant's negligence, negligence between master and servant and fellow-servants, the negligence of corporations ; negligence in the running of railway and other vehicles, of the passengers, and of other persons in contact therewith ; and negligence as to lands, fences, ways, animals, and other things within the scope of the volume. § 434. How Chapter divided. — We shall consider, I. The Genei'al Doctrine ; II. Negligence combining with other Causes ; III. Proximate and Remote Effects ; IV. Contrib- utory Negligence ; V. Comparative Negligence ; VI. Other Impediments to recovering Damages for Injuries from Negli- gence ; VII. In Particular Cases. I. The General Doctrine. § 435. Already, — in a short chapter, the principle govern- ing our present topic has been stated.^ And there the doc- trine is briefly — 1 Ante, § 148-154. 191 §438 WRONGS WITH PARTICDLAB NAMES. [BOOK III. § 436. Defined. — The former defimtion,^ rendered more comprehensive so as the better to serve the present purpose, is, that negligence is any lack of carefulness in one's conduct, whether in doing or in abstaining from doing,^ wherefrom, by reason of its not filling the full measure of the law's require- ment in the pai-ticular circumstances, there comes to another a legal injury ^ to which he did not himself contribute by his own want of carefulness or other wrong.* § 437. Diffeiing Circumstances. — Negligence, therefore, be- ing the absence of care according to the circumstances,* the particular circumstances of the individual case, coupled with a few not difficult rules of law, and an abundance of common sense, furnish the true criteria 'for the decision in the numer- ous classes of cases the facts whereof differ. To explain, — § 438. Degree. — Negligence and care are correlates, the former being the absence of the latter. And the required degree of care, the absence whereof is negligence, differs with 1 Ante, § 150. 2 Grant v. Moseley, 29 Ala. 302. 8 Ante, § 26 ; post, § 446. * Other Definitions. — The defini- tion which perhaps has been oftenest quoted is that by Alderson, B. in Blyth V. Birmingham Waterworks, 11 Exch. 781, 784 ; namely, " Negligence is the omission to do something which a rea- sonable man, guided upon those consid- erations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do." In Chicago, &c. Eld. v. Johnson, 103 111. 512, 521, Scholfield, J. quotes this as " the generally approved definition," and adds "the more terse" one of the Illinois court in Great Western Eld. ■». Haworth, 39 111. 346, 353, "The oppo- site of care and prudence — the omission to use the means reasonably necessary to avoid injury t/. McCready v. South Carolina Rid. 2 Lockwood, 17 Wal. 357. Strob. 856 ; Lincoln v. Gillilan, 18 Neb, * Chicago, &c. Rid. ti. Garvy, 58 111. 114 ; Carpenter*. Eastern Transp. Line, 83 ; Grant v. McDonogh, 7 La. An. 67 Barb. 570 ; Erd v. St. Paul, 22 Minn. 447. 443 ; Woolfolk v. Macon, &c. Rid. 56 * Ante, § 61 ; Burke v. De Castro, Ga. 457 ; Hunt v. Salem, 121 Mass. &o. Co. 11 Hun, 354. 294 ; Woods v. Boston, 121 Mass. 337 ; 8 Peoria, &c. Ry. v. Reed, 17 Biadw. Barbo v. Bassett, 35 Minn. 485 ; Dexter 413 ; Myers ». Indianapolis, &c. Ry. v. McCready, 54 Conn. 171 ; Ferren v. 113 ni. 386 ; Buell v. Chapin, 99 Mass. Old Colony Eld. 143 Mass. 197 ; Illi- 594 ; Baltimore, &c. Eld. v. Eitzpatrick, nois Cent. Rid. v. Cragin, 71 111. 177 ; 35 Md. 32 ; Buckley v. New York, &c Eureka Co. v. Bass, 81 Ala. 200. Rid. 43 N. Y. Super. 187 ; Shaber v. 194 CHAP. XXIV.] NEGLIGENCE. §442 aside of a verdict.^ And, upon a demurrer, the court passes on the sufficiency of the alleged negligence ; ^ and so in other cases, where the facts are undisputed, and the cou- clusion from them is distinct and certain.^ Likewise, con- nected with this question of negligence, there may be others of pure law ; such as whether the thing complained of is to be governed by the doctrine of negligence, or by some other.* So that ordinarily negligence becomes a mixed question of law and fact.* Whence it follows that there must be, and there are, more or less real or apparent differences of judicial opinion regarding particular combinations of fact and law. Thus it has been said, " The main object is to ascertain the facts. When they are ascertained, the question of negligence is for the court." ^ On the other hand, an instruction to the juryihat certain facts, if established, constitute negligence in matter of law has .been adjudged erroneous.^ These two ap- parently contradictory rulings may not be inharmonious when applied each to its proper case. But it is not advisable, in our exposition of the law, to travel further here into evidence and practice, except as to — 1 St. Louis, SiC. R7. V. Vincent, 36 Ark. 451 ; Eppendorr v. Brooklyn, &c Kia. 69 N. Y. 195 ; Bridges v. North London Ey. Law Rep. 7 H. L. 213 ; Todd V. Old Colony, &c. Rid. 3 Allen. 18 ; Callahan w.Wame, 40 Mo. 131; New Jersey Eld. &c. Co. v. West, 4 Vroom, 430 : Schilling v. Aberiiethy, 2 Am. Pa. 437 ; Atchison, &c. Rid. v. Smith, 28 Kan. 541 ; Simson t;. London Geu. Omn. Co. Law Rep. 8 C. P. 390 ; Dub- lin, &c. Ey. V. Slattery, 3 Ap. Cas. 1155 ; Eose v. Northeastern Ry. 2 Ex. D. 248 ; Manzoni v. Douglas, 6 Q. B. D. 145 ; McClaren v. Indianapolis, &c. Rid. 83 Ind, 319 : Davey v. London, &c. Ry. 12 Q. B. D. 70. 2 Mathiason v. Mayer, 90 Mo. 585. » Fletcher v. Atlantic, &c. Eld. 64 Mo. 484 ; Chicago, &c. Rid. v. O'Con- nor, 119 lU. 586. But not where the conclusion from conceded facts is doubt- fuL Mississippi Cent. Rid. v. Mason, SI Missis. 234. * Howes V. Crush, 131 Mass. 207 ; Stainback ■b. Rae, 14 How. U. S. 532 ; Chidester v. Consolidated Ditch Co. 59 Cal. 197 ; Klatt 0. Milwaukee, 53 Wis. 196 ; Euter v. Foy, 46 Iowa, 132 ; Chi- cago, &c. Eld. V. Johnson, 103 111. 512 ; Claxton V. Lexington, &c. Rid. 1 3 Bush, 636 ; Lewis v. Bulkley, 4 Daly, 156. s Nolan V. New York, &c. Eld. 53 Conn. 461 ; Pittsbui^h, &c. Eld. ». Evans, 3 Smith, Pa. 250. ° Bynum, J. in DoggettB. Richmond, &c. Rid. 78 N. C. 305, 312. In Metro- politan Ry. i". Jack.son, 3 Ap. Cas. 193, 200, Lord Cairns, Ch. said : "It is im- possible to lay down any rule except . . . that, from any given state of facts, the judge must say whether negligence can legitimately be inferred, and the jury whether it ought to be inferred." And see post, § 444, note. ' Myers v. Indianapolis, &c. Ry. 113 111. 386 ; Pennsylvania Co. v. Frana, 112 111. 398. 195 § 444 WRONGS WITH PARTICULAR NAMES. [BOOK in. § 443. Presumptions and Burden of Proot — Both courts and juries take notice of the common course of events.^ So that there are injuries which, in the circumstances attending them, create the presumption of fact that they come from the defendant's negligence; as, if a steam boiler bursts, the party working it has the burden of showing due care, because ex- perience teaches us that negligence is the ordinary source of this sort of accident.^ And where a stage-coach is upset, in- juring a passenger, negligence is prima facie presumed to be the cause, casting the burden on the defendant to prove the contrary .3 But in most accidents, something more than the mere fact of injury must be established before negligence will he inferred ; * as, where a traveller sues for damages from a defective highway.^ Yet if a further step appears and, for example, a railroad accident is shown to have been caused by a defect in the road, cars, or machinery, or by lack of care in those employed, or by any other omission which the company in fulfilment of its duty to carry passengers safely should have supplied, the negligence which the case requires is pre- sumed.^ So likewise, in one's action for the burning of his buildings by fire communicated from the defendant's premi- ses, proof that sparks from the latter's smoke-stack did it, makes & prima facie case.' § 444. Act of Negligence — (Law or Fact). — In spite of 1 Gaynor v. Old Colony, &c. Ry. 100 Hutchinson v. Boston Gas-light Co. 122 Mass. 208, 211, 212; Rex ». Luffe, 8 Mass. 219 ; Kendall v. Boston, 118 East, 193, 202 ; Boullemet c;. The Mass. 234 ; Oyshterbank ■». Gardner, 49 State, 28 Ala. 83 ; Crafter v. Metro- N. Y. Super. 263 ; Robinson v. Fitch- politan Ry. Law Rep. 1 C. P. 300. burg, &c. Rid. 7 Gray, 92 ; Hammack 2 Illinois Cent. Rid. v. PhUlips, 49 v. White, 11 C. B. n. s. 588, 8 Jur. 111. 234, 239. N. s. 796 ; Scott v. London, &c. Docks, » Stokes V. Saltonstall, 13 Pet. 181 ; 3 H. & C. 596, 11 Jur. x. s. 204 ; Cox Farlsh v. Reigle, 11 Giat. 697 ; Sander- v. Burbidge, 13 C. B. n. s. 430, 9 Jur. son V. Frazier, 8 Colo. 79 ; Ware v. n. s. 970 ; Pittsburgh, &c. Ry. v. Hixon, Gay, 11 Pick. 106. For other illus- 110 Iiid. 225. trations, see Mulcaims v. Janesville, ' Eavanangh v. JanesvUle, 24 Wis. 67 Wis. 24 ; MUler v. St. Louis, 618. &c. Ry. 90 Mo. 389 ; Wilkeraon v. * Meier v. Pennsylvania Rid. 14 Corrigan ConsoL St. Ry. 26 Mo. Ap. Smith, Pa. 225 ; Seybolt v. New York, 144. &c. Rid. 95 N. Y. 562. * Brown ■». Congress, &c. Ry. 49 ^ Lawton v. Giles, 90 N. C. 374. Mich. 153 ; The Buckeye, 7 Bis. 23 ; 196 CHAP. XXIV.] NEGUGENCB. § 445 the rule that the question of negligence is for the jury,^ the other rule which requires the judge to pass upon the admis- sion of evidence, and its effect, and the sufficiency of the alle- gations, renders it necessarily a matter of law whether or not in a given case a particular act or omission is negligence.^ For without dealing with this question, one presiding in this class of litigation could not perform the judicial functions. There is also a distinction between negligence and the evi- dence of it. Now, — § 445. niastratioiis of Negligence. — It is not negligence, as we have already seen,* for one to run extreme risks to save human life ; * for example, a railroad engineer who could jump from his engine is not negligent though, for the preser- vation of the passengers, he stays at his post and faces a col- lision.^ Nor is a mother negligent who leaps to rescue her child fi'om an approaching train.® For illustrations of an- other sort, a child of thirteen has been held not to be negli- gent in stopping by a fence to look at something across the street.^ In the absence of special facts, one may prudently act on the presumption that another will fulfil his contract ® or his statutory duty,® and it is negligence not to do what a statute or valid by-law requires,^" — propositions which in vari- 1 Ante, § 442. ' gence as the court has laid it down to ' Lord Chancellor Caims pnt this in them, words a little different ; namely, that * Ante, § 125. "the judge has to say whether any facts * Eckert v. Long Island Rid. 43 N. Y. have been established by evidence from o02. which negligence may be reasonably in- ' Pennsylvania Co. v. Roney, 89 Ind. ferred ; the jurors have to say whether, 453. But a passenger who leaps from from those facts, when submitted to a moving train merely to prevent his them, n^ligence ought to be inferred." family's being in mental distress about Metropolitan Ry. v. Jackson, 3 Ap. Cas. him is negligent. Lake Shore, &c Ry. 193, 197 ; ante, § 442, note. Still it v. Bangs, 47 Mich. 470. is common and convenient in judicial <> Donahoe v. Wabash, &c. Ry. 83 language, distinguishing now negli- Mo. 560. gence from the evidence of it, to desig- ' Hussey v. Ryan, 64 Md. 426. nate particular iacts whereof the court ^ Newson v. New York, &c. Rid. 29 permits proof, as facts of negligence, X. Y. 383 ; Neff c. Broom, 70 Ga, 256, whUe yet the jury must say, not only 259. whether those facts exist, but also ° Kennayde «. Pacific Rid. 45 Mo. whether or not, under the entire proofs 255 ; Ransom v. Chicago, &c Ry. 62 before them, they in the particular in- Wis. 178 ; Daniels v. Cle^ 28 Mich. 32. stance fill the law's definition of n^li- '° Toledo, &c. Ry. v. Deacon, 63 IIL 197 § 446 WRONGS WITH PARTICULAR NAMES. [BOOK III. ous circumstances are so complicated with other doctrines as to seem not universal.^ One is negligent who so keeps a hay- rick on the extremity of his land that his neighbor's house is burned from its spontaneous ignition.^ Assuming one to have the right to float his logs on a river, it is actionable negligence in him to put them in a large quantity upon the ice and, without looking after them, suffer them to create a dam in a thaw, wherefrom the xiver works a channel to the injury of adjoining lands.^ On the other side, a common carrier is entitled to assume that a package committed to him in the ordinary way contains nothing dangerous, therefore it is not negligence in him to accept such a package; so that, if a third person is injured by the explosion of its contents, he is not required to make good the damages.* To perform a natural act, under a sudden impulse of fear created by the circumstances, is not negligence, though the facts disclose afterward that the act was not prudent.^ These illustrations will suffice for the present purpose ; others appear throughout the volume. § 446. Duty to Complaming Party — Ziegal Injoty. — To sus- tain an action for negligence the plaintiff must have suffered 91 ; Terre Haute, &c. Eld. v. Black, 18 Grand Eapids, &c. Eld. 47 Mich. 401 ; Bradw. 45 ; Louisville, &c. Eld. v.- Wohlfahrt v. Beckert, 92 N. Y. 490 ; Connor, 9 Heisk. 19 ; Hill v. Louisville, Watier v. Chicago, &c. Ry. 31 Minn. &c. Eld. 9 Heisk. 823 ; Memphis, &e. 91. Rid. V. Smith, 9 Heisk. 860 ; Houston, 2 Vaughan v. Menlove, 3 Bing. N. C. &c. Ey. V. Wilson, 60 Texas, 142 ; New 468, 4 Scott, 244, 7 Car. &P. 625. For Oi'leans, &c. Eld. v. Toulme, 59 Missis, another illustration of the principle, see 284 ; Missouri Elver Packet Co. v. Han- Tissue v. Baltimore, &c. Eld. 2 Am. Pa. nibal, &c. Eld. 79 Mo. 478 ; Georgia 91. Eld. V. Carr, 73 Ga. 557 ; CorreU v. » George v. Fisk, 32 N. H. 32. Burlington, &c. Eld. 38 Iowa, 120; Mes- * Nitro-glycerine Case, 15 Wal. 524. senger v. Pate, 42 Iowa, 443. ^ Jones v. Boyce, 1 Stark. 493 ; Filer 1 Wahash, &c. Ry. v. Weisbeek, 14 v. New York Cent. Eld. 49 N. Y. 47 ; Bi-adw. 525 ; Chicago, &e. Eld. „. Jones, Buel v. New York Cent. Rid. 31 N. Y. 59 Missis. 465 ; Towuley v. Chicago, &c. 314 ; Twomley v. Central Park, &c. Rid. Ry. S3 Wis. 626 ; Payne v. Chicago, 69 N. Y. 158 ; Siegrist v. Amot, 10 &c. Ey. 39 Iowa, .523 ; Dodge v. Bur- Mo. Ap. 197 ; Karr v. Parks, 40 CaL lington, &c. Eld. 34 Iowa, 276 ; Wabash, 188 ; Mark v. St. Paul, &c. Ry. 30 &c. Ey. V. Central Trust Co. 23 Fed. Minn. 493 ; Wesley City Coal Co. e. Eep. 738 ; Philadelphia, &c. Eld. v. Healer, 84 111. 126 ; Coulter o. Ameri- Stebbing, 62 Md. 504 ; Missouri Pacific can, &c. Exp. Co. 56 N. Y. 586. Ry. a. Pierce, 33 Kan. 61 ; Haas v. 198 CHAP. XXIV.] NEGLIGENCE. § 4^50 a legal injury ^ whereof he is entitled to complain.* There- fore, however great the defendant's negligence, if it was committed without violating any duty which he owed either directly to the plaintiff, or to the public in a matter whereof he had the right to avail himself,^ as explained in the earlier chapters of this volume, there is nothing which the law will redress.* For example, one who finds a thing which is lost, so that it will be his unless the owner appears and claims it, is under no duty to keep it carefully ; and an action will not lie against him if it is cloth and becomes moth-eaten, or a horse and it is not fed.^ And where a railroad is under no duty to keep in repair a private crossing, the land-owner for whose benefit it exists cannot recover the damages to his wagon sustained by its being out of repair.® § 447. An Accident — may be of the inevitable sort, for which the party must suffer without compensation, as ex- plained in a preceding chapter." Or it may come from negli- gence, in which case only, it is actionable.^ For — § 448. Resulting from Negligence. — Always an injury, to be actionable as negligence, must result from the negligence.^ § 449. other Doctrines, — governing the various complica- tions of fact liable to arise, are explained in the following sub- titles. n. Negligence combining with other Causes.^'^ § 450. The Iieading Doctrine — governing this sub-title has ^ready been stated ; namely, that where two or more causes 1 Ante, § 143, 150. Bishop v. TTnion Rid. 14 R. I. 314 ; » Ante, § 22-65. Wright v. Wilmington, 92 N. C. 156. * Atkinson o. Newcastle, &c. Water- ' McGrew v. Stone, 3 Smith, Pa. works. Law Eep. 6 Ex. 404 ; Victory v. 436 ; Cole v. Fisher, 11 Mass. 137, 138 ; Baker, 67 N. Y. 366 ; Tonawanda Eld. The Lotty, Oleott, 329 ; Atkinson v. V. Muuger, 5 Denio, 255, 266, 267. Goodrich Transp. Co. 60 Wis. 141 ; « Kahl V. Lov«, 8 Vroom, 5 ; Gwynn Townsend v. Sasquehannah Turnpike, 6 V. Duffield, 66 Iowa, 708 ; Conghtiy ». Johns. 90 ; Beach v. Panneter, 11 Har- Globe Woollen Co. 56 N. Y. 124. ris. Pa. 196. * Mnlgrave v. Ogden, Cro. Eliz. 219. ' Ante, § 38 ; Pennsylvania Co. v. « Mann r. Chicago, &c.Ey. 86 Mo. 347. Marion, 104 Ind. 239; East Tennessee, 1 Ante, § 155 et seq. ; Hodgson v. &c. Eld. v. King, 81 Ala. 177. Dexter, 1 Cranch C. C. 109 ; Bead v. "• Compare with chapter commencing Pennsylvania Eld. 16 Vroom, 280 ; post, § 517. 199 § 452 WRONGS WITH PAKTICULAB NAMES. [BOOK HI. operate together, — not where, after one has begun, an inde- pendent one comes in to produce its own different result,^ — the party putting any one in motion is responsible for the entire consequences the same as though it were the sole cause. And it is not necessary that the beginning of their operation should be simultaneous.^ Thus, — § 451. Defendant and Third Person. — It is no defence by one sued for negligence that, though his negligence contrib- uted to the injury, another's contributed also.^ For example, in a case of collision between stage-coaches, if the driver of the defendant's coach was wanting in skill and prudence, no recklessness of the other driver will exempt him from liabil- ity to another.* So, in a suit against a railroad for setting fire to the plaintiff's elevator by sparks carelessly thrown from the locomotive, if it appears that they fell, not upon the elevator, but upon a third person's building which was con- sumed, it will not avail the defendant that the fire was com- municated thence" through the carelessness of the third person.^ The reason of this has already been stated, and it has been shown ^ that a contrary doctrine, incautiously held in Massachusetts* and one or two other States, is utterly without support either in general adjudication or in just legal principle. § 452. Defendant and Inanimate Thing. — The same rule applies also when some irresponsible force or inanimate thing co-operates with the defendant's negligence to produce the harm.* Thus, where a city had carelessly left an excavation '■ Ante, § 42. 8 Small v. Chicago, &c. Eld. 55 Iowa, 2 Ante, § 39, 45, 46 ; Terre Haute, 582 ; s. p. Johnson v. Chicago, &c. Ry. &c. Rid. V. Buck, 96 Ind. 346. 31 Minn. 57. ' Grand Trunk Ry. v. Cummings, t Ante, § 39, note. 106 U. S. 700, 702 ; Griggs v. Flecken- 8 Shepherd v. Chelsea, 4 AUen, 113, stein, 14 Minn. 81, 93 ; Slater v. Merse- 114 ; Priest v. NichoU, 116 Mass. 401. rean, 64 N. Y. 138 ; Mills v. Armstrong, As more neariy conforming to the gen- 13 Ap. Cas. 1. eral doctrine, see Deny v. Flitner, 118 * Peck V. Neil, 3 McLean, 22. Mass. 131 ; Churchill v. Holt, 131 5 Hoyt V. JeffeiB, 30 Mich. 181 ; Mass. 67. Butcher v. Vaca Valley, &c. Rid. 67 » Ante, § 39. And see Gubasko •^. Cal. 518 ; Crandall v. Goodrich Transp. New York, 12 Daly, 183. Co. 16 Fed. Rep. 75 ; Rvan n. New York Cent. Kid. 35 N. Y. "210. 200 CHAP. XXIV.J NEGLIGENCE. § 456 in the street, and a person attempting to avoid the threatened kick of a mule fell into it and was injured, the city was held to be liable.i But — § 453. Independent Force. — If, while the negligence is working, an independent force comes along and produces au injury not its natural and probable effect, the author of the negligence is not responsible, as explained in a previous chapter.^ III. Proximate and Remote Effects. § 454. Already. —As seen in the last sub-title, so here, the general doctrine of the topic, as pervading the entire law of non-contract wrongs, has been already in a preceding chap- ter explained.^ It is proposed here to give only some brief illustrations of the doctrine in its special application to negligence. § 455. General. — The negligence, to be actionable, must be what is technically termed the proximate cause of the in- jury,* — not necessarily the only cause ^ or most proximate.® And it is ordinarily a question of fact for the jury, under instructions from the court, whether it was thus proximate or not.'' To illustrate, — § 456. Instances. — Though the immediate cause of an ac- cident is the breaking of a chain, an act likely to induce the breaking may be deemed the proximate cause of the accident.^ And, in line with the doctrine of the last sub-title, if one neg- 1 Bassett v. St. Joseph, 53 Mo. 290. 305 ; Crandall v. Goodrich Transp. Co. * Ante, § 42, 43 ; PeDnsylvania Co. 16 Fed. Rep. 75 ; Faweett v. Pittsburg, V. Whitlock, 99 Ind. 16 ; Booth ». San- &c. Ey. 24 W. Va. 755 ; Oil City Gas ford, 52 Conn. 481 ; Muster v. Chicago, Co. v. Robinson, 3 Out. Pa. 1 ; Ryan v. &c. Ey. 61 Wis. 325. New York Cent. Eld. 35 N. Y. 210 ; » Ante, § 40-48. Marble v. Worcester, 4 Gray, 395. ♦ Howe V. Young, 16 Ind. 312 ; ^ ^^te, § 450. Kline v. Central Pacific Eld. 37 Cal. ^ gcott v. Hunter, 10 Wright, Pa. 400 ; Needham v. San Francisco, &c. 192. Eld. 37 Cal. 409 ; Pitteburgh, &c. Ey. ' Milwaukee, &c. Ey. v. Kellogg, 94 V. Conn, 104 Ind. 64 ; Bishop v. Pent- V. S. 469 ; Reiper v. Nichols, 31 Hun, land, 7 B. & C. 219 ; Salem Bank v. 491 ; Dunn v. Cass Ave. &c. Ry. 21 Gloncester Bank, 17 Mass. 1, 32 ; Har- Mo. Ap. 188 ; Savage v. Chicago, &c. riss V. Mabry, 1 Ire. 240 ; Pennsylvania Ry. 31 Minn. 419. Eld. e. Weber, 22 Smith, Pa. 27 ; Dog- 8 King v. Ohio, &c. Ry. 25 Fed. Eep. gett V. Richmond, &c. Rid. 78 N. C. 799. 201 § 459 WRONGS WITH PAETICULAR NAMES. [BOOK IH. ligently leaves combustibles, and a second person negligently sets them on fire to the damage of a third, the act of either the first or of the second person may be treated as the proxi- mate cause of the loss.^ Where the gate of a wire fence be- side a railroad is negligently left open, and horses escape through it to the railroad track, then are frightened by the engine and run against the fence and are injured, the leaving open of the gate may be deemed the proximate cause of the injury.^ § 457. Natural and Probable Consequences. — When a cause has been put in motion, the author of it is responsible for all its natural and probable consequences, which are not too re- mote.* And it is not necessary that the evil result should have been in form foreseen.* For example, horses frightened in a street are liable to run away and do damage ; so that, if the whistle of a locomotive engine is needlessly and wantonly sounded near a highway, causing a team of horses to run and kill another horse, the owner of the latter may recover his damages of the railroad.* IV. Contributory Negligence. § 458. Doctrines contrasted. — Where the joint negligence of the defendant and another has produced the complained-of injury, the defendant's liability to pay for it depends upon whether the other was the plaintiff or a third person. In the latter case, we have seen, he is answerable the same as though he had done all without help.^ In the former, it is about to be explained that he altogether escapes. Now, — § 459. Defined. — The doctrine of contributory negligence is, that one cannot recover compensation for an injury from any negligence, however it may be deemed another's, into which negligence of his own has to any degree^ entered 1 Johnson v. Chicago, &c. Ry. 31 * HUl v. Winsor, 1X8 Mass. 251. Minn. 57. ^ Billman v. Indianapolis, &c. Bid. 2 Savage o. Chicago, &c. Ry, 31 Minn. 76 Ind. 166. 419. .6 Ante, § 451. 3 Ante, § 40-48 ; Weick v. Lander, ' New Jersey Exp. Co. t. Nichols, 4 75 111. 93. Vroom, 434 ; Hawkins v. Cooper, 8 Car. 202 CHAP. XXIV.] NEGLIGENCE. §460 as a proximate cause,^ contributing to the complained-of result.* § 460. Why ? — In many of the judicial expositions, the reason of this doctrine — the ground whereon it rests — seems to have eluded notice.^ Obviously it is a, particular & P. 473 ; Louisville, &c. Ey. v. Shanks, 94 Ind. 598 ; Artz v. Cliicago, &0. Md. 38 Iowa, 293 ; Kansas Pacitic By. v. Peavey, 29 Kan. 169 ; Monongaliela City V. Fischer, 1 Am. Pa. 9, 14, Pax- son, J. observing: "The doctrine of this court has always been, that if the negligence of the party contributed in any degree to the injury he cannot re- cover. This is a safe rule, easily under- stood, and cannot well be frittered away by the jury. But if we substitute the word ' material ' for the word ' any ' we practically abolish the rule, for a jury can always find a way to avoid it. The rule itself is valuable, and rests upon sound principles. We are not dis- posed to allow it to be undermined." See post, § 468. 1 Flynn v. San Francisco, &c. Rid. 40 Cal. 14 ; Newhouse v. Miller, 35 Ind. 463 ; Fowler o. Baltimore, &c. Bid. 18 W. Va. 579 ; Gunter v. Graniteville Manuf. Co. 15 S. C. 443 ; Levy v. Ca- Tondelet Canal and Nav. Co. 34 La. An. 180 ; Yahn v. Ottumwa, 60 Iowa, 429. 2 Oil City Gas Co. ». Eobinson, 3 Out. Pa. 1 ; Lake Shore, &c. Ry. v. Bangs, 47 Mich. 470 ; Wabash, &c. Ry. V. Weisbeck, 14 Bradw. 525 ; Wabash, &c Ey. V. Thompson, 15 Bradw. 117 ; Chicago, &c. Eld. o. Rogers, 17 Bradw. 638 ; Cunard Steamship Co. ■». Carey, 119 tJ. S. 245 ; Gonthier v. New Or- leans, &c. Rid. 28 La. An. 67 ; The State V. Baltimore, &c. Rid. 58 Md. 482 ; Virtue v. Birde, 2 Lev. 196 ; Abernethy v. Van Buren, 52 Mich. 383 ; Batterfield v. Forrester, 11 East, 60 ; Kentucky Cent. Rid. u. Thomas, 79 Ky. 160 ; Barley v. Chicago, &c. Eld. 4 Bis. 430 ; Chicago, &c. Ry. v. Donahue, 75 111. 106 ; Quimby v. Woodbury, 63 N. H. 370 ; Barlow v. McDonald, 39 Hun, 407 ; Patrick v. Pote, 117 Mass. 297 ; Gribble v. Sioux City, 38 Iowa, 390 ; Kelly i;. Hendrie, 26 Mich. 255 ; Stiles V. Geesey, 21 Smith, Pa. 439 ; FlemmingB. Western Pac. Rid. 49 Cal. 253 ; Behan v. New Yorki 24l*ed. Eep. 239 ; St. Louis, &c. Ey. ■». Mathias, 50 Ind. 65 ; Hurst v. Bumside, 12 Oregon, 520 ; Greenland v. Chaplin, 5 Exch. 243 ; Lord v. Hazeltine, 67 Maine, 399 ; Arctic Fire Ins. Co. v. Austin, 69 N. Y. 470 ; Drake v. Mount, 4 Vroom, 441 ; Griggs V. Fleckenstein, 14 Minn. 81 ; Donaldson v, Milwaukee, &c. Ey. 21 Minn. 293 ; Brown v. Milwaukee, &c. Ey. 22 Minn. 165 ; Lilley o. Fletcher, 81 Ala. 234. s For example, in The Bemina, 12 P. D. 58, 89, Lindley, L. J. observes : "Why, in such a case, the damages should not be apportioned, 1 do not profess to understand. However, the law ou this point is settled, and not open to judicial discussion." Still he mentions, referring to Greenland v. Chaplin, 5 Exch. 243, that "the jury cannot take the consequences and divide them in proportion according to the negligence of the one or the other party." And we have many cases which state the reason to be, that the law has no means to separate an aggregate of damage jointly produced, and say how much of it came from the plaintiff's intermin- gling negligence. Heil v. Glanding, 6 Wright, Pa. 493, 499, and Needham v. San Francisco, &c. Eld. 37 Cal. 409, are examples. But, in fact, the admiralty has always done something like this, as we shall see in the next sub-title. Post, § 473. And this suggests that if, seek- ing for a reason, we were not particular whether or not we found the true one, we might attribute the doctrine, and with much plausibility, to the limita- tions from the procedure explained ante, 203 § 462 WRONGS WITH PAETICULAR NAMES. [BOOK III. instance within the wider doctrine, that a court of law will not give redress to a plaintiff whose case shows wrong in himseK in the very matter whereof he complains. And the reason for this wider doctrine, together with its limits, is stated in a preceding chapter in connection with the doctrine itself.^ A familiar expression of it is, that one coming into court must come with " clean hands." '■^ And a familiar illus- tration is, that, if two persons join in a tort and one of them pays the damages, he cannot enforce contribution against the other,* or if a woman yields to her seducer she cannot main- tain a suit for the wrong.* To reject the rule of contributory negligence, therefore, would not only reverse a line of decis- ions extending back to early times, but it would likewise take away from our legal structure a foundation pillar whereon a much larger portion of it than mere negligence reposes. Now, — § 461. Judicial Tangle. — The cases and their accompany- ing opinions, on this subject, are immensely numerous, and together they constitute a tangle from which no one who enters it can extricate himself simply by following the words of the judges. But, looking at the doctrine in the light of its true reason, as just stated, we shall find our way sufficiently plain ; and the adjudications will not appear more inharmo- nious than on many other subjects. Thus, — § 462. Proximate. — Since the negligence, to be actionable, must be the proximate cause of the injury, the contributory negligence must also, to bar the action, be proximate ; * for otherwise the plaintiff would not be in fault about the same thing whereof he complains. His fault would pertain to a collateral matter, which, we have seen,® does not bar. Within this principle, — § 66-69. For the admiralty sits with- ^ 2 Bishop Mar. & Div. § 75. out a jury, and its practice is flexihle. ' Ante, § 56. Yet there is nothing in the juiy practice * Ante, § 57. forbidding the defendant to recoup his ' Cases cited ante, § 459 ; Doggett damages out of the plaintiff's, though ». Bichniond, &c. Rid. 78 N. C. 305 ; he could not go further and obtain a Pendleton Street Eld. 1;. Stallmann, 22 verdict for any excess. Ohio State, 1, 20. 1 Ante, § 54-65. 6 Ante, § 54, 59. 204 CHAP. XXIV.] NEGLIGENCE. § 463 § 463. Negligence as New Force. — If, while one is negli- gent, — perhaps the expression should be, in a state of negli- gence, — another negligently employs an independent force, vrhich, availing itself of the occasion afforded by the former's negligence, works a harm not its natural and probable conse- quence, but an independent harm, the first negligence is not contributory to the seconcj.^ There are difficulties in apply- ing this principle, but they are only such as are inseparable from the infinite complications of human affairs, and. the diversities of opinions upon them. To illustrate : the owners of a colliery had a siding to a railroad under other ownership. Over the siding they had a bridge. The colliery people were accustomed to load their wagons on this siding; the railroad people, to take them away loaded and return them empty. One Saturday evening, after the workmen had left the col- liery, the railroad men returned to the siding a quantity of empty wagons, one of which was too high to go under the bridge by reason that another wagon becoming disabled had to be loaded upon it. Sunday night, after dark, the railroad men brought along another quantity of these empty wagons, pushed them upon the siding until the one too high hit the bridge, then applied too strong a force, and did damage. Should the railroad sustain the loss ? A jury, under the in- struction that there was here evidence for their consideration, and that the plaintiffs could not recover if their own negli- gence contributed to the accident, said no. The Court of Exchequer unanimously set aside the verdict for error in the instruction as applied to this special state of facts, the Ex- chequer Chamber unanimously reversed this decision, and the House of Lords unanimously reversed the Exchequer Chamber. The facts are of a class to which the doctrine of this section is fairly applicable, but none of the judges put the case quite so in terms.^ Other facts illustrating the doc- 1 Ante, § 42, 59-63, 453 ; O'Brien of Lords. It is perceived that the in- 1. McGlinchy, 68 Madue, 552. strnctiou lays down the onlinary doc- * Radley o. London, &c. By. Law trine of contributory negligence, yet it Rep. 9 Ex. 71, in the Exchequer ; Law does not go further. Lord Penzance, Rep. 10 Ex. 100, in the Exchequer in delivering in the House of Lords an Chamber • 1 Ap. Cas. 754, in the House opinion concurred in by the other law 205 463 WRONGS WITH PARTICULAR NAMES. [bOOK III. trine are aufi&ciently numerous in the books, and they are not the less effective though the judges have not always reasoned upon them precisely in our present form.^ Thus, — lords, after stating this general doctrine, adds : "But there is another proposi- tion equally well established, and it is a qualification npon the first, namely, that though the plaintiff may have been gmlty of negligence, and although that negligence may in fact have contributed to the accident, yet if the defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plain- tiff's negligence will not excuse him." p. 759 of Ap. Cas., on the authority of Davies v. Mann, 10 M. & W. 546, and Tuff V. Warman, 5 C. B. n. s. 573. The reader perceives that, however just this proposition may be as applied to the special facts in hand, if absti'actly viewed it is simply a flat denial of the general doctrine of negligence itself. And it may profitably be added here, that the great stumbling-block for law students, for not a few practising law- yers, and for more of the judges than it would be pleasant to say, is that, sepa- rating utterances of courts from the facts which prompted them, they accept them as doctrine, and follow them to the confusion both of themselves and of their hearers. Thns, Lord Penzance here says, that contributor}' negligence does not bar a plaintiff's recovery "if the defendant could in the result, by the exercise of ordinary care and dili- gence, have avoided the mischief which happened." Now, there is no possible case in which a defendant is liable " if he could Twt have avoided the mis- chief ; " every case of actionable negli- gence involves the element that he "txmld have avoided" it. So that, to say that the doctrine of contributory negligence does not apply to a. case wherein the defendant could have pre- vented the mischief " by the exercise of ordinary care and diligence," is equiva- lent to the assertion that it does not apply to any case, and that it has no existence in the law. Subsequently to the decision of the three cases above re- ferred to in this note, Lindley, L. J., •citing them, stated the doctrine to which I have quoted Loi-d Penzance, thns : " But if the plaintiff can show that, al- though he has himself been negligent, the real and proximate cause of the in- jury sustained by him was the negli- gence of the defendant, the plaintiff can maintain an action." The Bemina, 1 2 P. D. 58, 89. Looking at these two utterances abstractly, their difference is very marked ; yet in the, later case the learned judge simply repeats in idea what he deems to have been laid down in the earlier. Evidently in the later, the judicial mind had in contemplation a broader view of facts than in the earlier. And the later utterance is a nearer approximation to the doctrine as stated in the text of this section than the earlier. Neither of these two learned persons had occasion to contemplate the subject under the broader light from which it is the duty of a legal author to speak. In this view, I regard these English cases, and the American ones which in words follow them, as aflSrm- ing, rather than conflicting with, the doctrine laid down in the text. At all events, the doctrine is founded on what is immutable in the common law, and is subject only to legislative control. See the American cases of Gnnter v. Wicker, 85 N. C. 310 ; Bnrham v. St. Louis, &c. Eld. 56 Mo. 338 : Swigert v. Hannibal, &c. Eld. 75 Mo. 475 ; North- ern Central By. v. The State, 31 Md. 357 ; Gunter v. Graniteville Manuf. Co. 15 S. C. 443 ; Pendleton Street Eld. r. Stallmann, 22 Ohio State, 1, 20; 206 » Bishop Con. § 12. CHAP. XXIV.] NEGLIGENCE. §464 § 464. Instances. — Where one negligently left his donkey fettered in a highway, and another recklessly drove his wagon against it and killed it, the lack of carefulness in the former being simply a state of things whereof the latter's careless- ness took advantage,* the former's negligence was not con- tributory, and the action was maintainable.* So from a house standing beside a railroad the owner left a pane of glass partly out, then a locomotive was driven past it at an exces- sive speed, throwing a spark through the broken pane into the house, and doing damage ; here, though the house-owner was negligent in not mending his window, the burning of the "building was not the natural and probable consequence of the hole, and the spark was thrown through it by means of a negligent force quite disconnected from his negligence, there- fore he could maintain the action.^ To do a thing forbidden by a statute may, we have seen,* be treated as negligence ; but, if one is driving his cattle to market on Sunday, con- trary to a statutory prohibition, he may recover for an injury Houston, &C. Cent. By. v. Carson, 66 Texas, 345 ; Morrissey v. Wiggins Fer- ry, 47 Mo. 521 ; Green v. Erie Ey. 11 Hun, 333 ; Goltz v. Winona, &c. Rid. 22 Minn. 55 ; Klipper v. Coffey, 44 Md. 117 ; Mississippi Cent. Rid. v. Mason, 51 Missis. 234 ; Johnson ». Canal, &c. Rid. 27 La. An. 53 ; Manly v. Wilming- ton, &c. Eld. 74 X. 0. 655. 1 Ante, § 42, 43, 59, 61. ' Davies v. Mann, 10 M. & W. 546, Parke, B. observing, "The judge sim- ply told the jury that the mere fact of negligence on the part of the plaintiff in leaving his donkey on the public high- way was no answer to the action, unless the donkey's being there was the imme- diate cause of the injury ; and that, if they were of opinion that it was caused by the fault of the defendant's servant in driving too fast, . . . the mere fact of putting the ass upon the road wonld not bar the plaintiff of hia action. All that is perfectly correct ; for, although the ass may have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief." p. 549. This was putting the case on the ground of proximate and remote cause, and was not objectionable. Ante, § 462. But the facts better illustrate our present doctrine. ' Martin v. Western Union Rid. 23 Wis. 437. In this case, as in that of the donkey and in great numbers of other cases, I have not considered it impor- tant to inquire whether or not the rea- soning of the law, which I endeavor to follow, corresponds with that of the in- dividual judge pronouncing the opinion. Compare this case with Alpem v, Churchill, 53 Mich. 607 ; Aaron v. Second Ave. Rid. 2 Daly, 127 ; Yik Hon iJ. Spring Valley Waterworks, 65 Cal. 619 ; Hatfield v. Chicago, &c. Ry. 61 Iowa, 434 ; Greenland v. Chaplin, 5 Exch. 243 ; Kansas Pac. Ry. v. Brady, 17 Kan. 380. * Ante, § 445. 207 § 466 WEONGS WITH PARTICULAR NAMES. [BOOK III. to them not naturally consequent thereon, proceeding from another's negligence.^ But — § 465. Distinctions as to this. — Slight changes in the facts will reverse the legal result. If, for example, the owner of the donkey had left it fettered on a railroad track over which trains were passing every half-hour, and it had been uninten- tionally yet carelessly killed, no one would doubt that his negligence had contributed to the accident, and he could not recover. And where, in an ordinary highway, a woman hitched her horse so that the carriage projected into the travelled part, and a wagon unaccompanied by the wagoner (a fact distinguishing this from the donkey case) came along • and did damage to the carriage, her negligence was held to be contributory, so the action was not maintainable.^ If a railroad negligently sets a house on fire, it is not liable for a package of money burned therein, when the owner was negli- gent in not taking it away at a safe opportunity which oc- curred.* Here the plaintiff's negligence is simultaneous with the defendant's, leaving no ground for excepting the case out of the foregoing rule. § 466. Discovered Negligence. — It is sometimes very cor- rectly said that, if one discovers another to have been negli- gent, he must take precautions accordingly ; omitting which, he is liable to the other for the damages which follow from his own want of care.* For, however nearly related two sepa- rate negligences may be, the one cannot bar an action for the other unless it is contributory ; ^ and, though an unseen posi- tion might contribute to an accident, a discovered one cannot.* ^ Sutton V. Wauwatosa, 29 Wis. 21. Mo. 475 ; Straus v. Kansas City, &c. Eld. For more of this see ante, § 62-64. 75 Mo. 185 ; Morris v. Chicago, &c Ry. Compare with Needham v. San Fran- 45 Iowa, 29 ; Zimmerman v. Hannibal, Cisco, &c. Rid. 37 Cal. 409. &c. Rid. 71 Mo. 476 ; Woods v. Jones, ^ Stiles V. Geesey, 21 Smith, Pa. 439. 34 La. An. 1086, 1088. Compare with Morris v. Phelps, 2 Hil- ^ Ante, § 459 ; Central Rid. v. Van ton, 38 ; Hohoken Laud, &c. Co. v. Horn, 9 Vroom, 133. Lally, 19 Vroom, 604. 6 Omaha Horse Ry. v. Doolittle, 7 " Toledo, &c. Ry. v. Pindar, 53 111. Neb. 481; Snyder ». Pittsburgh, &c Ry. 447. Compare with Chicago, &c. Ry. 11 W. Va. 14 ; O'Rourke v. Chicago, V. Donahue, 75 111. 106. &c. Ry. 44 Iowa, 526 ; Citizens Street * Cooper I). Central Eld. 44 Iowa, Ry. v. Steen, 42 Ark. 321. 134 ; Swigert u. Hannibal, &c. Rid. 75 208 CHAP. XXIV.] NEGLIGENCE. § 468 A failure to discern the position will be negligence or not according to the circumstances.^ A familiar illustration of this rule is where one driving upon a highway sees another on the wrong side ; if now he proceeds on, as though the other were on the right side, and a collision occurs, he is responsible.^ § 467. Inaccurate Test. — A test obviously inaccurate, yet sometimes appearing in the reports, is, that a negligence is to be deemed contributory or not according as, without it, the accident would or would not have occurred.^ This test would reverse the result in numberless plain cases, about which there is no dispute ; as, in the case just stated, where one is liable for driving over another whom he sees to be on the wrong side of the way.* If tlie injured person had not been negligent, — that is, if he had been on the right side, — he would not have suffered, and the test would bar him of his right, contrary to the universally accepted doctrine. More- over, this test evidently proceeds from misapprehension of the reason* on which the rule of contributory negligence rests ; therefore, as well as because it is practically mislead- ing, it should be rejected.® § 468. Magnitude — (Plaintiff's Fault). — We have seen that negligence, to be actionable, must have attained a standard degree, varying with the circumstances ; ^ while contributory negligence needs simply to be of a degree enhancing the proximate cause of the injury.* Both from this statement and from the principle that the law does not concern itself about trifles,* as well as from the fact that our jurisprudence always takes to itself practical forms, it results that there 1 Washington v. Baltimore, &c. Rid. &c. Rid. v. The State, 36 Md. 366 ; 17 W. Va. 190 ; Baldwin v. St Louis, Baltimore, &c. Rid. v. Kean, 65 Md. &c. Ey. 63 Iowa, 210 ; Goltz v. Winona, 894 ; Bevis v. Baltimore, &c. Eld. 26 &c Eld. 22 Minn. 55 ; Klipper v. Cof- Mo. Ap. 19. fey, 44 Md. 117. * Ante, § 466. 2 Oay V. Wood, 5 Esp. 44 ; Spofford ^ Ante, § 460. V. Hariow, 3 Allen, 176 ; post, § 1016. « It was rejected in Murphy o. Deane, » Tuff ». Warman, 5 C. B. N. s. 573, 101 Mass. 455. 5 Jnr. N. s. 222 ; New Jersey Exp. Co. 1 Ante, § 438. V. Nichols, 4 Vroom, 434 ; Woods v. « Ante, § 459, 462. Jones, 34 La. An. 1086 ; Colorado Cent. » Ante, § 35, 36. Eld. . Charleston, &c. Ry. 21 S. C. 495 ; Dougherty, 12 Bradw. 181 ; Moody v. Lincoln o. Walker, 18 Keb. 244, 247 ; Peterson, 11 Bradw. 180 ; Quinn v. Illi- Sanderson r. Frazier, 8 Colo. 79 ; Texas, nois Cent. Rid. 51 111. 495 ; Chicago, &c. Ry. V. Orr, 46 Ark. 182 ; Little &c. Ry. e. Sweeney, 52 111. 325 ; Chi- Rock, &c. Ry. *. Atkins, 46 Ark. 428 ; cago, &o. Rid. v. Murray, 62 111. 326 ; Montgomery, &c. Ry. v. Chambers, 79 Chicago, &c. Eld. v. Payne, 59 111. Ala. 338 ; Thorpe c. Missouri Pac. Ry. 534 ; Chicago, &c. Rid. v. Dunn, 61 89 Mo. 650 ; Holt r. ^Vhatley, 51 Ala. 111. 385. 669 ; Mares r. Xorthem Pac. Rid. 8 * Chicago v. Steam.s, 105 111. 554 ; Dak. 336 ; Hocnm n. Weitherick, 22 Chicago, &c. Rid. v. Johnson, 103 111. Minn. 152. 612 ; Lake Shore, &c. Ry. o. O'Conner. 211 § 473 WRONGS WITH PARTICULAR NAMES. [BOOK III. if the negligence was gross on both sides, or otherwise equal, or if the defendant's was not largely in excess of the plaintiff's,^ or if the plaintiff's was contributory to a considerable degree, which the author cannot quite define,^ the action fails. § 472. In other States, — for example, in Kansas ^ and Iowa,* — this doctrine of comparative negligence does not prevail. Perhaps it may have had a modifying influence upon the common-law rules in one or two of the States wherein it is not further accepted. § 473. In Admiralty cases, — for example, in cases of col- lision governed by the maritime law as transmitted to us from England, — if there is fault on neither side each party bears his own loss ; the accident pertaining to the inevitable, and the same rule prevailing as under the common law.^ But, if both are in fault, the loss, contrary to the common-law rule, is apportioned equally * or otherwise equitably between them, — more particularly how, it is not proposed here to inquire.^ This rule extends to all maritime torts.* 115 111. 254 ; Calumet Iron, &c. Co. v. ' Garfield Manuf. Co. v. McLean, Martin, 115 lU. 358 ; Eockford, &e. 18 Bradw. 447 ; Toledo, &c. Ry. o. Kid. V. Delaney, 82 111. 198 ; Schmidt Pindar, 53 111. 447 ; Western Union V. Chicago, &c. Ey. 83 111. 405 ; Quinn Tel. v. Qainn, 56 111. 319 ; Chicago, &c. V, Donovan, 85 111. 194 ; Illinois Cent. Rid. v. Bohinson, 8 Bradw. 140 ; Chi- Eld. V. Hammer, 85 IlL 526; Gray- cago, &c Ey. ». Murphy, 17 Bradw. 444; villeB. Whitaker, 85 IlL 439 ; Wabash, Chicago, &c. Ry. ■». Donahue, 75 111. 106. &c. By. ■». Wallace, 110 111. 114 ; To- .« Atchison, &c. Bid. „. Moi^an, 31 ledo, '&c. By. ■». O'Connor, 77 lU. Kan. 77. 391 ; Chicago, &c. Rid. v. O'Connor, * Johnson ». Tfllson, 36 Iowa, 89. 13 Bradw. 62 ; Wabash, &c. Ry. v. » Stainback v. Eae, 14 How. U. S. Moran, 13 Bradw. 72 ; Union Stock- 532 ; The Marpesia, Law Rep. 4 P. C. yards, &c. Co. -o. Monaghan, 13 Bradw. 212. 148 ; Chicago, &c. Eld. v. Gregory, 58 * "By the rule of the admiralty lU. 272 ; Pittsbuigh, &c. Ey. ■». Shan- court, where there has been such con- non, 11 Bradw. 222 ; Peoria, &c. Ey. tributory negligence, or in other words V. Miller, 11 Bradw. 375 ; Chicago, &c. when both have been in fault, the en- Ey. V. Harris, 54 IlL 528 ; Chicago, tiie damages resulting from the collision &c. Eld. V. Pondrom, 51 111. 333 ; Chi- must be equally divided between the cago, &c. Ey. v. Coss, 73 111. 394. parties." Miller, J. in Atlee ii. Packet 1 Illinois Cent. Eld. ■». Baches, 55 Co. 21 Wal. 389, 395. 111. 379 ; Sangamon Distilling Co. v. 7 Stoomvaart Maatschappy Keder- Young, 77 lU. 197. land v. Peninsula, &c. Steam Nav. Co. 7 8 Atlee V. Packet Co. supra ; The Max Mollis, 28 Fed. Rep. 881 ; The Modoc, 26 Fed. Rep. 718. 212 CHAP. XXIV.] NEGLIGENCK. § 476 VI. Other Impediments to recovering Damages for Injuries from Negligence. § 474. Already. — In a preceding chapter ' we saw, in a general way, what will bar one's action for a non-contract wrong. Our sub-title on contributory negligence was little else than a special application of doctrines laid down in that chapter. And it will be the same with the present sub-title. § 475. Intentional. — Negligence is not a purposed inflic- tion of injury, it is the mere careless doing of unmeant harm.^ So that, for example, contributory negligence is no defence to an action for an intentional tort.^ Nor, on the other hand, is contributory negligence premeditated wrong. Yet a wrong which the plaintiff intends will always go as far to bar his recovery as contributory negligence, and it may go further. We saw, in a previous chapter, something of the effect of a plaintiff's trespass upon his action for the defendant's negligence.* § 476. Consent,^ — by the defendant, to the plaintiff's doing what would otherwise be contributory negligence takes away its effect as such. Thus, where one by permission of a rail- road piled by its track some wood which it was to buy when measured, then a locomotive carelessly set it on fire, the plea of contributory negligence was held to be unavailing in his suit against the road.® So, on the other hand, one who au- thorizes a thing to be done cannot have damages for the doing.'' Ap. Cas. 795 ; The Manitoba, 122 U. S. Denio, 232, 236, 237 ; Tonawanda Kid. 97 ; McCord «. The Tiber, 6 Bis. 409 ; v. Hunger, 5 Denio, 255, 267. The Sam Gaty, 5 Bis. 190 ; The Michael » Ruter v. Foy, 46 Iowa, 132 ; Mat- Davitt, 28 Fed. Rep. 886 ; The Colum- thews v. Warner, 29 Grat. 570 ; Clax- bia, 27 Fed. Eep. 704 ; The Washing- ton v. Lexington, &c. Rid. 13 Bush, ton, 9 Wal. 513; The Alabama, 92 636 ; Tonawanda Rid. i>. Mnuger, supra ; U. S. 695 ; The Juniata, 93 U. S. 337 ; Chicago, &c. Rid. ». Johnson, supra. The Atlas, 93 U. S. 302 ; The Virginia * Ante, § 60. Ehrman, 97 U. S. 309 ; The CSty of » Ante, § 49-53. Hartford, 97 V. S. 323 ; The Sterling, « Pittsburgh, &c. Rid. v. Noel, 77 106 U. S. 647. Ind. 110. And see PennsylYania Co. v. 1 Ante, § 20-79. Gallentine, 77 Ind. 322. * Chicago, &c. Rid. ti. Johnson, 103 ' Spear v. Marquette, &c. Eld. 49 111. 512, 522 ; Gardner o. Heartt, 8 Mich. 246. 213 § 483 WBONGS WITH PARTICULAR NAMES. [BOOK III. § 477. Further on, — in various connections, we shall have occasion to look into this subject more minutely. It is men- tioned here to prevent misapprehensions by the reader. VII. In Particular Cages. § 478. Universal. — The doctrine of negligence and con- tributory negligence extends through the entire law of non- contract rights and wrongs, though there is more of it under some heads than others. § 479. In other Connections, — as already stated,^ the sub- ject as to particular topics within the scope of the volume is explained. A few specimen illustrations, not likely to be looked for under the other titles, are — § 480. Forgery. — It is a species of negligence, though in some circumstances only slight, for one to pass as good the forged instrument of another with whom he has transactions.^ Therefore if a company makes a transfer of its stock under a forged letter of attorney, it, and not the purchaser without fault, must bear the loss.* § 481. Protest. — On a question of some conflict in opinion, it appears to be the just doctrine that, if an indorsed note is left with a bank for collection, and is not paid by the maker, the bank discharges its duty as to demand and notice, to charge the indorser, by putting it into the hands of a repu- table notary ; it is not liable for the notary's neglect.* § 482. Transmitting Money. — The United States mail is not in law regarded safer for the transmission of money than a private carrier or banker. Whether or not in a particular instance it is, depends on the amount, the proportional ex- pense, time required, distance, usage, and the like; so the question becomes one for the jury.^ § 483. Manufacture or Building. — Under the title Nuisance, which embraces more or less of what may be equally well 1 Ante, § 433. ♦ Britton v. Niccolls, 104 U. S. 757 ; " Bishop Con. § 676, 700. Bank v. Butler, 41 Ohio State, 519. ' Ashby V. Blackwell, 2 Eden, 299. For a partly analogous case, see Weyer- And see in this connection, Eouvant v. hauser «. Dun, 100 N. Y. 150. San Antonio Nat. Bank, 63 Texas, 610. > Buell v. Chapin, 99 Mass. 594. 214 CHAP. XXIV.] NEGLIGENCE, § 484 regarded as negligence, we saw that if one sends into the community a dangerous thmg, another casually injured by it may recover of him the damages.^ And this doctrine applies to any manufactured article, and to a building which one so carelessly and improperly erects that it falls, injuring third persons. They may have their suit against him.^ Within which principle, where one who had undertaken to build for another an elevator and it did not work well, sent his man to attend to it, a third person who in carrying out a direction from this man was injured by a defect in the elevator, was held entitled to his damages from the builder.^ § 484. The Doctrine of this Chapter restated. In the multitudinous activities of life, wherein of necessity men and their doings, property, and other interests come into contact, one who is duly careful avoids liability to anotlier casually injured. The other's loss is a tax which he pays for the privilege of living in society. But where men carry on their activities negligently, the result is not always so. If two are negligent together, and from their joint negligence an injury comes to one of them, he whose contributory negli- gence has thus combined with the other's negligence must bear the loss alone, the same as though the other had been careful ; except in admiralty, where commonly the loss is equally divided. But if one is negligent and the other is not, the party thus wholly in fault must pay to the other his dam- ages. Such is the general doctrine. So much of it as con- cerns contributory negligence has been qualified in Illinois, and perhaps in some degree in one or two of the other States. And there are various minor doctrines, which need not here be repeated. The subject of negligence occupies a large space in the law of non-contract rights and wrongs ; it more or less pervades the whole, and to some degree manifests itself in the other departments of the law. 1 Ante, § 413. 387 ; Erie City Iron Works v. Barber, » Godley v. Hagerty, 8 Harris, Pa. 6 Out. Pa. 156. ' Necker v. Harvey, 49 Mich. 5-17. 215 § 487 WRONGS WITH PABTICDLAB NABIES. [BOOK IH. CHAPTER XXV. UNNAMED WRONGS. § 485. Others with Names. — The foregoing twelve chap- ters, each devoted to a wrong to which the law has given a name, do not absolutely exhaust the list. Such torts as the violations of trademarks, copyrights, and patents might be added, but they are not within the limits proposed for this volume. And injuries to easements, to and by animals, and various others not quite unnamed will be treated of further on. Now, — § 486. "Wrongs not named. — If a wrongful act whereby one injures another has received no name, the consequence does not follow that it will be without redress. Our unwritten law is a system of reason, it is composed of legal principles,^ whereof the respective adjudications are but evidences ; and, as for them, the law dwells, to quote the words of Lord Mans- field, in their " reason and spirit," not in " the letter of par- ticular precedents." ^ But the name of a tort cannot even be the subject of a " precedent." Therefore the fact that we can find in our books no name for a wrong is not to any degree evidence that it is not actionable. §487. The Rules — whereby to determine whether or not a suit will lie for a given injury are interspersed with their illustrations throughout this entire volume, but largely they appear in its earlier chapters. The author would be happy could he here set down some one little rule, exact and easy, and safe for a child to handle, which, placed upon any piece in the infinite possible " crazy work " of future wrong, would precisely indicate whether, in shape and dimensions, it is 1 Ante, § 84. » Fisher i-. Prince, 8 Bur. 1363, 1364. 216 CHAP. XXY.] UNNAMED WRONGS. § 489 within or without the actionable class. But this, which would put the great lawyer and his small boot-black on one intellectual level, is impossible. Comyns's rule for ascer- taining whether or not the " action upon the case " will lie, is as near the desideratum as anything ; namely, " In all cases where a man has a temporal loss or damage, by the wrong of another, he may have an action upon the case to be repaired in damages." ^ A somewhat broader rule, yet equally indefinite, would be, that, whenever a man has received from another an injury through the violation of any legal duty which the other owes him, the law will give him its redress.^ Yet neither of these rules can be ap- plied except under the light of the entire legal system, each has its special and technical limitations and minor shapes, and either will relegate the boy trying it to his duty of growing to be a man in the law. Instances illustrative of what may be deemed the actionable wrong without name are — § 488. Suing without Authority. — If one brings a suit against another in the name of a third person who has not authorized it, he is answerable to the other in damages, though he acts without malice, so that the wrong is not ma- licious prosecution. It is simply a thing done unauthorized by law, wherefrom the complaining person has suffered.^ But — § 489. Instigating Suit. — It was held that one is not liable to a third person for instigating another to sue him, unless the suit is without cause. And this is plainly correct, since it cannot be wrong in a man to urge another to stand upon his legal rights. Blackford, J. added : " The law is said to be, that, if one procures another to sue me without cause, an action lies not against him who sued without cause ; but, for 1 Com. Dig. Action upon the Case, A. such person a remedy by action against * Not greatly different from this is the wrong-doer." the expression of Fay, L. J. in Harris v. » Bond v. Chapin, 8 Met. 31 ; Met- Brisco. X7 Q. B. D. 504, 511 ; namely, calf v. Alley, 2 Ire. 38 ; Foster v. Dow, '• When an unlawful act results in a 29 Maine, 442 ; Moulton v. Lowe, 32 particular wrong to a particular person, Maine, 466. our law, generally speaking, gives to 21T § 493 WRONGS WITH PARTICULAR NAMES. [BOOK III. this falsity in procuring my vexation, an action well lies." ^ So — § 490. la Nature of Malicious Prosecution. — There are other wrongs similar to malicious prosecution, which, coming short of it, are not called by that name. For example, it is actionable to take out and enforce an execution on a judg- ment which the party knows to have been paid.^ And any other like abuse of judicial process, not amounting to mali- cious prosecution, is within this rule.^ § 491. Dishonoring Check. — If a banker, having funds, wrongfully refuses to pay the depositor's check, — " an act particularly calculated to be injurious to a person in trade," — he may be sued in tort, though the wrong is believed to be without name. " The defendants," said Taunton, J., " were guilty of a breach of duty, which duty the plaintiff at the time had a right to have performed." * § 492. Not Discharging Mortgage. — One whose mortgage is on record is entitled, if he pays it, to have it discharged of record. And an equitable action will lie against another who refuses, to compel him.^ So, — § 493. liDticing to Break Contract. — Within the principle that it is an actionable seduction to entice away another's servant under contract,® it is actionable thus to procure any person to violate any contract validly subsisting between him and the party complaining." 1 Grove o. Brandenburg, 7 Blackf. Vt. 523 ; Seay v. Greenwood, 21 Ala. 234, 235, referring to Perren v. Bud, 491 ; Johnson v. Reed, 136 Mass. 421, 2 Cro. Ellz. 793 ; SavU v. Roberts, 1 423 ; Wicker i-. Hotchkiss, 62 Dl. 107, Salk. 13. And see Harris v. Brisco, 110 ; Wait v. Green, 5 Parker C. C. 185. 17 Q. B. D. 504. 4 Marzetti v. Williams, 1 B. & Ad. 2 Brown v. Feeter, 7 Wend. 301 ; 415, 424, 425 ; Rolln v. Steward, 14 Swan V. Saddlemire, 8 Wend. 676. But C. B. 595. See McGuire v. Kiveland, see Baugh v. Killingworth, 4 Mod. 13, 56 Vt. 62 ; Wittich v. Pensacola First 14. Nat. Bank, 20 Fla. 843. s Tomlinson v. Warner, 9 Ohio, 103 ; ^ Beach v. Cooke, 28 N. Y. 508. Fortman v. Bottler, 8 Ohio State, 548 ; « ^„tg^ g 370^ 37]^^ "Wilson V. Ontlaw, Minor, 367 ; Hudson ' Jones i>. Stanly, 76 N. C. 355, V. Howlett, 32 Ala. 478 ; Barnett v. 356. The cases to this proposition are Reed, 1 Smith, Pa. 190 ; Savage v. not numerous, yet it is believed to be Brewer, 16 Pick. 453 ; Parsons v. Har- sound. See Bishop Dir. & F. § 303. per, 16 Grat. 64 ; Mann v. Holbrook, 20 218 CHAP. XXV.] UNNAMED WBONGS. § 494 § 494. The Doctrine of this Chapter restated. Heads of subjects, divisions of them, names, little and great devices of authorship, clear and muddy arrangements, — these, and all other things of the like nature, whether ap- proved or disapproved by any or all of us, are foreign to the law, whereof they constitute no part. One who has suffered a legal injury may, if no technical rule appears barring him, have his redress. And it is not of the slightest consequence whether or not the wrong has been provided with a name. The illustrations of unnamed wrongs, given in this chapter, are not only not exhaustive, but they are simply minute parts of a very great and hitherto not accurately defined mass. 219 496 SORTS OP PERSONS AND COMBININGS. [BOOK IV. BOOK IV. PARTICULAR SORTS OF PERSONS AND COMBININGS. CHAPTER XXVI. THE ELEMENTS OF THE INTENT, INSANITY, AND DRUNKENNESS. § 195. Introduction. 496-504. Intent in General. 505-510. Insanity. 511-515. Drunkenness. 516. Doctiine of Chapter restated. § 495. How Chapter divided. — We shall consider, L The Intent in General ; II. Insanity ; III. Drunkenness. I. The Intent in General. § 496. Varying with Subject — (Crimes — Torts). — All acts proceed from the mind. And all receive more or less color from the intent which prompted them. We ordinarily contemplate the intent as good or evil; but, looking at it more minutely, we discover various degrees and forms of good on the one side, and of evil on the other. In the crim- inal law, the question of the intent is not the same as in any department of civil jurisprudence.^ There the State is the plaintiff, it seeks no compensation for an injury, but its object is punishment and repression. And it would do no good, while it would be an act of oppression, bringing contempt on a government professing to be civilized, to impose pains upon » Ante, § 16 ; 1 Bishop Crim. Law, § 204-429. 220 CHAP. XXVI.] INTENT, INSANITY, DRUNKENNESS. § 498 one who, misled by the light which God and man gave him, had, impelled by the purpose to discharge his legal duties, unfortunately done what under the real, unseen facts was a technical violation of law. Therefore, in criminal jurispru- dence, nothing which is not the outflow of a criminal mind is a crime. On the otlier hand, the plaintiff in a suit for a civil wrong is a private person ; and he seeks, not punishment, but compensation for his suffering or loss. To maintain his suit, the defendant must have done something, and the effect of the doing must have been an injury to him.^ The doings of people, wherefrom injury comes to other people, are innumer- able. The law, to make some of them actionable, requires one or another form of evil intent in the doer, according to the nature of the particular case. We have had many illus- trations of this in the foregoing chapters. There are other forms of civil wrong wherein the intent, whether good or evil, is of no legal consequence ; if any act of the defendant, what- ever its moral quality, has resulted in the injury, he must make compensation. Hence, — § 497. Doctrine defined. — In the law of non-contract civil wrongs, there is no universal rule either requiring or not re- quiring a malicious or other evil intent in the doer, but each wrong must be considered with respect to its class ; so that for some an action will lie irrespective of the motives which prompted them, while others to be actionable must have pro- ceeded from one or another form of the evil mind, according to the particular case or class. Thus, — § 498. Irresistible Compulsion. — One who is impelled to a thing by a power which he cannot resist, is, on principles ex- plained in a preceding chapter,^ without liability to a person casually injured. To be within this exemption, it is not enough that he did not mean to inflict the particular or any harm, he must be utterly without fault.^ The law, in this class of cases, looks upon the act, not as done by the person ostensibly performing it, but by the superior power. Again, — » Ante, § 22-39. 213, 8 Moore, 63 ; Davis ti. Saunders, » Ante, § 155-185. 2 Chit. 639 ; Moi^gan ■/. Cox, 22 Mo. ' Wakeman v. Bobinson, 1 Bing. 373. 221 § 501 SORTS OP PERSONS AND COMBININGS. [BOOK IV. § 499. Intent immateriaL — Assuming tbe case to be one in which the law regards the ostensible as the real doer, and not the sort of ease just mentioned, if the complained-of injury is a trespass to property real or personal, it is no defence to the doer that he was without moral fault ; as, for example, that he supposed the property to be his,^ or another's whom he was assisting,^ or otherwise committed the trespass inadver- tently.^ Lack of evil motive may simply reduce the damages.* Not perfectly,^ but to a degree not quite definable, this doc- trine extends to trespass to the person ; as, if an arresting officer through an honest mistake takes another than the one subject to his particular authority, — for instance, another than the one mentioned in his precept, — not being led thereto by any trick or falsehood of the other, he is liable.^ § 500. Purposed Injury. — It has already been explained ^ that one who intentionally injures another cannot avail him- self of the various excuses through which the well-meaning or less evil-meaning inflicter of damage often escapes. But — § 601. Modified Evil Intent. — A very large proportion of the actionable wrongs proceed from negligence,* which is neither an intent to commit the injury nor a mental condition free from fault. There are other mental states occupying a like middle ground. Thus, if two pei'sons are fighting, and one of them unintentionally strikes a third, he is answerable to the third person, and his want of malice toward him will only mitigate the damages.' The reason is simply that the injury came from an intentional, unlawful act ; while a like injury from a well-meant lawful one would not be actionable if carefully performed, though if negligently it would be.^" 1 Ante, § 13, 14, 19, 101 ; Blaen » Ante, § 195. Avon Coal Co. v. McGnlloh, 59 Md. 403. " Hays v. Creary, 60 Texas, 445 ; 2 Wallard v. Worthman, 84 111. 446. Shanley v. Wells, 71 111. 78. » Basely v. Clarkson, 3 Lev. 37 ; ' Ante, § 142-147. Covell V. Laming, 1 Camp. 497 ; Jordan 8 Ante, § 433-484. V. Wyatt, 4 Grat. 151. See and com- » Ante, § 181 ; James v. Campbell, pare Young ». Vaughan, 1 Houst. 331 ; 5 Car. & P. 372. Brooks 11. Olmstead, 5 Harris, Pa. 24 ; i" Ante, § 178-181 ; Vandenburgli v. Graves v. Severens, 40 Vt. 636 ; Keirn Truax, 4 Denio, 464 ; Noyes v. Shep- V. Warfield, 60 Misisis. 799. herd, 30 Maine, 173 ; Weaver v. "Ward, * Hatch V. Pendergast, 15 Md. 251. Hob. 134, Sir F. Sloore, 864. 222 CHAP. XXVI.] INTENT, INSANITY, DRUNKENNESS. § 505 § 502. Knowledge, — which is an element in the intent, is often essential to liability.^ Thus, to charge a town or other corporation with damages from a defect in the highway, or from any other nuisance which it is under obligation to re- move, its actual or constructive knowledge of the thing must be shown.^ So a railway conductor is not liable for permit- ting a passenger to travel on the road with goods known by him to be stolen, where he does not know also that the pas- senger is the thief or the person afterward suing him is the owner.^ An agister of cattle turned them into a pasture with other cattle, and they contracted the Texas fever ; he did not know of the danger, so he was held not responsible to the owner.* One running a railway train has additional respon- sibility from knowing that there is on the track a person lia- ble to be run over.^ § 503. Legal Right. — One may stand on a legal right,^ — for example, expel another by lawful means from his counting- room," or enforce against another a legal demand,^ — however improper the motive impelling him. § 504. These Illustrations — simply show that, as our defi- nition explains, there is no general doctrine of the intent in these non-contract civil wrongs. The question depends upon the particular wrong, or the class to which the case belongs. II. Insanity. § 505. General. — Insanity, however viewed anciently, is in modern times deemed a visitation from God, — a disease or mal-construction of the mind. So long, therefore, as the law is a system of reason, and the accepted deductions of reason ^ 1 Murray v. Young, 12 Bush, 337 ; » Gibbs v. Coykendall, 39 Hun, 140. Eamsey v. RQey, 13 Ohio, 157. See Bradford v. Floyd, 80 Mo. 207. 2 Foster v. Boston, 127 Mass. 290 ; ' International, &c. Ey. v. Smith, Reed v. Northfield, 13 Pick. 94 ; Con- 62 Texas, 252. hocton Stone Koad v. Buffalo, &c. Rid. » Ante, § 103. 51 N. Y. 573 ; Morse v. Fair Haven '' Brothers v. Morris, 49 Vt. 460. East, 48 Conn. 220. s Macey v. Childress, 2 Tenn. Ch. « Randlette v. Judkins, 77 Maine, 438. 114. " Ante, § 88. 223 § 507 SORTS OP PERSONS AND COMBININGS. |^BOOK IV. in one part of it are authority in any other part, the conclu- sion must remain that, since the act of God, whereof insanity is a particular form, excuses an ostensible evil doing,^ this special form insanity, when suflBciently complete and pro- found, frees, as well from civil liability as from criminal, any injurious act whereof it is the cause. Still the utterances of judges and legal writers, especially those in the older books, not much modified by the later, are the direct reverse of this ; namely, that insanity furnishes no excuse for a civil tort." Looking below these mere dicta, we find the decisions to be partly so, not wholly. Thus, — § 506. In Defamation. — In reason, an insane person can- not have the malice essential in slander and libel.^ And this doctrine may be deemed to be sufiBciently, though not very firmly, established in authority.* § 507. 'Where Intent Immaterial. — In those cases wherein the intent is immaterial,^ there is abundant authority for say- ing that insanity constitutes no defence. And sometimes the judges, to give effect to the broader dictum that insanity can- not be pleaded to an action of tort, add that it is because in tort the intent is not material.^ An illustration of this is a trespass by an insane person ; it is uniformly held to be action- able.'^ The reason whereof has been stated to be, because "no man shall be excused of a trespass except it may be judged utterly without his fault ; as, if a man by force take my hand 1 Ante, § 166, 167, 496. ' > Ante, § 257, 261, 280, 306. 2 Weaver ». Ward, Hob. 134, "if a * Yeates v. Reed, 4 Blackf. 463 ; lunatic hurt a man, he shall be answer- Bryant i'. Jackson, 6 Humph. 199 ; able in trespass ; " Com. Dig. Action Homer v. Marshall, 5 Munf. 466: In upon the Case for Negligence, B, 1 ; Dickinson v. Barber, 9 Mass. 225, no Bae. Abr. Idiots and Lunatics, E, Tres- opinion was expressed on this precise pass, G ; 1 Chit. PI. 76, " although a question ; but it was deemed that, if lunatic is not punishable criminally, he the insanity was so profound as to ren- is liable to a civU action for any tort he der the words without effect, it would may commit ; " Ward v. Conatser, 4 at least in this way be a defence, s. p. Baxter, 64 ; Mordaunt v. Mordaunt, Gates v. Meredith, 7 Ind. 440. Law Rep. 2 P. & D. 103, 142 ; Taggard 6 A„te, § 499. ». Innes, 12 IT. C. C. P. 77 ; Krom v. ^ Krom v. Schoomnaker, 8 Barb. Schoonmaker, 3 Barb. 647, 650 ; Morse 647, 650. V. Crawford, 17 Vt. 499, 502 ; Cross v. '> Morse v. Crawford, 17 Vt. 499, Kent, 32 Md. 581 ; Haycraft v. Creasy, 502 ; Behrens o. McEenzie, 23 Iowa, 2 East, 92, 104. 833, 343 ; Weaver v. Ward, Hob. 134, 224 CHAP. XXVI.J INTENT, INSANITY, DRUNKENNESS. § 510 and strike you." ^ Now, this explanation relegates the case, not to the doctrine of immaterial intent,^ but to that of irre- sistible compulsion,^ wherein the act of God, of which insan- ity is an instance, excuses. So that on this question particular cases and legal doctrine are in flat conriict. Still, — § 608. Further, in Principle. — As well in principle as in authority, there are distinctions between insanity in civil jurisprudence and in criminal. In the law of contracts, for example, an insane person is often and properly holden to the civil suit where he would not be responsible for a crime. This occurs when some benefit has been conferred upon him, such as where he has received necessary sustenance ; and, though he lacks the capacity to promise remuneration, the law prom- ises for him.* Undoubtedly, on just principle, something anal- ogous to this pervades the law of non-contract civil rights and wrongs. Thus, — § 509. Lunatic Innkeeper. — In an old action against an innkeeper for not keeping the goods of his guest safely, the innkeeper set up the defence that he was insane, but the de- cision was against him. " For the defendant, if he will keep an inn, ought at his 'pefil to keep safely his guest's goods ; and, although he be siek, his servants then ought carefully to look to them. And to say he is of non-sane memory, it lieth not in him to disablar himself, no more than in debt upon an obligation." * / § 510. Restrainiiig Insane Person. — " God forbid that a man should be punished for restraining the fury of a lunatic." ^ This right of restjlraint is universal, and is exercised both with and without statiitory authorization.'' Sir F. Moore, 864 ; Cross v. Kent, 32 " Lord Mansfield in Brookshaw v. Md. 581. Hopkins, LofFt, 240, 243. 1 Weaver v. Ward, supra. ' King v. Ohio, &c. Ry. 22 Fed. Rep. 2 Ante, § 499. 413 ; International, &c. Ry. v. Leak, s Ante, § 498. 64 Texas, 654 ; Royston's Appeal, 53 * Bishop Con. § 955-978. Wis. 612 ; Atchison, &c. Rid. v. Weber, * Cross V. Andrews, 2 Cro. Eliz. 33 Kan. 543 ; Look v. Dean, 108 Mass. 622. 116. 15 225 513 SORTS OF PERSONS AND C0MBININ6S. [BOOK IV. III. Drunkenness. § 511. General. — In the criminal law, wilful drunkenness is deemed so far wrongful that it supplies the place of a gen^ eral criminal intent ; therefore, as general doctrine, it is no excuse for crime. But it renders impossible the commission of any particular crime which, for its constitution, requires a special form of the criminal intent, if so deep as to incapaci- tate the mind for such specific intent.^ In the modern law of contracts, contrary to the old doctrine, it makes void a contracting done while it has drowned the " agreeing mind." ^ It is a specific, not a mere general, state of the mind which creates a contract ; so that the criminal law and the law of contracts do not differ in respect of drunkenness. And, in principle, the same rule would seem to apply to torts ; namely, that being drunk is not a general defence, but it may be available where the tort is of a particular sort requir- ing a special intent. The authorities seem not to have done much for or against this proposition. To resort to such as we have, — ' § 512. In Slander. — Drunkenness has been adjudged to be no mitigation in an action for slander.^ § 513. Contributory Negligence — is the product of a gen- eral ill-condition of the mind, not of a specific intent. There- fore, on principle, drunkenness does not excuse it ; and so also are the authorities.* Indeed, drunkenness tends to show contributory negligence.^ On the other hand, the fact that one is drunk or a drunkard does not justify another in even negligently injuring him ; ^ and, if known to the 1 1 Bishop Crim. Law, § 397-416. York Cent. &c. Rid. 38 Hun, 33 ; Little 2 Bishop Con. § 980. Rock, &o. Ry. «. Pankhurst, 36 Ark. ' Mix V. McCoy, 22 Mo. Ap. 488. 371 ; Illinois Cent. Rid. n. Hutchinson, * Alger V. Lowell, 3 Alien, 402 ; 47 111. 408 ; Monk v. New Utrecht, 104 Welty V. Indianapolis, &c. Rid. 105 N. Y. 552 ; East Tennessee, &c. Rid. •>. Ind. 55 ; Huhbard ». Mason City, 60 Winters, 85 Tenn. 240. Iowa, 400 ; O'Ha^an v. DUlon, 42 N. Y. 6 jUinois Cent Rid. ». Cragin, 71 Super. 456 ; Illinois Cent. Rid. v. 111. 177. Cragin, 71 111. 177 ; Cramer v. Bur- « Baltimore, &c. Rid. v. Boteler, 38 lington, 42 Iowa, 315 ; Smith v. New Md. 568 ; Milliman ii. New York, &c. 226 CHAP. XXVI.3 INTENT, INSANITY, DBUSKENNESS. § 516 other,^ it may call for special care arising from the particular danger.* Intoxication, therefore, may be matter for Sie^con- sideration of the jury.^ § 514. As NegUgence. — An employee's dnmkenness or ha- bitual intemperance, if known to the employer, wiU in proper circumstances be treated as negligence in the latter.* § 515. Trespass. — Whatever may be the doctrine as to insanity where the insane person is utterly without fault,® volontary drunkenness is never looked upon by the law as pure white, therefore evidently it does not excuse a trespass.® One sued for driving into the carriage of a licensed liquor- seller claimed in defence that the plaintiff sold him intoxi- cants which incapacitated him for driving properly, but the defence was adjudged not available.^ § 516. The Doctrine of this Chapter restated. There is no one state of the mind which the law has made a common element in actionable non-contract wrongs. How- ever important the mental condition may be, it is a question pertaining simply to the particular tort or class. To this proposition there is the single exception, that the act of God, or whatever else is unavoidable, wiU in all these cases excuse an injurious doing. But unfortunately we have adju- dications which seem to make one exception to this excep- tion ; namely, that, when the act of God takes the form of insanity, the afflicted individual becomes answerable for it to another casually injured. This exception to the exception Bid. 6 Thomp. & C. 585, 4 Han, 409 ; Ditchett v. Spayten Doyril, &c Bid. 5 HoQston, &C. Ry. v. Beason, 61 Texas, Han, 165. 613 ; Toledo, &c By. v. Biley, 47 IlL * Chicago, &c. Bid. b. Snlliran, 63 514. DL 293 ; Cl^horn ». New York Cent. i Ante, § 466. *c. Bid. 56 N. Y. 44. » Werner v. Citizens By. 81 Mo. « Ante, § 505. 368 ; Eean v. Baltimore, &c. Bid. 61 ■ SnUivan t>. Uurphy, 2 Miles, 298 ; Md. 154 ; Yamall r. St. Lonis, &c. By. Barbee v. Beese, 60 Missis. 906. 75 Mo. 575 ; Lorasville, &c. Bid. v. ' Cassady n. Magher, 85 Ind. 228. Sollivan, 81 Ky. 624 ; Gill v. Bochester, Compare ?rith Engleken v. Hilger, 43 &c. Bid. 37 Hun, 107 ; Seymer v. Lake, Iowa, 563 ; Kearney v. Fils^gerald, 43 66 Wis. 651. Iowa, 580. > Fitzgerald v. Vesfam, 52 Wis. 354 ; 227 § 516 SOBTS OP PERSONS AND COMBIKINGS. [bOOK IV. lies too near the old doctrine of the common law, enforced by Sir Matthew Hale and other admirable judges, that for a woman to be made by superior powers a witch justifies put- ting her to death, to be fully in accord with the civilization of the present day. So there is here an opportunity to invite the fresh attention of the courts to this question. Drunkenness, however overpowering, is not the act of God, but the very weak act of the man himself, for which he is responsible. So it has not the same excusing effect which in just principle should be given to insanity. 228 CHAP. XXVn.] PERSONS AND FORCES COMBINING. § 518 CHAPTER XXVII. THE COMBININGS OF PERSONS AND FORCES. § 517. Aireaay, — in^ preceding chapters, we have seen something of the principles which govern here.^ We shall not attempt to avoid repetition while calling them to mind with special reference to the purposes of this chapter. § 618. The Fundamental Doctrine — is, that, since the habi- tations and life of man are in the midst of constantly active forces in nature, and his necessities compel him to be perpet- ually active also, it is not possible in jurisprudence nor would it be just to limit one's responsibility for harm inflicted on another through his acts, to the particular injuries whereof those acts are the sole cause. Indeed, a sole cause is a thing seldom found in our complicated world. Nor would it be practicable, nor yet is it demanded by any principle of justice, to take into the account all the combining causes of an injury, and charge the author of each cause with simply his propor- tion of the damage. Therefore the rule of the law is, that a person contributing to a tort, whether his fellow-contributors are men, natural or other forces, or things, is responsible for the whole, the same as though he had done all without help.^ The limit to this rule, in civil jurisprudence, is simply what is required by another rule ; namely, that, — 1 Ante, § 39-45, 450-453. Iowa, 219 ; Attorney-General v. Wil- ' Ante, § 39, 450 ; Louisville, &c. son, Craig & P. 1 ; Murphy v. Wilson, Eld. ». Case, 9 Bush, 728 ; Barrett v. 44 Mo. 313 ; Hill v. Goodchild, 5 Bur. Third Are. Eld. 45 N. Y. 628, 631 ; 2790 ; Brown v. Allen, 4 Esp. 158 ; Tompkins i;. Clay St. Eld. 66 Cal. 163 ; MitcheU v. Milbank, 6 T. E. 199 ; Nagel V. Missouri Pac. Ey. 75 Mo. 653 ; O'Shea v. Kirker, 4 Bosw. 120 ; Bulk- Minneapolis Mill Co. V. Wheeler, 31 ley v. Smith, 1 Dner, 704 ; Gates v. Minn. 121 ; Fairbanks v. Kerr, 20 Fleischer, 67 Wis. 504. Smith, Pa. 86 ; Calder v. Smalley, 66 229 § 521 SORTS OP PERSONS AND C0MBINIHG8. [BOOK IV. § 519. One Compensation — ^Sight in Plaintiff). — Both in natural justice and in law, a person who has suffered an in- jury is entitled to receive his damages but once.^ For the principle is universal that one can enforce from another pay- ment or other redress only to the extent to which his right and the other's wrong combine ; ^ in other words, every plain- tiff must stand equally on his own right and the defendant's wrong.^ There is as to this a broad distinction between civil jurisprudence and criminal. If in a joint civil trespass five hundred men carry away and ruin another's hat worth two dollars, it would be a manifest overdoing of justice to compel each to pay two dollars to the owner, who would thus receive one thousand dollars for his hat. But if the five hundred jointly stole the hat, and the State indicted them for the crime, the fine of two dollars imposed upon each, and the compelling of every one of them to pay it as though he were the sole thief, would be a very mild administration of justice ; for the State is as much offended against, and it should and does make the punishment of each individual as severe, when five hundred combine in a crime as when one commits it alone.* Still, — § 620. Sufferer and Doer, compared. — The wrong-doer has in himself no higher claim to be let off lightly in civil juris- prudence than in criminal. The distinction is derived solely from the limitation of the plaintiff's right, not in any degree from merit in the defendant. So that it would be no injustice to any one of the five hundred, in the civil case just supposed, to compel him to pay alone the full value of the hat ; and, in law, this sort of thing is often required. Thus, — § 521. Sue All, or Part — One who has suffered from the joint tort of several persons may bring his suit against all of 1 LiTingston ». Bishop, 1 Johns. Dufresne v. Hutchinson, 3 Taunt. 117 ; 290 ; Metz v. Soule, 40 Iowa, 286 ; Westbrook v. Mize, 35 Kan. 299. Brown v. Eencheloe, 3 Coldw. 192 ; ^ ^^te^ § 22-34. Hammatt v. Wyman, 9 Mass. 138, 142 ; « Eex v. Worcester, Vaugh. 53, 60 ; Drake v. Mitchell, 8 East, 251, 258 ; Tracy v. Norwich, &c. Eld. 39 Conn. Cocke II. Jennor, Hob. 66 : Biid v. Ean- 382 ; Fosters. Evans, 61 Mo. 39 ; Eich- dall, 3 Bur. 1345 ; Murray v. Lovejoy, ardson v. Pulver, 63 Barb. 67 ; Wright 2 Clif. 191 ; Snow v. Chandler, 10 N. H. v. Defrees, 8 Ind. 298. 92; Pogel v. Meilke, 60 Wis. 248; ♦ 1 Bishop Crini. Law, § 957 and note. 230 CHAP. XXVII.] PERSONS AND FORCES COMBINING. §522 them collectively, or against any one or number less than all, at his election ; while, as just said, he can put into his pocket the damages but once. Whether or not he can proceed against all so far as to take out several executions is a ques- tion of practice, not within the scope of this volume.^ There may be an exception to this rule in a particular case, grow- ing out of its special nature; as, where the tort is founded on a joint contract,^ or the like,* the joinder of all as de- fendants may be required. Descending now more into the particulars, — § 522. Persons Combming — (The Rule). — All who con- tribute to a tort, even by their wills alone, especially, there- fore, all who contribute by their acts, even though in an inferior degree, are, whether they are personally present or absent at the doing, liable to the person injured, each for the entire damage,^ and it cannot be apportioned;^ the 1 Cases cited to § 519 ; Heydon's Case, 11 Co. 5 a ; Blann v. Crocheron, 19 Ala. 647 ; Davis v. Taylor. 41 III. 405 ; Stone v. Matherly, 3 T. B. Monr. 136 ; North Penn. Rid. r. Mahoney, 7 Smith, Pa. 187 ; McGee v. OTerby, 7 Eng. 164 ; Jarvis v. Blennerhasset, 18 Wend. 627 ; Elauder v. McGrath, 11 Casey, Pa. 128 ; Milfoid i;. Holbrook, 9 Allen, 17 ; Graham v. Houston, 4 Dev. 232 ; The Bemina, 12 P. D. 58, 83, 90 ; Creed v. Hartmann, 29 N. Y. 591 ; Sutton v. Clarke, 6 Taunt. 29 ; Wright r. Lathrop, 2 Ohio, 33 ; Knick- erbacker r. Colver, 8 Cow. Ill ; Elliott 0. Hayden, 104 Mass. 180 ; Brinsmead V. Harrison, Law Rep. 6 C. P. 584, 7 C. P. 547 ; Fleming v. McDonald, 50 Ind. 278. » WeaU V. King, 12 East, 452. ' Low V. Hnmford, 14 Johns. 426. * Berry v. Fleteher, 1 DiL 67 ; Bell V. Miller, 5 Ohio, 250 ; Clark v. Bales, 15 Ark. 452 ; Brooks v. Ashbnm, 9 6a. 297 ; Woodbridge v. Conner, 49 Maine^ 353 ; Menham v. Edmonson, 1 B. & P. 869, 371 ; Gndger v. Western >'orth Car. Eld. 21 Fed. Eep. 81 ;. Olsen ti. Upsahl, 69 m. 273 ; Wallard v. Worth- man, 84 m. 446 ; Brown v. Perkins, 1 Allen, 89; Shepherd v. McQuilkin, 2 W. Va. 90 ; Lewis o. Johns, 34 Cal. 629 ; McMannus v. Lee, 43 Mo. 206 ; Elder v. Frevert, 18 Nev. 446 ; Barker v. Bra- ham, 2 W. Bl. 866, 868 ; Brown v. Lent, 20 Vt. 529 ; Whitney v. Turner, 1 Scam. 253 ; Whitaker ». English, 1 Bay, 15 ; Chanet v. Parker, 1 Mill, 333 ; Bath. V. Metcalf, 145 Mass. 274 ; Free- man V. Scurloek, 27 Ala. 407 ; Garth v. Howard, 8 Bing. 451 ; Sikes v. Johnson, 16 Mass. 389 ; Bird u. Lynn, 10 B. Monr. 422. 5 HiU V. Goodchad, 5 Bur. 2790 ; Eeegan v. Hayden, 14 R. I. 175 ; Beal c. Finch, 1 Eeman, 128 ; Fuller v. Chamberlain, 11 Met 503. This is not the admiralty rule in a case'of collision ; as, if a vessel and her tow, both being in fault, collide with another not in fault, each of the former two must pay half the damages. Still, "if," in the words of Clifford, J. "either of the faulty parties is unable to pay the whole of his moiely, it is, in general, the right of the injured party to collect the bal- ance of the other faulty party." The Virginia Ehiman, 97 IT. S. 309, 317. 231 § 524 SORTS OF PERSONS AND COMBININGS. [BOOK IV. same as, if the wrong were a crime of the grade of misde- meanor, all would be answerable as principal doers.^ For example, — § 523. Present and Encouraging. — All who are present while others are committing a tort, and encouraging them, though not otherwise taking part therein, are in the same manner and degree answerable to the person injured as though they did it with their own hands.^ But a mere pas- sive presence, without any proven participation of the will, or any act encouraging or discouraging the doing, will not bring the case within this rule ; ^ while yet, from the circumstances, joined with presence without dissent, a participation may be inferred by the jury.* It may be inferred, for example, where one present grossly neglects to rescue a feeble old man from persons who are mercilessly beating him.* And it is a clear participation for one, with the intent to get up a fight, to go with others to the place, if the latter there carry the purpose into execution.® After the wrong has been done, the mere subsequent approval of it will not create liability.^ So,— § 524. Not Present. — In the same manner, one may be liable though not present. A familiar instance is where a master is holden for a wrong done by his servant in his ab- sence.® And it is common doctrine that the procurer of a thing which another executes elsewhere than at the place of procurement is chargeable as doer.^ Or, there may be a mix- ture of presence and absence ; '" as, in trespass to goods, if two persons engage therein, and one carries away a package while 1 1 Bishop Crim. Law, § 628 et seq., " Ehinehart v. Whitehead, 64 Wis. 685, 686 ; Whitney v. Turner, 1 Scam. 42. 253. • ' Grand v. Van Vleck, 69 111. 478 ; 2 Brown v. Perkins, 1 Allen, 89, 98 ; Cooper v. Johnson, supra. Little V. Tingle, 26 Ind. 168 ; Frantz v. » Post, § 610. Lenhart, 6 Smith, Pa. 365 ; United ' 1 Bishop Crim. Law, § 685, 686 ; States V. Ricketts, 1 Cranch C. C. 164 ; Baxter v. AVamer, 6 Hun, 585 ; Jen- Cooper V. Johnson, 81 Mo. 483. nings v. Van Sohaick, 13 Daly, 438 ; ' Miller v. Shaw, 4 Allen, 500 ; Fow v. Roberts, 12 Out. Pa. 489 ; Jar- Berry V. Fletcher, 1 Dil. 67. vis v. Baxter, 52 N. Y. Super. 109. 4 Brown v. Perkins, 1 AUen, 89. i» Stansbury v. Fogle, 37 Md. 869 ; 5 Gillon V. Wilson, 3 T. B. Monr. Qark v. Newsam, 1 Exch. 131. 217. 232 CHAP. XXVII.] PERSONS AND FORCES COMBINING. § 525 the other is putting up another, which both take off together, they are jointly answerable for the whole.^ § 525. Sort of Wrong — (Oral Slander — Combined Shooting — 'Whipping). — We thus see that, to charge one with a tort by reason simply of his having participated therein, it is im- material whether he was present or absent at the doing, and whether it was his will alone, or his act, that entered with the acts of others into the completed wrong. The conse- quence whereof is that the doctrine is universal, and that .there is no tort of a sort to be committed by a union of intent and act, to which it dees not in full apply. For example, if the tort consists of putting a physical thing in motion, as where a person beats another with a whip, one will be a joint doer if he instigated it, though he is miles away when the whipping is given.^ Moreover, since the concurrence of the will without any act suffices, one may be chargeable by reason of such concurrence though, in addition to the fact of his not personally doing the act, it is of a sort which he could not personally perform. We have an illustration of this in the criminal law, which in this particular is identical with the law of civil torts. A husband has no legal capacity to com- mit a rape on his wife, and a woman has no physical capacity ; yet, if the husband and the woman are present encouraging a man of legal and physical capacity in the commission of it, both may be indicted with him as principal offenders.^ There are in the reports some inconsiderate diota, evidently not law, contrary to this. We cannot better state them than in the words of an excellent contemporary work on Torts. " Some wrongs," it is there said, " are in their nature necessarily individual, because it is impossible that two or more should together commit them. The case of the oral utterance of defamatory words is an instance ; this is an individual act, because there can be no joint utterance. He alone can be liable who spoke the words ; and, if two or more utter the same slander at the same time, still the utterance of each is 1 Harris v. Rosenberg, 43 Conn. 227. ' 2 Bishop Crim. Law, § 1116, 1135 ; 2 Sikes V. Johnson, 16 Mass. 389 ; Bishop Dir. & F. § 914. Avery v. Bulkly, 1 Root, 275. 233 § 525 SOBTS OF PEESONS AND COMBIKINGS. [BOOK IV. individual, and must be the subject of a separate proceeding for redress." ^ Now, among the most common proceedings in our courts are trials for murder wherein, several persons combining to harm another, one shoots him with a firearm, and all are tried and convicted together. But the pulling of the trigger is the work of one alone. It would indeed be the- oretically possible for all to pull it together, just as all might pronounce together words of slander ; but the cases in contem- plation are those wherein, in fact, one alone did it. And, pre- cisely following this common course in criminal jurisprudence,, it has with unquestionable correctness been adjudged in the law of torts that, if several persons meet, and by a mutual understanding arrange themselves on opposite sides, and enter into a combat with pistols, then, should a passer-by be wounded by a shot from any one of the pistols, all will be jointly and severally liable to him in a civil action for the damage. And it will be immaterial whether a defendant in the action, or any one else of the party, fired the shot.* The doctrine of the law is, as already explained, that an action- able tort consists of the two elements of will and perform- ' Cooley Torts, 124, referring to conrts to overturn every case which Chamberlain v. White, Cro. Jac. 647 ; seems to sustain it. Let lis suppose Swithin v. Vincent, 2 Wils. 227 ; that a band of over-ardent politicians, Chamberlaine v. Willmore, Palm. 313 ; understanding that a newly elected Fatten v. Gumey, 17 Mass. 182 ; The President was considering whether or State V. Ronlstone, 3 Sneed, 107 ; Webb not to take into his cabinet a person V. Cecil, 9 B. Monr. 198. We have in obnoxious to them, should meet and the criminal law books more or less of concoct a slanderous falsehood of this the like sort. For example, 2 Bishop person, with the view of preventing his Crim. Proced. § 61, 811. And see, as appointment. Having adjusted the de- expressing the correct doctrine, 2 Bishop tails of what they know to be a lie, Crim. Law, § 948. I do not propose to and appointed one of their number as inquire how far the authorities cited spokesman, they march together into by Cooley sustain his text ; I have no the presence of the President, the one doubt they were carefully considered utters the slander, the others bow their by him ; certainly his language accoi-ds approbation, and together the conspira- with what is found in some other books, tors retire. Obviously, upon the face and for the present purpose I accept it of this case, it is the ordinary one of as proof of what has the semblance of a joint tort-feasors, and to hold other- doctrine of the law. And still it is so wise would be to overthrow the whole directly antagonistic to what is firmly law of the subject. See, as illustra- settled, both in reason and in authority, tive, Parkes v. Prescott, Law Bep. 4 that it cannot be law, that it is not Ex. 169. law, and that it is the first duty of the ' Murphy v. Wilson, 44 Ho. 313. 234 CHAP. XXVII.] PERSONS AND FORCES COMBINING. § 526 ance ; and he who palpably contributes to either element, though his contribution consists of but a small part of it,^ is responsible for the whole. If one has will, and he mingles it with the wrong-doing of another, or force, and he puts it into the compound, it is quite immaterial that he could not or did not do more. This broader and firmer doctrine, by its nature and by its terms, includes the just-stated case of oral slan- der, and it is impossible that it and the contrary doctrine in slander should stand together. Judges, whether on or off a bench, cannot establish contradictions. Many assert that the Almighty cannot, but our present argument does not require us to look higher than a bench of common-law judges. § 526. Neglects. — Commonly, where the law has cast a duty upon one to another, a simple neglect to discharge it, whereby the other has suffered an injury, is actionable.^ For example, it is so in the case of one who is erecting a building on a street ; he must employ safeguards against accidents to persons coming in lawful contact with his operations, and if he does not he is answerable for the damages to an individual injured.' Thereupon, if two persons stand side by side, or if they are engaged in some common enterprise, and a duty rests on one but not on the other, the former only is liable to a third person who suffers from the duty not being done.* And still, if both owe the duty, the two are in like circum- stances jointly as well as severally responsible.^ Now, if the duty rests only on one, can the other by any joining of will with his become answerable for his neglecting it ? This would seem to be a question rather of mental philosophy than of law. As, in such a case, neither party did anything, there was no contribution by act. The mere concurring presence, 1 Ante, § 39, 522 ; Slater v. Merse- * Compare with post, § 628. reau, 64 N. Y. 138 ; Union By. &c. Co. * Hawkesworth v. Thompson, 98 V. Shacklet, 119 lU. 232. Mass. 77 ; Wilson v. Peto, 6 Moore, 2 Ante, § 132, 135-137, 139, 140 ; 47 ; Gary v. Webster, 1 Stra. 480 ; Gnlly V. Smith, 12 Q. B. D. 121. Wright v. Wilcox, 19 Wend. 343 ; Vary ' Samyn v. McClosky, 2 Ohio State, v. Burlington, &c. Rid. 42 Iowa, 246 ; 536. Of the like sort, Whirley v. Gulf, Sec. Ry. v. Dorsey, 66 Texas, 148 ; Whiteman, 1 Head, 610 ; Scott v. Burrows v. March Gas, &c. Co. Law Hunter, 10 Wright, Pa. 192 ; Lampar- Rep. 6 Ex. 67, 7 Ex. 96. ter V. Wallbanm, 45 IlL 444. 235 § 529 SORTS OP PERSONS AND COMBININGS. [BOOK IV. or the mere mental satisfaction that nothing was done, would not constitute a contribution by will.^ If the negligence con- sisted in forgetfulness, it could not be augmented bj a solici- tation to forget. But there probably are forms of negligence to which there may be a contribution by mere will ; in such a case, the contributor will be responsible. § 527. Responsible combining with Irresponsible Force. — It being thus no protection to a wrong-doer that the acts of responsible persons were united with his act or intent,^ a fortiori the combining with it of irresponsible forces, such as those of nature or a disease, will not relieve him.^ For ex- ample, if one inflicts injury on a sick person, the latter's suit for damages is not taken away by a showing that, if he had been well, no disease operating with the wrong, he would have suffered no harm.* § 528. New Force Subsequent. — One's responsibility for his acts is not limited to their immediate effects. He is lia- ble also for their natural and probable consequences, if of a magnitude justifying the law's interference, and not too re- mote. Nor is it material whether those consequences come from the acts alone, or from them and subsequent indepen- dent forces operating with them, provided those forces are of a sort reasonably to be anticipated ; if not of this sort, and they took occasion of his act to work an independent in- jury which he could not probably have foreseen, he is not answerable. In addition to the explanations and illustrations given in a preceding chapter,^ something will be useful here. Thus,— § 529. Things in Street — If one negligently leaves a barrel of fish brine open in a public street, it is a natural and prob- able thing that some passer-by will pour it out. Then, this 1 Ante, § 523. Co. v. Shacklet, 119 lU. 232 ; Tate ». ^ " It is no excuse for the negligence Missouri, &e. Ry. 64 Mo. 149. of the defendant that another peraon's * Ante, § 39, 518. negligence contributed to the injury." * Allison v. Chicago, &c. Eld. 42 Church, C. J. in Robinson v. New York Iowa, 274 ; LonisviUe, &c. Ry. v. Jones, Cent. &c. Rid. 66 N. Y. 11, 13 ; Craw- 108 Ind. 551. See also Whitehead ». fordsville v. Smith, 79 Ind. 308 ; Slight Mathaway, 85 Ind. 85. V. Gutzlafr, 35 Wis. 675 ; Union Ry. &c. « Ante, § 35, 36, 40-48. 236 CHAP. XXVII.] PERSONS AND FORCES COMBINING. § 530 having been done, if a cow lawfully ^ in the street drinks the brine and is injured, its owner may recover the damages of the person who put it there.^ And anything calculated to frighten horses, thus set in a highway, will bring the corpo- ration answerable for its condition under liability to a trav- eller harmed by his horses taking fright and running ; such being the natural and probable consequence of the neglect.^ On this principle, where one negligently left some boards in the middle of the street, and a second person having a load of barrels passed over them, and the boards both rattled and caused a rattling of the barrels, which together frightened the well-broken and carefully driven horses of a third person fol- lowing, so that they started aside and thi-ew him from his wagon and injured him, he was permitted to maintain an action against the first person. " K," said Appleton, C. J. " the boards had not been wrongfully left in the street they would not have rattled or caused the rattling of the barrels ; and, had there been no rattling of boards and barrels, the plaintiff's horse would not have been fi-ightened nor the plain- tiff injured." * On the other hand, — § 530. Continued. — It is not the natural and probable con- sequence of a properly constructed coal-hole in a sidewalk that a stranger will come along and wrongfully break the stone supporting its cover. Then, if the stone is so broken without the knowledge of the owner, the latter is not respon- sible to a pedestrian injured by the turning of the cover.^ So, if a railroad puts its bridge over a street at the proper height, it is not the natural and probable consequence that the bor- ough will raise the street-bed ; and, if it does, the former is not liable to a teamster struck by the bridge.® Likewise, in 1 McCarthy v. Portland, 67 Maine, 25 Wis. 288 ; Macomber v. Nichols, 34 167. Mich. 212 ; Spaulding v. Winslow, 74 2 Henry v. Dennis, 98 Ind. 452. Maine, 528 ; post, § 976 Another case similar is Pastene v. Ad- * Lake v. Milllken, 62 Maine, 240. ams, 49 Cal. 87. See Stone v. Hubbardston, 100 Mass, s Bennett ». FiBeld, 18 E. I. 139. 49 ; Clark v. Lebanon, 63 Maine, 393 ; And compare with Dimock v. SufSeld, Merrill v. Claremont, 58 N. H. 468. 30 Conn. 129 ; Kingsbury v. Dedham, * Wolf ». Kilpatrick, 101 N. Y. 146. 13 Allen, 186 ; Bartlett v. Hooksett, ' Gray «. Uanbury, 54 Conn. 574. 48 N. H. 18 ; Foshay v. Glen Haven, 237 § 532 SORTS OP PERSONS AND COMBININGS. [BOOK IV. the running of a railroad, it is not to be anticipated that, at a particular place, an outside person will misplace a switch just as a train is approaching ; and, if this is done, and an acci- dent follows, the road cannot be compelled to compensate a person injured.^ If, in these several cases, some duty of fore- sight had been neglected, the legal result would have been the opposite one, as stated in the last section. Now, — § 531. Act 'Wrongful or not. — If it is objected that in the cases last mentioned the act complained of was not in its nature wrongful, the reply is that, as to the consequence now in contemplation, it would make no difference if it was. This is illustrated in preceding chapters.^ But the instances in the books are numberless. Thus, the body of a riding- wagon, left on a highway, was laid up edgewise against some bushes outside of the travelled part. This was a sort of ob- struction which, in circumstances quite supposable, would render the town liable for a resulting accident; but, as its natural and probable consequence was not to frighten a prop- erly trained and well-driven horse, the court would not com- pel the town to pay damages when, in fact, a horse was frightened by the wagon-body and did mischief.* For a rail- road to bring to a place on its line, contrary to a statute, cat- tle having a contagious disease, is a wrong leading to a civil liability ; * but, if some outside person then transports them to another locality where they infect other cattle, the road cannot be made to pay this damage.^ We have a like illus- tration in — § 532. Slander and label. — If one utters a slander, its repe- tition by the hearer is not quite contrary to the common drift of wickedness ; but this would be an act of wrong-doing, and in the absence of proof the law presumes that men do right, not wrong.' The consequence whereof is, that the utterer of 1 Eeeley v. Erie Ey. 47 How. Pr. the limits of the doctrine, ante, § 176- 256. 184. 2 Ante, § 41-43, 47, 453, 455, com- » Nichols v. Athens, 66 Maine, 402. pared with § 456, 457. And see the ex- * Ante, § 132. positions of Cockhum, C. J. in Clark o. ^ Surface v. Hannibal, &c. Rid. 63 Chambers, 3 Q. B. D. 327, 336-338. Mo. 452. Consult ante, § 42, 43. See further, as bringing to view some of ° 1 Bishop Crim. Proced. § 1103. 238 CHAP. XXVII.] PERSONS AND FORCES COMBINING. § 535 a slander cannot be made to pay damages for its miauthor- ized repetition ; ^ and it is the same of a libel, which a second publisher copies.* § 533. Subsequent Partaker or Actor. — One whose subse- quent doing increases the evil of another's previous act, or adds a new injury, is responsible.* Thus, — § 534. Repeatmg Slander. — A person who repeats a slan- der is answerable for it,* even though he does not intend to or does not convey the idea that it is true,^ or though he dis- claims belief in its truth,® or otherwise publishes it as a rumor,^ or announces its source.^ § 535. 'Wrong-doers as between Themselves. — Since, with few exceptions, a person who has suffered from what several have done in combination may collect his damages from any one of them,^ and since practically he will fall upon the one from whom he thinks he can get them most easily, it becomes specially important to consider the relations of the wrong- doers to one another. We have seen i" that, in cases of con- scious wrong, one who has paid the whole cannot compel contribution from the others, because the courts sit to enforce the laws, and not to assist men in attempts to break them ; but where the injury was unmeant there may be contribution, for there the liability came from the law's adjustment of rights between parties, not from a purposed law-breaking.^ There is another class of cases, wherein, as between the par- ties, the sole responsibility is on one, while another is simply 1 Hastings v. Stetson, 126 Mass. « McDonald v. Woodruff, 2 DQ. 244. 329 ; Shnrtleff v. Parker, 130 Mass. See Bradley v. Cramer, 66 Wis. 297. 293 ; Parkins v. Seott, 1 H. & C. 158, » Ante, § 518-522. 8 Jur. N. s. 593. » Ante, § 56. > Clifford V. Cochrane, 10 Bradw. u ^j gee, besides the cases cited at 570. Consult Zier c. HofSin, 33 Minn, the preceding place, Pearson c. Skelton, 66 ; Emmens r. PotUe, 16 Q.B. D. 854. 1 M. & W. 504 ; Thweatt v. Jones. 1 * Ante, § 64. Band. 328 ; Dupay v. Johnson, 1 Bibb, * Evans v. Smith, 5 T. B. Monr. 562 ; WUford v. Grant, Kirby, 114 ; 363 ; Stowell r. Beagle, 79 111. 525. Peck v. Ellis, 2 Johns. Ch. 131 ; Attor- s Kenney v. McLaughlin, 5 Gray, 3. ney-General v. Wilson, Craig & P. 1 ; s Bianstetter v. Dorrongh, 81 Ind. Acheson r. Miller, 2 Ohio State, 203 ; 527. Moore v. Appleton, 26 Ala. 633 ; Hunt 7 Fowler «. Chichester, 26 Ohio v. Lane, 9 Ind. 248 ; Bailey v. Bussing, Stete, 9. 28 Conn. 455. 239 § 536 SORTS OP PERSONS AND C0MBINING3, [bOOE IV. liable with him to the person injured; then, if there is no obstruction from the principle just stated, when the latter has been made to pay he can recover the whole of the former. A familiar example of this is where one has obstructed a street, then a third person has been injured and has obtained dam- ages of the municipal corporation holden to keep it in repair ; here the corporation was the mere victim, and after having paid the damages it may recover them of the original wrong- doer. Added to which, if it was sued, and it notified the party responsible, with a request to defend, it may have its costs and counsel fees.^ And this is the rule in other cases within the same principle.^ But if the one seeking indemnity partook consciously in the wrong, his suit will fail.^ § 536. The Doctrine of this Chapter restated. In civil jurisprudence, one's responsibility for his wrong is not always commensurate with his deserts. If fifty persons combine to harm a man, each deserves to be made to pay the whole damage ; for his wickedness is the same as though he had done it alone. And very properly this is the rule in criminal jurisprudence. Even in civil, the injured person may obtain his whole compensation out of any one of them. The reason why he cannot get it severally of all is that he has in himself no just claim to have a loss repaired but once. When, after the suffering party has received his damages, the wrong-doers attempt an adjustment between' themselves, the courts will not take jurisdiction to enforce a claim of one who was a conscious partaker in the wrong. But in the other class of cases, wherein the liability grew out of the relation in which the law placed the party, and he did not have the purpose to break the law, an equitable adjustment will be compelled. I Westfield w. Mayo, 122 Mass. 100 ; bins, 2 Black, 418, 422, 425 ; Durant Portland v. Atlantic, &c. Rid. 66 Maine, v. Palmer, 5 Dutcher, 544. 485 ; Minneapolis Mill Co. v. Wheeler, 2 gray v. Boston Gas-light Co. 114 31 Minn. 121 ; Western, &c. Rid. ». Mass. 149 ; Simpson e. Mercer, 144 Atlanta, 74 Ga. 774 ; Chicago v. Rob- Mass. 413. s Churchill ». Holt, 131 Mass. 67. 240 CHAP. XXVIILJ mjSBAKD AND WIPE, COVERTUBE. § 537 CHAPTER XXVIII. § 537. Complications of Subject. — In oiir unwritten law, as administered by the courts of common law and of equity, the civil rights and obligations which grow out of matrimony are, though not difficult to understand, a good deal complicated. When the subject is examined through the digests and the text-books of the digest sort, it seems a tangle made up of arbitrary rule and inharmonious judicial rulings. But if we approach this tangle rightly, beginning where we ought, and drawing out the juridical thread through its source of reason, — not the reason of the philanthropic theorist, but the reason of the law, — we shall find all plain, and easy to be remem- bered. The greater complications relate to property rights and contracts, as to which the two systems of equity and law mingle, but they are not within the scope of this volume. The rules which pertain to our present subject have been, with the others, explained by the author in another work.i And it 1 Bishop on Married Women. At and it would liave been an eminent suc- the time of the present writing, this cess in the bookseller's sense if I could work is substantially out of print. The have made a beginning in obtaining first volume was exhausted some years readers for it. There were within my ago, yet a few copies of the second re- power no means for doing this. There main, simply because intending pur- never had been on this subject any work chasers cannot find copies of the first to of a higher order than a digest, or, there- go with them. I think the book sold fore, adapted in any considerable degree somewhat faster than the average of to dispel its apparent difliculties. My books on the snbject. But, not wish- book was written to dispel them, and it ing to put out a new edition of it unless did so. But so wide were the compH- edited by myself, I have thus far chosen cations of the snbject, involving prin- to spend my time on works which, I ciples special to this department of could foresee, would have more readers, jurisprudence, also blendings of law and This one was and is greatly needed ; equity, and in various ways constituting 16 241 §539 SORTS OP PERSONS AND COMBININCfS. [BQOK IV. would be contrary to his method of authorship to repeat here what he has sufficiently illustrated elsewhere. This chapter was necessary to the completion of the subject of the volume, but it will suffice to add to this introduction a few pointings of the law, without accompanying references to the author- ities. Thus, — § 538. "One Flesh" — Male "Head." — The common law of husband and wife rests on the foundation principle that " they twain shall be one flesh," ^ united in a way to render the male part the " head." Hence, — § 539. When Wife Uable for Torts, when not — When the female part of this one flesh — namely, the wife — is in the presence of this male head her husband, her volitions are looked upon as, prima facie, movements impelled by the head, for which she is not responsible, but he is ; though it may be affirmatively shown against her that a particular act was vol- a whole whereof the parts could not be made compi'ehensible except to those who understood the other parts and the combined whole, that it was quite beyond any power of langaage to let the daylight into the subject in a way fully satisfying the minds of lawyers, how- ever able, who merely consulted it for particular questions as they arose, with- out giving it a preliminary reading. The work was written to be read. In the nature of the case it could not be and it was not, when not read, very much more helpful than a mere digest, or the books which had gone before. The profession had never looked upon the subject as one susceptible of being made luminous, or even as proper for any thorough instruction to students. I do not think there ever was a practi- tioner, a judge, or a law student who even so much as entertained the sug- gestion of reading this work of mine. Simply it was used as a digest is, there- fore with little mora profit. And the thought that it or any other book on the subject can be made mora useful has probably never entered a half dozen minds in the entire country. I will 242 illustrate this by saying, that a very . eminent lawyer of my acquaintance who, I know, reads and appreciates my works generally, instead of reading this, wrote me, — " You may have removed the dif- ficulties of the subject, but I do not believe it." If I could have begun to untangle things in the righi place, — namely, in the professional mind of the country, — I should have made a great success of this Married Women book. And those gentlemen who are anxious to see a new edition, some of whom have written me regarding it, shall be grati- fied if, .during my life and ability to work, a way can be devised for getting hold of the thread in what I have thus shown to be the right place. Perhaps, in the absence of such device, I may yet prepare a new edition ; hoping that, in some way which I cannot now foresee, there may be found for it readers, not merely persons who will make it a sub- stitute for a digest. The usefulness of a digest I do not dispute ; but the mere supplying of that sort of want is not within my particular line of labor. ^ Matt. ziz. S ; Mark z. 8. CHAP. XXVm.] HUSBAND AND WIPE, COVERTURE. § 542 untarily hers, and then she will be liable for it. For what she does in his absence she is liable, even though it was pre- viously instigated by him ; the law accepting the obvious fact that, the marital head not being present, she is now acting from her own. § 540. When Husband liable. — Since, in legal contempla- tion, the husband has his wife in subjection when he is with her, he is answerable for the torts she commits in his pres- ence ; and commonly, as just seen, she is excused because presumptively impelled by his marital power. He is also liar ble for her torts comtaitted in his absence, if he instigated them ; otherwise he is not. Now, — § 541. How the Suit — The law requires the husband duly to protect his wife. At the common law, under the rules whereof rather than those of equity questions of tort are nearly all litigated, the husband must always be a party with his wife in her suits, whether she is plaintiff or defendant. When she has become alone liable for a tort, the injured party must sue her, and must also join him as co-defendant. When she is not liable by reason of her act being deemed in law the husband's, she must not be made a party defendant, but the suit must be against him alone. Therefore it is com- mon to say in the books, that a husband is answerable for all his wife's torts. In truth, he is so only as just stated. So that, if she commits a tort in his absence and without his in- stigation, then he dies, his estate is not holden, but the widow must respond personally, the same as though she had been discovert when the act was done. § 542. Torts to "Wife. — One who inflicts a civil wrong upon the wife is answerable to her, not the husband ; yet, as just seen, the husband, without whose protection she cannot act, must join her as co-plaintiff in the suit. Still, if he has suffered pecuniarily, — as, if she has been wounded, cast- ing upon him expense in her cure, or loss of her services, — this damage is his, and he may and should sue for it alone. Nor, though he dies, can she maintain a suit in her own name for this damage to him, but she can sue for the damage to herself. 243 § 543 SORTS OP PEBSONS AND COMBININGS. [BOOK IT. Modem Statutes, — chan^g libe common-la'w relations of husband and wife as to property, have not greatly interfered with the foregoing rules. In some degree they have. It is not deemed best to pursue the subject further in the present work. § 543. The Doctrine of this Chapter restated. The law of husband and wife is a complication of the rules of equity, of those of the common-law courts, and of principles growing out of peculiarities in the relationship. Special study, supplementing a general knowledge of the legal system, is ■indispensable to its proper understanding. The non-contract part of this law is simpler than the contract part, because there is in it a less mixture of equity with the common law. Some leading rules are stated in the foregoing sections, but their repetition is unnecessary. Every law student and every practitioner should give a special study to this subject, not that it is particularly difficult, but it has principles not found elsewhere in the law, and interminglings of doctrine compre- hensible only on viewing the parts in connection with the whole. 244 CHAP. XXIX.J PARENT AND CHILD, INFANCY. | 545 CHAPTEE XXIX. § 544. Introdnction. 545-548. Kestraints and Discipline of Infancy. 549-552. Parent's liability for Torts of Child. 653-559. His Eights as to Torts to Child. 560-569. Liabilities of Infants for their Torts. 670, 571. Eights of Infants as to Torts suffered. 672-590. STegligence and Contributory Negligence. 591. Doctrine of Chapter restated. § 544. How Chapter divided. — We shall consider, I. The Restraints and Discipline of Infancy ; II. The Liability of the Parent for the Torts of the Child ; III. The Eights of the Parent as to Torts inflicted on the Child ; IV. The Liabilities of Infants for their Torts ; V. The Rights of Infants as to Torts suffered by them ; VI. Negligence to Infants, their Contributory Negligence, and that of Persons having a Care of them. I. 2%e Restraint* and Discipline of Infancy. § 545. Under what Subjection. — For the good of the in- fant,^ the common law holds that, with exceptions not now to be considered, every male or female child not twenty-one years old ^ must be more or leas, according to his age, special needs, and the particular case, conti-olled by an adult will.^ Ordinarily the authority is in the father ; ^ if he dies, it passes, 1 1 Bishop Ciim. Law, § 880 et ■ And see 2 Bishop Mar. & Dir. seq. § 525-559. ' Bishop Con. § 893,894; Common- * 1 Bl. Com. 452, 453 ; Gates v. wealth V. Morris, I Fhilad. 381. Eenfroe, 7 La. An. 569 ; People v. Cooper, 8 How. Pr. 288. 245 § 547 SORTS OP PERSONS AND COMBININGS. [BOOK IV, yet not in all respects fully, to the mother ; ^ and, within still narrower limits, it may be exercised by any person who has received the child into membership in his family, and who thus or otherwise stands to it in loco parentis.^ As to which, the purposes of this chapter do not require the drawing of more exact lines. Now, — § 546. Correction — Restraint. — The controlling person, whether the father,^ the mother, or the one in loco parentis,* may inflict on the minor, in proper circumstances, moderate and reasonable chastisement, or exercise over the person other restraint, within the principles explained by the author in another work.^ On the other hand, — § 547. Protection. — The person in whose care is the child should extend to it due protection.^ For example, one having at service in his family a girl of eleven years, without knowl- edge and experience, should not suffer her to go into the ex- treme cold insufficiently clad ; and, if he does, and she is injured by being frozen, he must answer to her in damages.'' Here the wrong consists of a mere neglect to impart knowl- edge, and exercise needed constraint. Where it goes further, into active misleading, the case is worse. Thus, a girl of ten- der years at service experiencing her first menstruation, was told by her employers that it was a dangerous disease, leading to insanity and death, and the only known remedy was severe and unremitting labor. She was thereby enticed into working beyond her strength, and injured. " By the strongest prin- ciples of moi'ality and good faith," said the court, "they 1 Osbom V. Allen, 2 Dntcher, 388 ; * 1 Bishop Crim. Law, § 880-884. Ohio, &c. Rid. 0. Tindall, 13 Ind. 366 ; * Something of this sort, not quite Commonwealth v. Murray, 4 Binn. 487. definahle, is due to an uninsti-ucted em- 2 Snowden v. The State, 12 Texas ployee, who is a minor, beyond what Ap. 105 ; Whitaker v. Warren, 60 would he required if he were of mature N. H. 20. age. Atlanta Cotton Fac. v. Speer, 69 'Commonwealth v. Coffey, 121 Ga. 137 ; Eocku. Indian Orchard Mills, Mass. 66 ; Pierce v. Millay, 62 111. 142 Mass. 522, 528 ; Hill v. Gust, 55 133. Ind. 45 ; O'Connor v. Adams, 120 Mass. * Snowden «. The State, 12 Texas 427, 431 ; Louisville, &o. By. v. Fraw- Ap. 105 ; Bleke v. Grove, 1 Keb. 661. ley, 110 Ind. 18 ; Jones v. Florence Otherwise where the minor is a mere Mining Co. 66 Wis. 268 ; Hickey ». servant to one not in loco parentis. Taaffe, 105 N. Y. 26. Tinkle v. Dunivant, 16 Lea, 503. ' Nelson v. Johansen, 18 Neb. 180. 246 CHAP. XXIX.] PARENT AND CHILD, INFANCY. § 552 should have given her reasonable care and honest counsel." And so her father's action Jor damages was sustained.' § 548. Coercion. — Infancy, as to coercion by the superior, is different from coverture. It is never a justification for an infant sued for a tort,^ or indicted for a crime,* that he did it by command of one in authority over him. II. The Liability of the Parent for the Torts of the Child. § 549. Not liiable. — The father, simply as parent, is not answerable for any* tort committed by his minor child.* Thus,— § 550. Examples. — If his daughter sets his dog on a neigh- bor's hogs and kills them,^ or if his son negligently shoots a neighbor's horse,* or if the son commits any other trespass,^ the father cannot be made to pay the damages. But, — § 551. Child as Servant. — Though the relation of parent and child does not alone render the latter the servant of the former, the child often or commonly is such ; whereupon the facts may be shown by proofs,* or inferred from the circum- stances.^ In which case, the parent will be to the same ex- tent responsible for the child's acts as for those of any other servant. Thus, — § 552. Instances. — Where a boy, following the usage of the family, is driving them to church, if he recklessly runs into another's team the father is answerable.'" Even where a minor son was employed by the father to clear a parcel of land, then did it so negligently that a neighbor's property was destroyed by fire, the father was required to pay the dam- ages." And if a parent permits his children on his own premises to shout and fire pistols, and thereby they frighten 1 Larson v. Berquist, 34 Kan. 334, » Tiffl; v. Tifft, 4 Denio, 175. opinion by Johnston, J. ^ Baker v. Morris, 33 Kan. 580. 2 Smith ■». Kron, 96 N. C. 392. ' McCalla v. Wood, 1 Penning. 86. 8 1 Bishop Grim. Law, § 355, 367, ' Swartz v. Hazlett, 8 Cal. 118. 884 a. "Ante. §373. * Bishop Con. § 900 ; Edwards v. '» Schaefer «. Osterhrink, 67 Wis. Crume, 13 Kan. 348 ; Wilson -o. Gar- 495. rard, 59 111. 51 ; Teagarden v. Mc- " Teagarden v. McLaughlin, 86 Ind. Langhlin, 86 Ind. 476, 478. 476. 247 § 554 SORTS OP PERSONS AND COMBININGS. [BOO£ IT. the horses o£ a passer-by in the highway, he must make com- pensation for the injury .1 But if the son, though a servant, does a wrongful thing outside of the line of his service, the father will not be responsible for it, under circumstances ia which an ordinary master would not be.^ There may be cases wherein opinions will differ ; as, where a father wilfully and negligently suffered his boy of eleven years to have a loaded pistol, he was held by the majority of a divided court not liable to a person injured thereby.^ Evidently he would not be so from the mere parental relationship ; but, by a doctrine which we have already seen,* the entrusting of loaded fire^ arms to so yoimg a person is an act of carelessness comnumly deemed to draw with it responsibility. rn. The Rights of the Parent as to Torts inflicted on the Child. § 553. The Principle. — One who injures another by a wrongful act must make good the damages. So that, when- ever a parent has suffered a legal harm from anything tor- tiously done to his child, he may have compensation from the doer.^ Hence, — § 554. Defined. — One who commits a tort on a child must answer to the father,^ the widowed mother,^ or any other per- son in loco parentis,^ for any expense thereby cast upon him, and any loss of the child's services to which he is entitled. The case is similar to that of enticement, already explained,® though the doctrines may not be identical at every point. We shall see, in the fifth sub-title, that the child may main- tain also his separate suit, but we are here inquiring after the parental claim. To illustrate, — 1 Hoverson v. Noker, 60 Wis. 511. « Hussey v. Ryan, 64 Md. 426 ; Fort s Way 1). Powers, 57 Vt. 135. Wayne, &c. By. v. Beyerle, 110 IncL » Hagerty t». Powers, 66 Cal. 368. 100. Compare with Poland v. Eaihart, 70 ' Ohio, &c Eld. ». Tindall, 13 Ind. Iowa, 285. 366 ; Natchez, &c. Bid. . Heim, 7 Watts, 62. 9 Bush, 455. * Wilt V. Vickei-s, 8 Watts, 227 ; i» Durkee v. Central Pac. Eld. 56 Covington Street Ey. v. Packer, 9 Bush, Cal. 388. 455 ; Kennard v. Burton, 25 Maine, 39. " Hall v. Hollander, 4 B. & C. 660. * Eogersv. Smith, 17 Ind. 323; Black "I should think it quite questionable V. CarroUton Eld. 10 La. An. 33 ; Ar- whether that case can be considered as nold V. Uorton, 25 Conn. 92 ; Bell ». law here." Cowen, J. in Hartfield v. Central Eld. 73 Ga. 520. Eoper, 21 Wend. 615, 617. Compare "> Black t». CarroUton Eld. 10 La. Jones ». Brown, 1 Esp. 217, Peake, 283. An. 38 ; Donnell v. Sandford, 11 La. And see Matthews v. Missouri Pac. Ey. An 645 ; Sherman v. Johnson, 58 Vt. 26 Mo. Ap. 75. 249 § 562 SORTS OP PERSONS AND COMBININGS. [BOOK IV. the English, and certainly by the legal reasons controlling the question, if the injury is such as to create any disqualification for service before the child reaches the age of majority, this loss should be taken into the account, and it will sustain the action.^ And if there is no loss of service, the parent may still have his suit for the other expenses incurred.^ § 659. Emancipation. — The person suing, in order to ob- tain compensation for the loss of services, must have some legal interest in them.^ Still, in the case of the father,* the emancipation of the child, or particularly the permitting of him to receive his own wages,^ does not necessarily take away all right to his future services. So that, if the child is in- jured, the father may have damages for the loss of support.® IV. Tlie Liahilities of Infants for their Torts. § 560. Distinctions. — A babe at the breast and a man of mature age are very differently related to society. And the responsibilities of infants vary with their years. So reason teaches ; and so the law holds, but in a somewhat technical way.^ Thus, — § 561. In Criminal Law, — one under seven years of age is conclusively incapacitated to commit any crime, however pre- cocious he may be in fact. One between seven and fourteen is prima facie incapable, but capacity in fact may be shown against him. One over fourteen stands on the same footing as an adult.* § 562. For Contract — the infant has a partial or imper- fect capability in law ; depending on rules partly technical, yet not with distinctions as to the ages of seven and fourteen.' 1 Ante, § 374 ; Bay Shore Eld. v. « Stile-s v. Granville, 6 Casli. 458 ; Harris, 67 Ala. 6 ; Hussey v. ByaTi, 64 Donegan v. Davis, 66 Ala. 362. Md. 426 ; Texas, &c. Ey. w. Morin, 66 « St. Joseph, &c. Eld. v. Wheeler, Texas, ] 33 ; Natchez, &c. Eld. v. Cook, 35 Kan. 185 ; Soldanels v. Missoari 63 Missis. 38 ; Drew v. Sixth Avenue Pac. Eld. 23 Mo. Ap. 516. See Natchez, Eld. 26 N. Y. 49. &c. Eld. v. Cook, 63 Missis. 38. 2 Dennis v. Clark, 2 Cush. 347 ; ' Bishop Con. § 895. Sykes v. Lawlor, 49 Cal. 236. 8 1 Bishop Crim. Law, § 863. * Mercer v. Jackson, 54 lU. 397. » Bishop Con. § 892-946. * Ante, § 380. 250 CHAP. XXIX.] PARENT AND CHILD, INFANCY. § 666 § 563. In Torts — the rules follow neither those of crime nor of contract. They do not distinguish ages, as in the criminal law, nor yet do they adopt the technicalities estab- lished in contract. The doctrine may be defined thus, — § 564. Defined. — Though, like an adult, an infant may be excused for his wrongful act by any lack of mental capacity,^ and though, unlike an adult, an immaturity of age may be sach as to exempt him from the prima facie presumption of capacity, still mere infancy, or the mere fact of not having attained any standard number of years, does not disqualify the infant for committing* a tort.* For example, — § 565. Instances. — A minor is liable, like a person of age, for his neglects,^ for his trespasses,* for his assaults,^ com- monly for his frauds,* for his unlawful conversions of goods,^ for tortiously taking money,* for the wrong of bastardy,* and generally for whatever may be the subject of an action ex delicto}'^ The limitation of this doctrine is that, — § 566. Tortious Breach of Contract. — If the particular wrong is both a tort and breach of contract, — not a violation also of a duty which the law had superinduced upon and above the contract,^^ — then, if infancy would be a defence to an action on the contract, it will be equally such should the in- jured party elect to sue in tort.^ For example, if an infant » Ante, § 495-516. « Elwell v. Martin, 32 Vt. 217. « Bishop Con. § 897, 901, 902. » Chandler «. Commonwealth, 4 Met. » Way r. Powers, 57 Vt 135; Baker Ky. 66. o. Morris, 33 Kan. 580. w School Distiict ». Bragdon, 3 Fost ♦ Tifft V. Tiflt, 4 Denio, 175. N. H. 507 ; OUver v. MeClellan, 21 Ala. * Bullock V. Babcock, 3 Wend. 391 ; 675 ; Guidiry v. Davis, 6 La. An. 90 ; Sikes r. Johnson, 16 Mass. 389. Christian v. Welch, 7 La. An. 533 ; 6 Bishop Con. § 902 ; Wallace v. Scott r. Watsou, 46 Maine, 362 ; Word Moras, 5 Hill, N. Y. 391 (commented ». Vance, 1 Nott & McC. 197 ; Hanks on in Campbell v. Perkins, 4 Selden, t>. Deal, 3 McCord, 257 ; Humphrey v. 430, 440); Eckstein v. Frank, 1 Daly, Douglass, 10 Vt. 71 ; West v. Moore, 14 334 ; Matthews i'. Rice, 31 N. Y. 457 ; Vt. 447 ; Huchting v. Engel, 17 Wis. Rice V. Boyer, 108 Ind. 472; Catts ». 230. Phalen, 2 How. U. S. 376, 382. " Ante, § 72-77. ' Mills t>. Graham, 1 New Bep. 140 ; ^ Bishop Con. § 901 ; Jennings v. Baxter v. Bush, 29 Vt 465 ; Vasse v. Eundall, 8 T. E. 335 ; Bumard c. Smith, 6 Cranch, 226 ; Lewis v. Little- Haggis, 14 C. B. N. s. 45, 9 Jur. N. s. field, 15 Maine, 233 ; Walker v. Davis, 1325 ; Boot v. Stevenson, 24 Ind. 115. 1 Gray, 506 ; Fitts v. Hall, 9 N. H. 441. 251 § 569 SORTS OP PEBSONS AND COMBININGS. [BOOK IT. supercargo disobeys instructions, this, though a wrong, extends no further than a mere breach of his contract of employment ; so, as his infancy would protect him in a suit on the contract, it will do the same in an action of tort.^ The obvious reason for which is, that, since a release of the breach of contract would be a release of the tort, both being the same thing, the same effect must be given to any other matter of defence. The adjudications are not quite harmonious as to what facts will bring a case within this doctrine, and what will render the tort an independent wrong, for which infancy will be no defence. The true distinction is believed to be that, where the violation of contract and the tortious act are identical, in- fancy is a defence, but it is not such where the infant does anything in excess of such mere violation, and in breach of a duty which the law had created, or superinduced upon the contract. Thus, — § 567. No Defence. — In England, an infant hired a mare for a ride along the road, being- expressly told that she was not fit for leaping. But while in his possession, she was put to a fencCj she fell on a stake, and was so injured that she died. There was, therefore, a violation of a duty which the law cast upon him, it was more than a mere breach of con- tract. " I agree," said Byles, J. " that, where there is an action of contract against an infant, you cannot change it into one ex delicto. Here, however, a horse is hired for one pur- pose and it is used for another." So infancy was held to be no bar to a suit for the damage.^ And if a minor hires a horse to drive to one place and drives it to another, he is in like manner answerable.^ § 568. Some other iizplanationB — appear in the author's " Contracts," but it is needless to repeat them.* § 569. Already, — in a preceding chapter, we have seen how far a defective understanding or want of evil intent excuses the otherwise wrongful act.^ "We have no such cases under 1 Vasse V. Smithy 6 Cranch, 226. v. WUey, 28 Vt. 355 ; Penrose «. Cur- 2 Bm-nard v. Haggis, 14 C. B. N. s. ren, 3 Eawle, 351. 45, 9 Jur. N. s. 1325. * Bishop Con. § 901-903. 3 Freeman ». Boland, 14 E. I. 39 ; * Ante, § 495-516. Homer v. Thwing, 3 Pick. 492 ; Towne 252 CHAP. XXIX.] PARENT AND CHILD, INFANCY. § 572 the head of infancy as will render a continuation of the eluci- dations desirable here. V. The Mights of Infants as to Torts suffered hy them. § 570. G^eneral. — Though the parent can maintain an ac- tion to make good the loss he has sustained from a tort to the child, as already explained,^ the child also, however immature in years, can sue for his loss and sufferings,^ and neither action will be any impediment to the other. § 571. Recover whaft. — The infant, in such an action, can- not recover what the parent has expended in his cure ; ^ or, if he has not been emancipated,* for his diminished capacity to earn money during minority ; ^ these being losses to the par- ent, not to him. But he may have the proper damages for his own losses and sufferings.^ VI. Negligence to Infants, their Contributory Negligence, and that of Persons having a Care of them. § 572. Complicationa and Differences — Hc^ here. — Con- nected with this sub-title there are more than the average complications of legal doctrine and differences of opinion upon them. We shaU trace the subject so far as to obtain a view of its principles, of the reasonings applicable, and of the practical methods of applying the principles, together with the needful illustrative instances. But more of detail would not be within the plan of the present work. Nor, if it were, would it be particularly helpful in practice ; since the new cases will seldom be repetitions of the old, and since the prac- titioner is better served than inexperienced young lawyers 1 Ante, § 553-559. » Collins v. Lefevre, 1 Fost. & F. 486. * Ante, § 557 ; Bogera v. Smith, 17 * Ante, § 559. Ind. 323 ; Hartfield v. Roper, 21 Wend. ' Texas, Sea. By. v. Morin, 66 Texas, 615, 617 ; Callahan v. Bean, 9 Allen, 225. 401; Wright v. Maiden, &c. Eld. 4 « Ante, § 554, 557 : Mackey o. Vicks- Allen, 283 ; Lynch v. Nurdin, 1 Q. B. burg, 64 Missis. 777 j Hopkins v. Vir- 29; Smith o. Peabody, 106 Mass.. 262 ; gin, 11 Bush, 677; Austin v. Great Mackey v. Yicksbuig, 64 Missis. 777. Western By. Law Bep. 2 Q. 6. 442. 253 § 573 SORTS OF PEESONS AND COMBININGS. [BOOK lY. commonly suppose, when simply furnished with the principles and their practical methods, and compelled to work out for himself their applications to the cases he may have in hand. § 673. Principles. — The books contain many cases, more or less conflicting with one another, and more or less in de- parture from the just line of decision, wherein it is obvious that the principles which the established law had provided to govern them were overlooked — not denied, but simply not thought of — by the judges deciding them and delivering the opinions. It will, therefore, help us throughout the elucida- tions of this sub-title to call here to mind some of those prin- ciples, as explained in preceding chapters ; namely, — 1. A person who has done any part of a wrong working harm to another, or even contributed by his will to it, is re- sponsible to him in damages for the entire harin, however many other individuals, forces, and things may have co- operated in bringing about the mischief.^ 2. The reason why every one of the co-operating persons is not required to pay each the entire damage in full is simply because the person suffering has no merit entitling him to demand more than a single compensation. If the proceeding against the wrong-doers were criminal, the State being plain- tiff, each defendant would be compelled thus to make good the entire damage.^ In like manner, — 3. Where the plaintiff's negligence or other wrong has con- tributed to the injury for which he seeks compensation of the defendant, — the defendant not having done the wrong in full, but the two having done it by mutual contribution, — the principle above stated would require the defendant to pay, and to pay the whole. And the reason why the law does not compel it, in pursuance of such principle, is, that the courts, being established to enforce the law, not to aid plaintiffs in breaking, it, will not take jurisdiction of a claim into which the applicant's own law-breaking has entered, constituting thereof any part.^ But, — 1 Ante, § 518, 522, 527, and the » Ante, § 54-64, 459, 460, and see places there referred to. subsequent sections. " Ante, § 519, 620. 254 CHAP. XXIX.] PARENT AND CHILD, INFANCY. § 576 4. For the wrong of the plaintiff to have this effect, it must be of the criminal or consciously evil quality ; ^ so that, apply- ing this principle to our present elucidations, the contributory negligence of a plaintiff too young or othervrise too feeble in mind to exercise carefulness is no answer to a suit for the defendant's negligence.^ Now, — § 574. Order of Subject. — Bearing in mind these princi- ples, and looking for such others as may appear applicable, we shall consider this subject as to. First, Inevitable acci- dents ; Secondly, The negligence of the parent or person in care of the child, the suit being by the parent ; Thirdly, The same when the child sues ; Fourthly, The child's contributory negligence ; Fifthly, The negligence of the person from whom the injury proceeds. § 575. First. Inevitable Accidents : — No NegUgence. — When, though there is injury, there is no negligence or other wrong in the party from whom the injury proceeds, there can be no contributory negligence in the other party. For if there is negligence in the latter, it is not con- tributory, there being nothing to which it can contribute. The case is one of overwhelming necessity, or it is a common accident of life, or it is otherwise within the same principle ; and the sufferer must bear his misfortune without compensa- tion, as explained in a preceding chapter.* For example, — § 576. Illostrations. — If a bridge company builds properly, its bridge having a good footway and a good carriage-way, and a child too young to exercise carefulness walks, not on either, but on a gaspipe placed some distance above the floor, there is neither negligence in the one party nor contributory negligence in the other, and if the child is injured there is no remedy.* So if a child goes uninvited and unenticed upon manufacturing premises, and falls into a pool of hot water, the injury to it is without redress.^ Again, if a child in the street, after the forward wheel of a horse-car has passed, puts 1 Ante, § 56, 535 ; Bishop Con. § » Ante, § 155-185. 481-488. * Oil City, &c. Bridge v. Jackson, 4 * Lynch v. Nurdin, 1 Q. B. 29 ; Am. Pa. 321. Powell V. Dereney, 3 Cush. 300, 305 ; * Schmidt o. Kansas City Dist. Co. Evansich v. Gulf, &o. Ry. 57 Texas, 126. 90 Mo. 284. 255 § 578 SORTS OF PERSONS AND COMBININGS. [BOOK IV. itself before the hind wheelj which the driver's other duties do not permit him to look to, and is injured, no suit can be maintained,! In these, and other like cases,^ whether there was negligence on the side of the injured child ^ or not, there being none on the other side, the accident belongs to the in- evitable class for which no action can be maintained.* § 577. Secondly. The Negligence of the Parent or Person in Care of the Child, the Suit being hy the Parent : — Parent's Own. — When the parent himself brings the suit,^ he will not be permitted to recover if his own negligence in the care of the child contributed to the injury,® And, — § 678. Other Person in Care. — If the parent has intrusted the child to the care of another person, the ordinary principles of the law of agency would render him responsible for such person's neglects. Still, applying now the reasoning of the law, and assuming him to be thus responsible, if he was not negligent in selecting the person, such person's negligence, however gross, would not be the sort of contributory negli- gence which would bar the parent's suit; because,, as to the parent, it was not " of the criminal or consciously evil qual- ity," within a rule stated in a previous section.^ But the intrusting of the child to incompetent or otherwise improper custody would be such an evil negligence as, if it contributed to the injury, would bar the parent's suit. This view of the question appears to accord with the better adjudications, though the form of the reasoning may not be quite so in all of them ; or, if we look at the cases simply, and do not ex- 1 Bulger V. Albany Ey. 42 N. Y. Callahan v. Bean, 9 Allen, 401 ; Kreig 459. ' V. Wells, 1 E. D. Smith, 74 ; The Bur- 2 Miles V. Atlantic, &o. Rid. 4 guhdia, 29 Fed. Rep. 464 ; Hussey ». Hughes, 172 ; Chicago, &o. Rid. v. Ryan, 64 Md. 426. Lammert, 12 Bradw'."408; Farris v. * Ante, § 553-559. Cass Ave. &c. By. 80 Mo. 325 ; Chicago, ° Baltimore, &c. Rid. v. The State, &c. Eld. V. Becker, 76 111. 25 ; Mont- 30 Md. 47 ; Evansville, &o. Eld. v. fort V. Schmidt, 36 La. An. 750. Wolf, 59 Ind. 89 ; St. Louis, &c. By. * Chester ». Porter, 47 111. 66 ; Rudd w. Freeman, 36 Ark. 41 ; Nagel-K. Mis- V. Richmond, &c. Rid. 80 Va. 546 ; souri Pao. Ey. 75 Mo. 653 ; Williams Chicago, &c. Ey. v. Smith, 46 Mich. v. Texas, &c. Ry. 60 Texas, 205. 504 ; Murray v. Richmond, &c. Rid, ' Ante, § 673, proposition 4. And 93 N. C. 92. see post, § 631-634. * Hartaeld v. Roper, 21 Wend. 615 ; 256 CHAP. XXIX.] PAEENT AND CHILD, INFANCY. § 579 amine further into the law as a system of reasoning, some doubts or confusion of doctrine may appear. And there are judicial opinions which seem to hold the custodian's negli- gence absolutely contributory .^ § 579. Instances, — illustrative of what is set down in the last two sections, might be multiplied indefinitely. There is a difference between permitting a child to do a negligent thing, and its doing the thing voluntarily at a moment when the parent's eye is not upon it. To permit one under three years of age to wander unattended nine hundred feet from home near a railroad, followed by injury, has been well held to be contributory negligence in the parent.^ A fortiori it is such to suffer one under five to be alone on a railroad track, where cars are hourly passing.^ Yet the parent, especially if a poor laborer,* cannot be constantly watching the child, so that its escape to a place of danger is not necessarily the parent's con- tributory negligence.* In the absence of unusual danger, it is not negligence to allow an ordinarily intelligent and active child of between ten and eleven years to be in the street.^ In these and various other like cases,'^ distinctly and widely on one side or the other of the line distinguishing negligence from adequate carefulness, it may be competent for the court to say, as of law, what is the effect of the few conceded facts.* But — 1 Walters v. Chicago, &c. Kid. 41 '^ Evansville, &c. Eld. ■». "Wolf, 59 Iowa, 71 ; Schmidt ». Milwaukee, &c. Ind. 89. And see St. Louis, &c. By. ■». Ey. 23 Wis. 186 ; O'Flaherty v. Union Freeman, 36 Ark. 41. Ey. 45 Mo. 70 ; Waite v. North East- ' Jeffersonville, &c. Eld. ». Bowen, em Ey. Ellis, B. & E. 719, 726, 727, 40 Ind. 545 ; Cauley v. Pittsburgh, &c. commented on in The Bei-nina, 12 Ey. 14 Horris, Pa. 398. P. D. 58 ; Stock v. Wood, 136 Mass. * Chicago, &c. Eld. ■». Gregory, 58 353 ; Ohio, &c. Ey. v. Stratton, 78 111. 111. 226. 88, 91 ; Ihl V. Forty-second St. &c. « Chicago o. Hesing, 83 111. 204 ; Eld. 47 N. Y. 317 ; Collins ii. South Frick v. St. Louis, &c. Ey. 75 Mo. 542. Boston Rid. 142 Mass. 301 ; Seed ». « Kavr v. Parks, 40 Cal. 188. Minneapolis St. Ey. 34 Minn. 557 ; ' Chicago, &c. Eld., v. Becker, 84 Stafford v. Euhens, 115 111. 196 ; Hoppe 111. 483 ; Bronson v. Southbury, 37 V. Chicago, &c. Ey. 61 Wis. 357 ; Chi- Conn. 199 ; Eeed ». Minneapolis St. cago, &c. Rid. V. Becker, 84 111. 483 ; Ey. 34 Minn. 557. St. Louis, &c. Ry. w. Freeman, 36 Ark. 8 Ante, § 442 ; Stock v. Wood, 136 41 ; Nagel V. Missouri Pac. Ey. 75 Mo. Mass. 353 j Wright v. Maiden, &c. Eld. 653. 4 Allen, 283. 17 257 §581 SORTS OP PERSONS AND COMBININGS. [BOOK IV. § 580. Question for Jury. — The larger number of these infancy cases present complicated or uncertain facts, or evi- dence requiring to be weighed ; for which, or for other rear sons, they are within the rules ^ rendering their submission to the jury obligatory on the court.^ Thus, it has been held to be a question for the jury whether a father is negligent in permitting a boy of twelve to drive a team in the night.^ And, not in conflict with the case stated in the last section, the particular circumstances may require a submission to the jury of the question whether or not a parent is negligent in suffering his child to be in the street,* or to go upon a railroad track.* And the case of a child's, escape from the parent may be of the like sort.^ § 581. Thirdly. The Negligence of the Parent or Person in Care of the Child, the Suit being hy the Child : — Imputed Negligence. — There is a doctrine prevailing in a part of our States, — possibly also in England,? but the question is 1 Ante, § 442, 469. ^ Philadelphia, kc. Eld. ■». Long, 25 Smith, Pa. 257 ; Nagel v. Missouri Pac. Ry. 75 Mo. 653 ; Fink v. Missouri Furnace, 10 Mo. Ap. 61 ; Stafford v. Ruhens, 115 III. 196 ; Collins v. South Boston Rid. 142 Mass. 301. s Parish v. Eden, 62 Wis. 272. * Schierhold v. North Beach, &c. Eld. 40 Cal. 447. ^ Payne c. Humeston, &o. Ry. 70 Iowa, 584; llil v. Forty-second St. &c. Eld. 47 N. Y. 317. * Pittsburg, fco. Ey. v. Pearson, 22 Smith, Pa. 169 ; Gibbons o. Williams, 135 Mass. 333 ; McGeary v. Eastern Rid. 135 Mass. 363 ; Hoppeii. Chicago, &c. Ry. 61 Wis. 357. ' Waite V. North Eastern Ry. Ellis, B. & E. 719. In this case, a woman had bought tickets for herself and a five years old boy her grandchild, who was in her eare, and by the joint negli- gence of herself and the defendant road the boy was injured. He sued the road ; and it was held by the Court of Queen's Bench and affirmed in the Ex- chequer Chamber that his grandmoth- 258 er's contributory negligence barred his claim. The judges did not quite agree upon the ground of the decision. A leading view was that, as the contract of carriage was made with the grand- mother, and the boy was in her care, the carrier's undertaking should be con- strued as conditioned on the grand- mother's carefulness. Concerning which view, see ante, § 64 and note. One learned judge said : " There really is no difference between the case of a person of tender years under the care of another and a valuable chattel committed to the care of an individual, or even not committed to such care." p. 733. As to which reasoning, there is nothing in the established law by which to test it ; for the law does not recognize the right of a "valuable chattel" to come into court with a suit in its own name. If the owner of it sues, the case may have some analogy to the parent's suing, al- ready explained in the text. Other judges spoke of the "identification" of the boy with his grandmother. In the Massachusetts case of Wright v. Mai- den, &o. Eld. 4 Allen, 283, 286, Hoar, CHAP. XXIX. j §582 there not free from doubt, — to the effect thatj where a young child is in the care of an older person, particularly the parent, the negligence of this person shall be imputed to him, as his contributory negligence, in his suit ^ to recover compensation for an injury inflicted by a third person.^ The one in whose care he is, it was said in an early case on the subject, " is keeper and agent for this purpose ; and, in respect to third persons, his act must be deemed that of the infant, his neglect the infant's neglect," * — reasoning which, we have just had occasion to see, is not sound in law.* On the other hand, — § 582. How in Reason. — Looking into the reasoning of the J. expounded the English doctrine and authorities thus: "In such a case it has heen held in England that the plaintiff, although bound to show that the negligence of the defendants was the sole cause of the injury, and that his own negligence did not in any par- ticular contribute to it, is still not re- quired to prove any higher degree of care on his own part than could reasonably be expected from such a person. The leading case is Lynch v. Nurdin, 1 Q. B. 29 ; and, although the case was ques- tioned in Lygo v. Newbold, 9 Exch. 302, it has generally been followed as an authority. Where the right of the infant to sue is derived from a contract made on his behalf by an adult having charge of him, a different rule has been adopted in the recent case of Waite v. North Eastern By." Said Moncure, P. in Norfolk, &o. Eld. v. Ormsby, 27 Grat. 455, 476, "We concur in the principle of the case of Lynch v, Nur- din, and others of that class ; which decide that the neglect of parents and guardians is not imputable to infant children and wards in such eases ; and we do not concur in the principle of the case of Hartfield v. Eoper, 21 Wend. 615, and others of that class, which decide the contrary." 1 Ante, § 570, 571. 2 Hartfield v. Roper, 21 Wend. 615 ; Wright V. Maiden, &c. Rid. supra j Messenger v. Deonie, 137 Mass. 197 ; Morrison v. Erie Ry. 56 N. Y. 302 ; Leslie v. Lewiston, 62 Maine, 468 ; Fitzgerald v. St. Paul, &o. Ey. 29 Minn.' 336. In the last case, among others referred to on this side of the question were Mangam v. Brooklyn Rid. 38 N. Y. 455 ; Brown v. European, &c. Ry. 58 Maine, 384 ; Lafayette, &c. Eld. V. Huffman, 28 Ind. 287 ; Toledo, &c. Ey. V. Grable, 88 111. 441 ; Meeks ». Southern Pac. Rid. 52 Cal. 602. ' Hartfield v. Eoper, supra, at p. 619. In another case, the reasoning is expressed thus : " She was uhder the care of her father, who had the custody of her person, and was responsible for her safety. It was his duty to watch over her, guard her from danger, and provide for her welfare, and it was hers to submit to his government and con- trol. She was entitled to the benefit of his superintendence and protection, and was consequently subject to any disad- vantages resulting from the exercise of that parental authority which it was both his right and duty to exert." HoUj' v. Boston Gas-light Co. 8 Gray, 123, 132. The result of which reasoiling is; that, for a girl to obey the • law, and sub- mit to her father's control, doing what every minor ought, is that reprehensi- ble contributory negligence which will require a court to refuse her suit for the redress of a wrong ! Ante, § 573. * Ante, § 578. 259 § 583 SORTS OF PERSONS AND COMBININGS. [BOOK IV. law,^ we discover that it does not sustain this doctrine. The doctrine is a new one, brought forward long after tlie system of the common law, with its many principles, had become consolidated. And, in this system, unlike some former sys- tems wherein the child was treated substantially as the father's chattel having few or no rights separately its own, the minor, from the first drawing of the infantile breath, is invested with all those rights of an adult which can give him anything, and protected simply by such disabilities as can pro- tect, yet by none which are capable of working him harm. Now, this new doctrine of imputed negligence, whereby the minor loses his suit, not only where he is negligent himself, but where his father, grandmother, or mother's maid is negli- gent, is as flatly in conflict with the established system of the common law as anything possible to be suggested. The law never took away a child's property because his father was poor or shiftless or a scoundrel, or because anybody who could be made to respond to a suit for damages was a negli- gent custodian of it. But, by the new doctrine, after a child has suffered damages, which, confessedly, are as much his own as an estate conferred upon him by gift, and which he is entitled to obtain out of any one of several defendants who may have contributed to them, he cannot have them if his father, grandmother, or mother's maid happens to be the one making a contribution. In these and other respects, it is submitted, the established principles stated in a preced- ing section are conclusive of the proposition that the doctrine now in contemplation does not belong to the common law.^ And, — § 683. Better Authorities. — Though the erroneous doctrine is upheld by courts as respectable as any among us, the con- trary and sounder view is sustained by courts not less re- spectable, as well as by the law's established reasons. To enter upon a count of the States on the respective sides of this question would be to resort to the lowest, kind of argu- mentation ever found in a law book ; yet, even from this sort of reasoning, it is believed, the doctrine which refuses 1 Ante, § 88, 573. » Ante, § 673. 260 CHAP. XXIX.] PARENT AND CHILD, INFANCY. § 585 to impute a parent's sin of negligence to the child would not suffer.^ § 584. Fourthly. The Child's Contributory Negligence : ^ — Parent's Suit -^ If a parent, himself being free from negli- gence, brings a suit for expenses and loss of service resulting from an injury to the child,^ will the child's contributory neg- ligence, supposing him to be of an age and intelligence ren- dering him capable of it, be available in defence ? • A part of the reasoning of the last few sections would seem to be appli- cable to this case, leading to a negative answer to the ques- tion. Recurring to the doctrines stated further back,^ since the party inflicting the injury has in himself no equity to set up the defence of contributory negligence, and since the plain- tiff in the case now supposed was guilty of no conscious or criminal wrong, the misfortune of having a negligent child should not debar him from pursuing his legal claim for dam- ages.* ^till it is sometimes taken for granted, without much consideration, that a father in these circumstances cannot recover for the injury ; but probably the question is open for further judicial discussion.^ This matter oftener arises in the — § 685. ChUd's Suit — When the child sues, having arrived I Among the cases on this side of sides some of the above cases, he cites the question are Erie City Passenger to this proposition Daley v. Norwich, Ry. V. Schuster, 3 Am. Pa. 412, &c. Rid. 26 Conn. 591 ; North Penn- 416, 417 ; Bellefontaine, &c. Rid. v. sylvania Rid. v. Mahoney, 7 "Smith, Pa. Snyder, 18 Ohio State, 399 ; aeve- 187 ; Whirley v. Whiteman, 1 Head, land, &c. Rid. «. Hanson, 30 Ohio 610,620. " But," he adds, " when Lynch v. Nurdin, 1 Q. B. 29. 11 Chicago, &c. Rid. o. Welsh, 118 111. 572 ; Evansich v. Gulf, &c. Ey. 57 Texas, 126 ; Meibus v. Dodge, 38 Wis. 300. See Cassida v. Oregon Ry. &c. Co. 14 Oregon, 551. A boy of eight has been held guilty of contributory negligence. Messenger v. Dennie, 141 Mass. 335. ^ Ante, § 442, 469, 580. 1' Thurber v. Harlem Bridge, &c. Eld. supra ; Ryder v. New York, 50 N. Y. Super. 220 ; Moebus v. Hermann, 38 Hnn, 370 ; McMahon v. Northern Cent. Ey. 39 Md. 438; Kunz v. Troy, 104 N. Y. 344 ; Lane o. Atlantic Works, 111 Mass. 136 ; Jones v. Utica, &c. Rid. 36 Hnn, 115 : O'Connor ». Boston, &c. Rid. 135 Mass. 352 ; Barry v. New York Cent. &c. Kid. 92 N. Y. 289 ; Kline v. Central Pac. Rid. 37 Cal. 400, 404 ; Costellov. Syracuse, &c. Rid. 65 Barb. 92 ; Wyatt v. Citizens Ry. 55 Mo. 485 ; Norton c. Ittner, 56 Mo. 351 ; Dahl V. Milwaukee City By. 65 Wis. 371. CHAP. XXIX.] PARENT AND CHILD, INFANCY. § 588 whereof is, if contributory to the injuiy he complains of, the barring contributory negligence.^ Still, — § 587. Capable Infants. — After an age and under circum- stances not definable by rule, the court can see that the in- fant is capable of contributory negligence, and it will not suffer the jury to ignore this fact.^ Thus, as once judicially observed, " a boy eleven years of age knows, as well as an adult does, what a railroad is, and the use to which it is put, and the consequence to a person who should be struck by a passing train, and knows that he should not stop to play or lounge amid a network of tracks." On this the jury is re- quired to act, yet not to presume also that such a boy has '• the judgment of an adult." ^ § 588. Fifthly. The Negligence of the Person from whom the Injury ProeeeAs : — No Negligence. — The simple fact that an infant, however young, has been injured by another person does not cast lia- bility on the latter.* It must further appear that the latter was guilty of negligence or some other wrong in violation of a duty to the infant,* and that the injury proceeded there- from."* Otherwise, whether the complaining infant or parent was negligent or not, his suit must faU.^ Now, — 1 Railroad c. Gladmon, 15 WaL 401, HL 79 ; Solomon v. Central Park, &c 408 ; Railroad v. Stent, 17 WaL 657 ; Bid. 1 Sweeny, 298 ; Martin v. Cahill, Chicago, &c Rid. p. Murray, 71 111. 39 Hnn, 445 ; McPhillips o. New York, 601 ; Government St Rid. v. Hanlon, &c. Rid. 12 Daly, 365 : Honor v. Al- S3 Ala. 70 ; Baltimore, &c. Ky. v. Mc- brighton, 12 Norris, Pa. 475 ; Beckham SonneU, 43 Md. 534 ; Moynihau v. v. Hillier, 18 Vroom, 12 ; Brown v. Whidden, 143 Mass. 287 ; Phfladelphia, Enropean, &a By. 58 Maine, 384 ; &c. By. o. Hassaid, 25 Smith, Pa. 367 ; Moore %>. PeDnsylvania Bid. 3 Oat. Pa. Elkins V. Boston, &c. Bid. 115 Mass. 301. 190, 200; St Lonis, &c. By. v. Vali- ' Masser o. Chicago, &c. By. 68 Iowa, rios, 56 Ind. 511 ; Rockford, &c. Bid. 602, 605, opinion by Adams, C. J. And s. Delaney, 82 111. 198 ; McMillan v. see Dowling o. Allen, 88 Mo. 293. Burlington, &c. Rid. 46 Iowa, 231 ; * Ante, § 575. Glover v. Gray, 9 Bradw. 329 ; Plnm- ^ Nolan v. New York, &c. Bid. 53 ley o. Birge, 124 Mass. 57 ; Snow Sadler v. Henlock, 4 Ellis & B. De Vein v. Michigan Lumber Co. 64 271 § 602 SORTS OP PERSONS AND COMBININGS. [BOOK IV. for seduction,^ — one who has the mere right to the services may claim as master ; but commonly — as, where it is sought to charge a father with the torts of his child '^ — the relation exists only if there is an actual service or authorization. Moreover, — § 600. Relationship by Estoppel. — For the purpose of charging the master with a wrong committed by the servant, it is not necessary that the latter should be a servant in fact, he may be such only by estoppel. Thus, if one tells another to whom he is under a duty of fair dealing, that a third per- son named is his servant, and the other acts on the repre- sentation and receives an injury from this third person,^ the first is responsible as though the relationship existed in fact.* Nor need the representation be in words ; as, if the owner of a building, for use in the erection whereof the builder has taken bricts by trespass from a third person, pays for them and neglects to prevent a repetition of the trespass, he is liable also for the builder's further trespass of the same sort.^ § 601. Exceeding Authority. — On this principle of estoppel, the master is under various circumstances responsible for what his servant does in excess of his authority or proper functions. But the particulars will be better given under our third sub-title. II. The Servant and Contractor distinguished. § 602. Contractor ■whether Servant -^ Consequences. — Since, to constitute the relation of master and servant, the volitions of the latter must be presumptively or in fact controlled by the former, a contractor, who simply undertakes to bring Wis. 616 ; Foreyth v. Hooper, 11 Allen, 169 ; Eobinson v. AVebb, 11 Bush, 419 ; Woodward i". Washburn. 3 Denio, 464. 369 ; Lipe v. Elsenlerd, 32 K Y. 229 ; i Ante, § 384 ; Clark v. Fitch, 2 Quarman v. Burnett, 6 M. & W. 499 ; Wend. 459. Eapson v. Cubitt, 9 M. & W. 710 ; 2 Ante, § 549-551. Jones V. Liverpool, 14 Q. B. D. 890 ; 8 Bishop Con. § 284. Metz ». Buffalo, &c. Eld. 68 N. Y. 61, * Growcock «. Hall, 82 Ind. 202. 66 ; Edwards v. Jones, 12 Daly, 415 ; ' Dawson v. Powell, 9 Bush, 663. Preston v. Knight, 120 Mass. 5 ; Mc- And see Rich v. Crandall, 142 Mass. CuUough V. Shoneman, 9 Out. Pa. 117 ; Bishop D. Williamson, 2 Fairf. 495. 272 CHAP. XXXI.] MASTER AND SEEVANT. § 604 about a result after bis own methods, is not a servant.^ But one is such who, though he is to have a stipulated price for a thing, executes it under the direction and superintendence of the employer.2 So that, in the former case, the employer is not liable to third persons injured through the negligence of the contractor ; in the latter, he is.^ To illustrate, — § 603. Instances. — One who has a public carman transport goods for him is not the carman's master, therefore is not liable for his torts in the service.* A school district con- tracted with a person to drill a well ; by his negligently leav- ing his tools unguarded a child was injured, yet the school district was held not liable for the damage.^ If a railroad company lets out the building of its track to a contractor, it is not responsible for accidents resulting from the sort of ma- chinery used ; ® or, if the contractor is to employ the road's rolling stock, it is not answerable for the negligence of the persons running it.'' On the other hand, where one agreed to take down another's building under the latter's direction and subject to his approval, the former was held liable to a third person for injuries suffered from the negligent doing of the work.8 Still,— § 604. Liability from Thing done. — Though one procures a thing to be done through an independent contractor, if the thing itself or the agreed method of doing it works injury to a third person, the former may be compelled to pay ; ^ not, on 1 Fink V. Missouri Furnace, 82 66 N. Y. 181 ; Wray v. Evans, 30 Mo. 276 ; Carter ■». Berlin MUls, 58 Smith, Pa. 102 ; Slater v. Mersereau, N. H. 52 ; Edmundson b. Pittsburgh, 64 N. Y. 138 ; Reed v. Allegheny City, &c. Eld. 1 Am. Pa. 316 ; The Wm. F. 29 Smith, Pa. 800 ; Fuller v. Citizens Babcock, 31 Fed. Eep. 418 ; Peachey Nat. Bank, 15 Fed. Eep. 875. V. Eowland, 13 C. B. 182 ; Bennett v. * McMullen v. Hoyt, 2 Daly, 271. Truebody, 66 Cal. 509 ; King v. New * Wood v. Independent School Dist. York Cent. &c. Eld. 66 N. Y. 181. 44 Iowa, 27. 2 Linnehan v. EoUins, 137 Mass. ' Chicago City Ry. v. Hennessy, 16 123 ; New Orleans, &c. Eld. v. Hanning, Bradw. 153. 15 Wal. 649; Andrews w. Boedecker, 17 ' Hitte v. Eepublioan Valley Eld. Bradw. 213. 19 Neb. 620. ' Kepperly v. Eamsden, 83 111. 354 ; 8 Linnehan v. EoUins, 137 Mass. 123. Barrett v. Singer Manuf. Co. 1 Sweeny, ' Ellis v. Sheffield Gas Con. Co. 2 545 ; Kansas, &c. Ey. v, Fitzsimmons, Ellis & B. 767 ; Carman v. Steuben- 18 Kan. 34 ; Hale v. Johnson, 80 111. ville, &c. Rid. 4 Ohio State, 399, 418 ; 185 ; King v. New York Cent. &c. Eld, Palmer v. Lincoln, 5 Neb. 136 ; Sturges 18 273 § 606 SORTS OP PERSONS AND COMBININGS. [BOOK IV. the ground that the latter is his servant, for he is not, hut because the procurer of a tort is answerable as doer.^ Thus, a railroad bargained with one to clear away a quantity of solid rock, " which," the contract specified, " must be removed by blasting." The work was carefully done, yet a third per- son was injured, and the railroad, having procured it, was held to be answerable for the damages jointly with the con- tracting doer.2 Again, — § 605. Obstructing FubUc 'Way. — If one contracts with an- other to do what results in obstructing a street, whereby a person is injured, it will be no answer to this person's claim for damages from the former, that the thing was done under contract.^ And where a municipal corporation is under the duty to keep the public ways in repair, this duty is just as much broken if their want of repair is caused by the acts of one proceeding under contract as by anything else, and the municipality must answer in damages to a person injured by the neglect.* In these illustrations, the ill condition of the way was a nuisance ; and, — § 606. other iTuisances. — Whatever be the nature of the nuisance, one under a duty to avoid it — as, for example, a nuisance on one's land — is responsible for the injury it does to a third person, though it was erected by a contractor con- formably to the terms of his contract. Here, again, the pro- curer is liable as doer.^ But for mere negligent acts in executing the work the contractor alone is answerable ; for he who caused the work to be done did not thereby either direct or approve such acts. Yet he will be liable if, in violation of his duty of carefulness, he contracted with an incompetent person.® For example, if one to clear his land employs an- V. Theological Education Soc. 130 Mass. 465 ; Wilaon v. Wheeling, 19 W. Va. 414, 415. 323 ; Welsh v. St. Louis, 73 Mo. 71. 1 Ante, § 522, 524. s Ante, § 604 ; Vogel .*. New York, 2 Carman v. Steubmville, &c. Eld. 92 N. Y. 10 ; Sturges ti. Theological supra. Education Soc. 130 Ma.ss. 414 ; Khron ° Darmstaetter v. Moynahan, 27 ii. Brock, 144 Mass. 516. Mich. 188. And see Vogel o. New * Kepperly v. Eamsden, 83 III 354 ; York, 92 N. Y. 10. Eohinson v. Webb, 11 Bush, 464 ; Reed * Butler V. Bangor, 67 Maine, 385 ; v. Allegheny City, 29 Smith, Pa. 300 ; Oircleville v. Neuding, 41 Ohio State, Conners v. Hennessey, 112 Masa. 96 ; 274 CHAP. XXXI.] MASTEB AND SERVANT. § 608 other who is suitable, the latter only, and not the former, must pay the damages to a third person from a fire com- municating, which he negligently sets.^ There are some difficulties and apparent differences of judicial opinion in the application of these rules, but they need not be here further explained.^ § 607. Sub-contractor. — A sub-contractor is but a con- tractor with the first contractor. So that his legal position appears from the foregoing explanations. Thus, where one under contract to make alterations in a building sub-let the putting in of the gas, and through the gasfitter's negligence it exploded and injured another, the former was not required to pay the damages.^ And where persons were permitted to build a sewer in a street, being like contractors though not such in form, and they let out the work to another through whose negligent manner of leaving the sewer at night a third person was injured, they were held not liable to him.* If the injury comes through the negligence of a servant, the test to determine the responsibility is to inquire who was the master. He will be the person to sue.^ III. In what Circumstaneeg the Master is liable to Third Per- sons for the Torts of his Servant. § 608. On what Principle. — In reason and in law, one is under some responsibility, though not always heavy, who sim- ply, puts another in a position to do a wrong. And it is a rule of the law that, as between two innocent persons, the one who has done this shall, if such other inflicts an injury which may be made by the court to fall on either, bear the loss.^ A Lawrence v. Shipman, 39 Conn. 586 ; 649 ; Vanderslioe v. Philadelphia, 7 Out. Chicago V. Robbins, 2 Black, 418. Pa. 102 ; Coughtry v. Globe ■Woollen 1 Ferguson v. Hnbbell, 97 N. Y. 507. Co. 56 N. Y. 124. And see Burbank p. Bethel Steam Mill, » Rapsonu. Cubitt, 9 M. & W. 710. 75 Maine, 373. * Blake v. Ferris, 1 Selden, 48. 2 And see McCafferty v. Spnyten * Milligan v. Wedge, 12 A. & E. Duyvil, &c. Rid. 61 N. Y. 178 ; New 737 ; New Orleans, &c. Rid. ti. Reese, York V. Bailey, 2 Denio, 433 ; Sulz- 61 Missis. 581 ; The Harold, 21 Fed. bacher e. Dickie, 6 Daly, 469 ; New Rep. 428. Orleans, &c. Rid. v. Hanning, 15 Wal. * Bishop Con. § 672, note, 673 ; 275 SORTS OP PERSONS AND COMBININGS. [BOOK IV. person who takes another into his service, or who simply holds out another as his servant,^ or who acts or causes his servant to act in a way implying an authority greater than as between him and the servant exists,^ brings himself within this principle. And he does more ; he comes within the fur- ther principle that he who procures a thing to be done is answerable as doer.* This is so even where the servant is such only by estoppel, or where his doing is in excess of his authority in fact ; for, in such a case, he procured the injured third person to accept the unauthorized thing as authorized. Or, if such injured person had no voice in the transaction, and the wrong was simply thrust upon him, still, it having been done in the business and on behalf of one who had put the doer in a position to accomplish it, and had prompted him to action,* such master, however innocent in fact, should bear the loss rather than the one who had done nothing to bring it upon himself.^ Hence, — § 609. Doctrine defined. — If one's Servant, whether such in fact or only by estoppel, by performing an act which the master has authorized,® or within the scope of his real or ap- parent authority though not otherwise authorized,' or within the duty by law incumbent on one discharging a trust which the master has committed to him,^ injures another in a way Hertell v. Bogert, 9 Paige, 62 ; Kawls Maier v. Randolph, 33 Kan. 340 ; Greg- V. Deshler, 4 Abb. Ap. 12. ory v. Piper, 9 B. & C. 591. 1 Ante, § 600, 601. ' Hawes v. Knowles, Hi Mass. 518 ; 2 St. Joseph, &c. Bid. v. Wheeler, Passenger Kid. v. Young, 21 Ohio State, 35 Kan. 185 ; Hanson v. Mansfield By. 518 ; Smith v. Webster, 23 Mich. 298 ; &c. Co. 38 La. An. 111. Heenrich v. Pullman Palace Car, 20 3 Ante, § 522, 524, 604, 606. Fed. Rep. 100 ; Conner v. Citizens * "The ground is, that he has put Street Ry. 105 Ind. 62 ; Geraty v. it in the servant's power to mismanage Stem, 30 Hun, 426 ; Miller ii. Bur- the carriage, by intrusting him with lington, &c. Rid. 8 Neb. 219 ; Patten it." Erskine, J. in Sleath v. Wilson, 9 v. Eea, 2 C. B. n. s. 606, 3 Jur. n. s. Car. & P. 607. 892 ; Banister v. Pennsylvania Co. 98 6 Another illustrative branch of the Ind. 220 ; McManns v. Crickett, 1 doctrine is, that he who supplies to one East, 106. the means of committing a fraud on a ' Galena, &c. Eld. ». Kae, 18 111. particular person is liable to any other 488 ; Goddard v. Grand Trunk Ry. 57 person on whom the fraud is perpe- Maine, 202 ; Stewart v. Brooklyn, &c. trated. Wilson v. Green, 26 Vt 450. Rid. 90 N. Y. 588 ; Columbus, &c. « Lee V. Sandy Hill, 40 N. Y. 442 ; By. v. Powell. 40 Ind. 87 ; Craker v. Andrews v. Eunyon, 65 Cal. 629 ; Chicago, &c. Ey. 36 Wis. 657. 276 CHAP. XXXI.] MASTER AND SERVANT. § 610 which ■would render the master liable were it done by himself, he is to the same extent responsible to the person injured.^ A few further explanations of the doctrine will be helpful ; thus, — § 610. In Disobedience of Orders. — Where the servant is acting within the scope of his employment, it is no answer to an injured third person's suit against the master that the ser- vant inflicted the injury in disobedience of orders, or other- wise in violation of his duty to the master.^ Thus, where an omnibus driver, in the master's absence, and in wilful disre- gard of instructions, so drove his vehicle as to obstruct and injure a rival omnibus, the master was held liable for the damages.^ And where a servant, in disobedience to orders, left at the end of a day's work the master's truck in the street instead of the yard provided for it, whereby a collision oc- curred in the street resulting in damage, the loss was adjudged to be within the responsibility of the master.* One told his boys to drive out from his lot some trespassing cattle, but not with dogs. The boys employed dogs, and thereby inflicted an injury. The person giving the order was held answerable for this consequence of disobedience.^ Hence, — 1 Poulton V. London, &c. By. Law v. Deveney, 3 Gush. 300 ; Philadelphia, Rep. 2 Q. B. 534 ; Haywood v. Hedrick, &c. Rid. v. Derby, 14 How. U. S. 468, 94 Ind. 340 ; Pittsburgh, &c. Ry. v. 486 ; Sleath v. Wilson, 9 Car. & P. 607 ; Kirk, 102 Ind. 399 ; Lannen v. Albany Southwick v. Estes, 7 Cush. 385 (the Gas-light Co. 44 N. Y. 459 ; Louisville qualification in the last clause of the Gas Co. V. Gutenkuntz, 82 Ky. 432 ; note, " if not done in wilful disregard Roney v. Aldrioh, 44 Hun, 320 ; Fin- of those orders," is not an accurate ex- klestein v. New York Cent. &c. Rid. pression of the law, which holds it 41 Hun, 34 ; Shea v. Sixth Ave. Rid. immaterial whether the disregard is 62 N. Y. 180; MulvehiU v. Bates, 31 wilful or not) ; Duggins v. Wataon, Minn. 364; Snyder v. Hannibal, &c. 16 Ark. 118; Commonwealth ». New Rid. 60 Mo. 413 ; McGlothlin v. Mad- York, &c. Rid. 112 Mass. 412 ; Betta den, 16 Kan. 466 ; Robinson v. Webb, v. De Vitre, Law Rep. 3 Ch. Ap. 441 ; 11 Bush, 464 ; Fort ». Union Pac. Rid. Toledo, &o. Ry. v. Harmon, 47 lU. 2 Dil. 259 ; Gray v. Portland Bank, 3 298. Mass. 364, 385 ; Foster v. Essex Bank, ^ Limpus v. London Gen. Om. Co. 17 Mass. 479, 509 ; Shaw v. Reed, 9 supra. Watts & S. 72 ; Priester v. Augley, 5 < Powell v. Deveney, supra. Rich. 44 ; Russell v. Irby, 13 Ala. 131 ; ' Schmidt «. Adams, 18 Mo. Ap. Armstrong v. Cooley, 5 Oilman, 509. 432. Where, in Haack v. Fearing, 5 2 Post, § 614 ; Limpus v. London Rob. N. Y. 528, the sailing master of Gen. Om. Co. 1 H. & C. 526 ; Powell a yacht fired «. gun in the absence of 277 § 612 SORTS OF PERSONS AND COMBININGS. [BOOK IT. § 611. In Master's Service Unauthorized. — A fortiori, if simply the wrongful thing, done by the servant while acting in the master's service, is within the general scope of his duties, but is not otherwise authorized, the master will be liable. And it is commonly immaterial whether the servant's act was wilful or only negligent.^ For example, one told his servant to go to a place named and kill a beef. He went, found there a bull, and killed it. The bull belonged to a third person, and the master was compelled to pay him the dam- age.2 And it was the same where a servant, cutting timber for his master, overstepped the bounds and cut timber on a neighbor's land.* So, if one writes an article and employs another to translate it, he is responsible for the translation should it be a libel, though it becomes such through the inac- cijracy of the translator.* If the engineer of a locomotive unnecessarily and wantonly sounds the whistle near a high- way, and thereby frightens horses which run and kill another horse, the railroad must pay for the horse killed.^ In the ab- sence of a hotel keeper, his servants while performing their duties assault a guest ; he is liable.® § 612. Not in Line of Employment. — For what a servant does unauthorized, not within the line of his employment, the master is not answerable.^ Or, to express the distinction in the owner and contrary to his com- nen v. Albany Gas-light Co. 44 N Y. mand, inflicting damage by the negli- 459 ; Tuel v. Weston, 47 Vt. 634 ; gent manner of doing it, the owner was Quinn v. Power, 87 N. Y. 535 ; Gray held not to be liable. As to which, v. Pullen, 5 B. & S. 970 ; "Wayland's query. Perhaps, in this sort of case. Case, 3 Salk. 234 ; Levi v. Brooks, 121 there is a difference between a command Mass. 501 ; Whiteley v. Pepper, 2 Q. B. to do and one not to do. See also Ox- D. 276. ford V. Peter, 28 111. 434. " Maier v. Randolph, 33 Kan. 840. 1 Post, § 614 ; Smith v. Webster, 23 ' Smith v. Webster, supra. Mich. 298 ; Wright v. Compton, 53 * Wilson v. Noonan, 27 Wis. 598. Ind. 337 ; Barwick v. English Joint ° Billman v. Indianapolis, &c. Bid. Stock Bank, Law Rep. 2 Ex. 259, 265 ; 76 Ind. 166. Chicago, &o. Eld. v. Dickson, 63 111. « Wade v. Thayer, 40 Cal. 578. See 151 ; McCann v. Tillinghast, 140 Mass. New Jersey Steamboat Co. v. Brockett, 327 ; Galena, &o. Rid. v. Rae, 18 111. 121 U. S. 637 ; Great Western Ry. v. 488 ; Fort v. Union Pac. Rid. 2 Dil. Miller, 19 Mich. 305 ; Kline v. Central 259; Bryant v. Rich, 106 Mass. 180 ; Pac. Rid. 37 Cal. 400. Ochsenbein v. Shapley, 85 N. Y. 214 ; ^ Edwards v. London, &o. Ry. Law Schulte II. HoUiday, 54 Mich. 73 ; Sad- Rep. 5 C. P. 445 ; Foster v. Essex ler V. Henlock, 4 Ellis & B. 570 j Lan- Bank, 17 Mass. 479, 510 ; Wilson v. 278 CHAP. XXXI.] MASTER AND SERVANT. § 613 the words of Lord Kenyon, C. J. masters " are responsible for the acts of their servant in those things that respect his duty under them, though they are not answerable for his misconduct in those things that do not respect his duty to them." 1 Thus, one put his mare in another's livery stable for keeping, and outside of the contract for keeping instructed the latter's servant to exercise her. The servant did it im- moderately, causing her death, yet the master was adjudged not responsible.^ The owners of a foundry gave ashes to an employee who removed them out of working hours. In the place where he depesited them a child, coming in contact with them, was burned ; but the owners were held not liable.^ Workmen boarding themselves while repairing a railroad track took their dinners with them, and at the dinner-hour built within the right of way, to warm their coffee, a fire which communicated to adjoining land and did damage ; the road was held not chargeable.* If one employed to drive a cart takes it out unauthorized on his own business, the master cannot be compelled to make good a damage inflicted by his careless driving.^ § 613. Distinction further Illustrated. — The distinction be- tween the cases wherein the master is liable and wherein he is not, stated in the last two sections, is sometimes nice and difl&cult ; and the applications of it, by the courts, would seem not to be absolutely harmonious. One case, about which there would probably be no disagreement, holds that if a brakeman kicks a person illegally attempting to board a train, the road Peverly, 2 N. H. 548 ; Yates v. Squires, And see Grammer v. Nixon, 1 Stra. 19 Iowa, 26 ; McClenaghan ». Brock, 5 653. Rich. 17 ; Peck v. Michigan Cent. Eld. ^ Adams v. Cost, 62 Md. 264. 57 Mich. 8 ; Little Miami Eld. v. Wet- " Burke v. Shaw, 59 Missis. 443. more, 19 Ohio State, 110 ; Keras v. * Morier ». St. Pau], &c. Ey. 31 Piper, 4 Watts, 222 ; Weldon v. Har- Minn. 351. lem Eld. 5 Bosw. 576 ; McCarthy d. ^ Eayner v. Mitchell, 2 C. P. D. Boston, 135 Mass. 197 ; Jewell v. Grand 357 ; Sheridan v. Charlick, 4 Daly, Trunk Ey. 55 N. H. 84 ; Aldrich v. 338 ; Eahn b. Singer Manuf. Co. 26 Boston, &c. Rid. 100 Mass. 81 ; South- Fed. Eep. 912 ; Storey v. Ashton, Law em Exp. V. Fitzner, 59 Missis. 581 ; Eep. 4 Q. B. 476. See, for the limit Walton V. New York Cent. Sleep. Car of the doctrine, Powles v. Hider, 6 Ellis Co. 139 Mass. 556. & B. 207 ; Mulyehill v. Bates, 31 Minn. 1 Ellis V. Turner, 8 T. E. 531, 533. 364. 2T9 § 614 SORTS OP PERSONS AND COMBININGS. [BOOK IV. is responsible, but not if the person is not so attempting.^ For to keep intruders off the cars is within the proper func- tions of a railroad servant, so that if he employs improper means the road must answer for it ; but it is wholly outside of those functions to commit assault and battery on persons in the neighborhood of the track.^ Where, therefore, a con- ductor stopped his train, pursued with pistol in hand a boy on foot into his father's house, seized the boy, and carried him off in the cars, this was held to be outside of the conductor's employment, so the road was not chargeable.^ But it is rea- sonably plain that not all judges would assent to this. If the conductor's wrongful conduct had stopped with the assault, the road's non-liability would have been clear ; but it is one of the chief duties of a railroad conductor to determine who shall ride in the cars and who not.* Therefore if the con- ductor puts off one entitled to a passage, or carries one beyond the station at which he has the right to leave, the road, by the every day practice of the courts, is compellable to pay him damage. Why, then, does not the like consequence follow when he wrongfully forces a person into the cars and car- ries him away ? We are thus led to another distinction ; namely, — § 614. Wilful or Careless. — Contrary to what we have seen to be the ordinary doctrine,^ there are cases which appear to hold the master not responsible for the servant's wilful acts of disobedience, to the injury of a third person, where, the thing being within the scope of his employment, he would be for negligent ones.® Pursuant to which distinction it was in 1 MoUoy V. New York Cent. &c. Wood v. Detroit Street Ry. 52 Mich. Rid. 10 Daly, 453. 402, 404, Cooley, C. J. discourses as " Porter v. Chicago, &c.' Ry. 41 follows: "The inference from [certain Iowa, 858. facts in contemplation] might be, that * Gilliam v. South, &c. Alabama the driver purposely, and in the anger Rid. 70 Ala. 268. excited by their altercation, ran his car * Post, § 619. against the plaintiff's wagon ; and, if 5 Ante, § 610 ; Howe v. NeWmaroh, thj action had been brought for the 12 Allen, 49. trespass, it might become necessary to ' Brown v. Purviance, 2 Har. & G. decide whether, under cases like Wright 316 ; Deihl v. Ottenville, 14 Lea, 191 ; v. Wilcox, 19 Wend. 343, the defendant Attaway v. Cartersville, 68 Ga. 740 ; would be responsible. In that case it Corsicana v. White, 57 Texas, 382. In was decided that, where the servant 280 CHAP. XXXI.] MASTER AND SERVANT. §614 one case laid down, that, if the driver of a street car wantonly strikes a boy riding on it, whereby the boy is thrown off, then negligently drives over him, the car-owners must pay damage for the careless driving but not for the blow.^ Perhaps under the common-law practice, the form of the action against the master for the servant's wilful trespass in discharging a duty to him should be case and not trespass.^ But, whether so or not, the principles which render the master liable ^ admit of wilfully drove his master's conveyance over a third person and injured him, the trespass was that of the servant, for which the master was not liable. The case was followed in Eiehmond Turn- pike V. Vanderbilt, 1 Hill, TS. Y. 480, s. c. in error, 2 Comst. 479, where the master of a vessel had pm-posely run the vessel into another ; and in Illinois Cent. Rid. v. Downey, 18 111. 259, where the engineer upon a. railroad had purposely run his engine over live stock. Also in De Camp v. Mississippi, &c. Eld. 12 Iowa, 348, and many other cases. The general principle that the master is not liable for his servant's trespasses is familiar, and was recognized by this Court in Chicago, &c: Ey. v. Bayfield, 37 Mich. 205. And if it were impor- tant to determine whether the injuiy was one purposely inflicted and not one resulting from carelessness, the question would no doubt be one to be submitted to the jury. Rounds v. Delaware, &c. Eld. 64 N. Y. 129." 1 Pittsburg, &c. Ey. v. Donahne, 20 Smith, Pa. 119. 2 McMadus v. Crickett, 1 East, 106, 108. This is the English case com- monly cited by those American courts which hold the master not to be re- sponsible. Perhaps the learned Eng- lish tribunal meant to decide so, but what it really held was that trespass would not lie. The further proposition that case will not lie is inference. And if we assume it to hold that neither is maintainable, it is flatly contrary to the present English doctrine. Having in mind this interpretation, a late English writer well says that Limpns v. London Gen. Om. Co. 1 H. & C, 626, and Sey- mour 17. Greenwood, 7 H. & N. 355, " overrule McManus D. Crickett." Pol- lock's Torts, 80, note. Still I do not ob- serve that MoManus v. Crickett is men- tioned and overruled in terms. Among the judicial observations in Limpus V. London Gen. Om. Co. we have, from Byles, J. ; " It is said that what was done was contrary to the master's instructions ; but that might be said in ninety-nine out of a hundred cases in which actions are brought for reckless driving. It is also said that the act was illegal. So, in almost evei-y action for negligent driving, an illegal act is imputed to the servant." p. 541. And Blackburn, J. ; " It is admitted that a master is responsible for the illegal act of his servant, even if wilful, provided it was within the scope of the servant's employment, and in the execution of the service for which he was engaged." p. 541. Wightman, J. dissented from the conclusion under the particular facts. In 9 Jur. N. s. 333, this case is reported under the name of General Om. Co. ti. Limpus, and Wightman's dissenting opinion is printed as the unanimous opinion of the court. Of course, the report being wrong, the head-note is the reverse of what it should be. But curiously this erro- neous head-note finds its way into Fisher's Digest, a work in many re- spects exceptionally accurate, as the decision in the case, and the Jurist title as the title of the case. ' Ante, § 608. 281 § 616 SORTS OF PERSONS AND COMBININGS, [BOOK IV. no distinction between the servant's negligent and wilful mis- doings, and SO are the present English authorities and most of the American ones ; the doctrine being that, in either case, the master is liable if the act of wrong was within the scope of the servant's duty, otherwise if it was an outside wrong which the servant had temporarily abandoned the service to perform.^ Undoubtedly a servant's mere individual malice is not imputable to the master ; ^ but, where the master has as- sumed responsibility for the servant's acts within defined limits, being what he necessarily does when he employs a servant to exercise a jurisdiction within those limits, it can make no difference to third persons complaining whether the servant's private purposes were of the one sort or of the other.^ Another principle, sometimes helpful, is that, — § 615. Discretion in Servsmt. — If, from the nature of the case or otherwise, the servant has a discretion as to the man- ner of doing a thing, his choice binds the master, making the latter responsible for the method adopted.* There is then, as between master and servant, no departure by the latter from his authority.^ § 616. Ratification, — by the master, of the servant's unau- thorized act may charge him.^ 1 Ante, § 610, and the cases tbere having gained a footing as a mere tech- cited, and subsequent sections ; Terre nical doctrine, it cannot be law so long Haute, &c. Bid v. Graham, 46 Ind. as the law is a system of reason. Still 239 ; Indianapolis, &c. Ry. v. Anthony, it is. not impossible there may be cir- 43 Ind. 183 ; Hawes v. Knowles, 114 cumstances wherein the purpose and 518. And see Aiasmith ». Tem- even the motives of the servant are pie, 11 Bradw. 39. deserving of consideration on the ques- * Wallace v. Finberg, 46 Texas, 85. tion whether or not his act was within ' All sorts of things have been the scope of his employment, loosely said on this question ; such as, * Bayley v. Manchester, &c. By. — " The rule is, that an employer is Law Eep. 7 C. P. 415, 8 C. P. 148 ; not liable for a wilful injury done by Greenwood v. Seymour, 8 Jur. N. 8. an employee, though done while in the 214 ; s. o. nom. Seymour v. Green- course of his employment, unless the wood, 7 H. & N. 356 ; Mulvehill c. employee's purpose was to sei-ve his Bates, 31 Minn. 364. employer by the wilful act." Marion •• Post, § 748. ». Chicago, &c. By. 59 Iowa, 428, 430. « Byne v. Hatcher, 75 Ga. 289 ; Gal- A good deal of seeming authority could veston, &o. By. i>. Donahoe, 56 Texas, be collected for this distinction ; bat, 162 ; Coomes v. Houghton, 102 Mass. being antagonistic to reason, and not 211. 282 CHAP. XXXI.] MASTER AND SERVANT. § 619 rV. The Servants Negligence causing or combining with the Contributory Negligence of an Injured Third Person. § 617. ObBcorities. — The authorities have not made very distinct the doctrine of this sub-title. It is sufficiently plain in reason, but the differing and often complicated facts of cases render it sometimes not easy of application. It is that — § 618. Doctrine defined. — One cannot complain of what another does with his consent or especially at his solicitation.' And it is not otherwise though the consent or solicitation comes through an agent, either in fact authorized, or under such appearance of authorization as will render the principal chai-geable with his conduct.* Hence, if one's servant invites or recommends a third person to do a thing, then if in respect of the thing the servant or his master negligently injures this third person, the master, when sued for the injury, cannot set up in defence such doing as being the contributory negligence of the plaintiff. But if the invitation or recommendation re- lated to a matter outside of the servant's employment, it will have no other effect than would a similar enticement from an indifferent person whose means of information and knowledge were the same. To illustrate, — § 619. Railroad Condnctor's Permission — Engineer's — Brake- man's. — It being a function of a railroad conductor to deter- mine who shall ride in the cars, if, contrary to a rule of the road forbidding passengers to be carried upon freight and construction trains, the conductor of such a train accepts a passenger who is ignorant of the rule and is injured, the road, on being sued for the damage, cannot set up in defence, as contributory negligence, this violation of the rule and its dan- gers.' But an engineer has not the same authority ; so that, if he permits one to ride in violation of a rule of the road, the like consequence does not follow.* Or, if a brakeman, not 1 Ante, § 49-53, 291. 38 La. An. Ill ; St. Joseph, &c Rid. ' Ante, § 600, 601, 608, 609. v. Wheeler, 35 Kan. 185. * Hanson v. Mansfield By. && Co. * Chicago, &c. Rid. «. Casey, 9 Bradw. 632. 283 § 622 SORTS OP PERSONS AND COMBININGS. [BOOK IV. having a conductor's authority, invites one to jump on a train while in motion, this person's contributory negligence in jumping is a good answer by the road if sued for a resulting injury.^ Yet where the person invited was a boy of fifteen, and the jury under a proper instruction had rendered a ver- dict against the road, for a resulting injury, the appellate court suffered it to stand. It was observed that they had the right to weigh all the facts, to consider his youth, special cir- cumstances urging his return home, the short time allowed him for decision and action, and the invitation from an em- ployee of the road, dressed in its uniform, and for whose action it was in a measure responsible.^ Again, — § 620. Unloading Wood. — One drawing wood to a railroad was ordered by its agent to unload it at a narrow platform where his team must necessarily be partly on the track. Standing there, it was struck by a passing car. And a ver- dict in his favor for damages was approved by the court.* § 621. Servant's Invitation to Customer. — A customer was in a trader's store. She was invited by the clerk into a dark part of it, where there was an open trap-door, through which she fell and broke her arm. And, she not being otherwise negligent, the master was adjudged to be Ijable.* V. The Liability of the Servant for his own Torts committed in the Service. § 622. Master's Command. — Servants are under the same duty as their masters to obey the law and abstain' from in- juring others. Therefore the command of a master never justifies the servant in committing a trespass, a fraud, or other tort.^ In such a case, both master and servant are liable, within the principles stated in a preceding chapter.* Hence, — 1 Cotter v. Frankford, &c. Ky. 15 < Freer ». Cameron, 4 Rich. 228. Philad. 255. And see Snyder v. Han- 6 Bishop Con. § 1117, 1118 ; Sanda nibal, &c. PJd. 60 Mo. 413. v. Child, 3 Lev. 351 ; Mires v. Solebay, 2 Western, &o. Eld. v. Wilson, 71 2 Mod. 242 ; Peck v. Cooper, 112 ill. 6a, 22. And see Downey v. Hendrie, 192. 46 Mich. 498. e Ante, § 518-524; Michael v. Ales- ' Foss ». Chicago, &c. By. 33 Minn, tree, 2 Lev. 172 ; Beynolds v. Hanra- 392. ban, 100 Mass. 313 ; Perkins v. Smith, 284 CHAP. XXXI.] MASTER AND SERVANT. § 628 § 623. Doctrine defined. — For whatever torts a servant commits, contrary to what would be his duty if he were act- ing for himself, whether within the line of his service or not, and whether he binds the master or not, he is to the same degree personally responsible as though he were not in ser- vice.^ For example, — § 624. Conversion. — If a servant converts another's goods, though to his master's use, he is personally answerable to the owner.^ But if, with the owner's consent, he simply takes them, then the master himself converts them, the latter only is liable.^ So, — § 625. Fraud. — A servant must answer to an injured third person for a fraud committed in behalf of the master, whether the latter joins him therein or not.* Of course, — § 626. For a Trespass — in the master's service, the ser- vant is liable ; as, where the manager of a coal-mining com- pany by mistake carried the work beyond the company's line into adjoining land, and the company sold the coal, he and it were held to be jointly answerable to the owner.^ Like- wise, — § 627. Negligent Misfeasance. — If a servant does a thing for his master negligently, to the injury of a third person, the servant as well as the master must respond in damage.* Still, — § 628. Passive Neglects. — No person is answerable to an- other for the ill results of his negligence unless he owed to the other some duty." A servant, like his master, is under a duty to all men not to injure them by acts of misfeasance. Say. 40 ; Attorney-General v. Peny, 2 See Lee v. Bayes, 18 C. B. 599 ; s. c. Comyns, 481, 486 ; Wilson v. Stewart, nom. Lee v. Robinson, 2 Jut. n. s. 3 Best & S. 913 ; Hill v. Caverly, 7 1093. N. H. 215. » Silver*. Martin. 59 N. H. 580. J Naish V. East India Co. 2 Comyns, * Bishop Con. § 1118; CuUen v. 462, 469 ; The State t, Walker, 16 Thomson, 4 Macq. Ap. Cas. 424, 9 Jur. Maine, 241. N. s. 85. * Stephens v. Elwall, 4 M. & S. * Blaen Avon Coal Co. v. McCuUoh, 259 ; Cranch v. White, 1 Scott, 314, 1 59 Md. 403 ; Mires v. Solebay, 2 Mod. Bing. N. C. 414 ; Perkins v. Smith, 1 242. Wils. 328 ; Mires v. Solebay, 2 Mod. ^ Haniman ». Stowe, 57 Mo. 93. 242 ; Porter ». Thomas, 23 Ga. 467. ' Ante, § 446. 285 § 629 SORTS OP PERSONS AND COMBININGS. [BOOK IV. Hence his responsibility if he breaks this duty. But the pos- itive duties, the non-discharge whereof creates legal liability, are mostly those which a particular person owes to a particu- lar other person ; as, the duty of a specific man to support his individual wife or child, not of all men to maintain all wives and all children. The master, for further example, is under obligation to the particular man to pay to him his own debt, but it is not incumbent on the servant to pay the master's debts. So that, though the master puts into his servant's hands the money to pay what he owes to a third person, still the servant is under no duty to this person, who, therefore, has no right of action against him should he decline.^ Con- sequently the doctrine has become general, subject doubtless to exceptions, where this reasoning would make them, that the servant is not suable by the third person for a mere neglect to do, as distinguished from a negligent doing, but the master alone is liable.^ Thus, though a sheriff may perform his duties by deputy, if a deputy to whom a matter is committed neglects them, the former only is answerable for the neglect.^ And a servant cannot be sued for not lifting the gate of a dam, when the duty is the master's and not his.* § 629. To the Master — the servant owes duties both pos- itive and negative. And for the breach of any of them the former may compel compensation ; as, for doing work unskil- fully, falsely, or insufficiently ; ^ or, for injuring the master's animals or other property, by a neglect of duty, by the want of such skill as the particular contract of service implies, or by wilful misconduct.® Yet if without fault a servant brings loss to his master, he cannot be required to make it good ; as if, being in the service of a common carrier, he loses a parcel, he can be required to pay for it only if negligence is shown 1 Baron v. Husband, 4 B. & Ad. » Waul v. Hardie, 17 Texas, 553 ; 611 ; Howell i>. Batt, 5 B. & Ad. 504. Noma v. Staps, Hob. 210 b ; Hex 2 Perkins v. Smith, Say. 40, 42 ; v. Kilderby, 1 Sannd. Wms. ed. 311, Lane v. Cotton, 12 Mod. 472, 488. And 312. see ante, § 526 ; Osborne v. Morgan, 137 ' Newton v. Pope, 1 Cow. 109 ; Mass. 1. Hathaway v. Smith, 2 Tyler, 248 ; Zul- » Cameron v. Reynolds, Cowp. 403, kee v. Wing, 20 Wis. 408 ; Gilson v. 406. Collins, 66 lU. 136. * Hill V. Carerly, 7 K. H. 215. 286 CHAP. XXXI.] MASTEE AND SERTANT. § 633 against him.^ And always, if the master's negligence con- tributes to the servant's, the ordinary rule applies, and he can- not maintain his action. It is so, for example, if he provided for the servant defective plans or unsuitable tools.* So, — § 630. Indemnity. — Within a principle already stated,* when the master has been made liable to a third person for the wrongful act of his servant, and has paid the damage, he is entitled to recover it of the servant.* VI. Oroe's own Servant's Contributory Negligence. § 631. Already. — In the chapter on " Parent and Child, Infancy," we considered the principles which should govern this sub-title.^ Now, applying those principles, — § 632. The Rule — in reason is, that, if a master is free from carelessness in selecting and instructing his servants, if he is absent when an injury comes to his property or other interests through the negligence of a third person, and if his own negligence in no degree contributed to it, should then the negligence of his servant contribute, it is to be regarded the same as though the contribution was from a person having no connection with him ; ^ in other words, it will not impair his claim for damages. Still, — § 633. In Authority. — While this rule is the inevitable de- duction from principles settled by adjudication, and while the reasoning of the law leads to it conclusively and leaves no doubt, it would be difficult to find cases wherein it was an- nounced by the judges as the ground of their decision. It seems even to have been laid down that the claim of the per- son suffering is in such circumstances vitiated by the negli- gence of his servant.^ And there is considerable probability that this sort of doctrine has been often tacitly assumed. Hence, — 1 Savage v. Walthew, 11 Mod. 135. ' " Contributory negligence, to de- ' wader V. Stanley, 49 Vt. 105. feat a right of action, must be that of * Ante, § 535. the party injured." Head-note toPaul- * Smith V. Foran, 43 Conn. 244. mier o. Erie Eld. 5 Vroom, 151. * Ante, § 573, 578, 584, and cob- ' Page v. Hodge, 63 N. H. 610. nected and Intermediate sections. 287 § 635 SORTS OP PERSONS AND COMBININGS. [BOOK IV. § 634. Conclusion. — Without repeating the reasoning ou this subject, which is abundantly stated in the sections re- ferred to in the opening section of this sub-title, and in the places and sections therein cited, we may conclude by saying that the books contain no sufficient direct adjudications to justify the overturning of the principles of the common law gOTerning the question, and the deductions of the law's rea- sonings. If the author is asked by a reader seeking practical information, how the court before which he practises will hold this question in future, the reply is that nobody can tell him. The probability is that it will depend upon the skill and accu- racy with which the reasoning on the right side is presented to the tribunal. § 635. The Doctrine of this Chapter restated. A master is one who, by contract or otherwise, stands in a position of command toward another, termed his servant. Every servant has a master and every master a servant. As to third persons, claiming anything of the master, any person is a servant whom he holds out or permits to act as such. A contractor to do a thing is not a servant if he is only to bring about a stipulated result ; but he is if the person employing him retains the right of dictating and controlling the means to the agreed end. What one does by his servant is regarded in law as done by hilnself ; therefore third persons, injured by the acts of the servant, may enforce their claims against the master, or against the servant, or both, at their election. Yet they can have but one compensation.' And if the master pays it, having been himself without fault, the servant is re- quired to indemnify him ; otherwise, if the master commanded the wrongful thing or if in any degree he personally partici- pated therein. The master's liability extends to all wrongs of the servant in the line of the service, whether wilful or negli- gent, but not to the servant's independent torts committed outside of the sphere of his employment. 1 Ante, § 519. 288 CHAP. XXXU J MASTER TO SERVANT, FELLOW SERVANTS. § 637 CHAPTER XXXII. THE master's duties AND LIABIUTIES TO THE SERVANT, FEL- LOW SERVANTS. § 636. Ijitrodiiction. 637-641. Doctriue in Outline. 642-637. Master's Kon-assignable Daties. 658-660. Master's Assignable Duties. 661-669. His Substitutes and Agents. 670-673. Fellow Servants. 674-681. Servant taking Risks, his Contributory Negligence. 682-686. Liabilities of Master. 687. Liabilities of Servants to One Another. 688-690. Statutoiy Modifications of Doctrines. 691. Doctrine of Chapter restated. § 636. How Chapter divided. — We shall Consider, I. The Doctrme in Outlme ; II. The Non-assignable Duties of the Master ; HI. The Master's Assignable Duties ; IV. The Master's Substitutes and Agents ; V. Fellow Servants ; VI. The Servant's Assumptions of Bisks and his Contributory Negligence ; VII. The Liabilities of the Master ; VIII. The Liabilities of Servants to One Another ; IX. Statutory Modi- fications of the Doctrines. I. The Doctrine in Outline. § 637. Right to Live. — The main pillars of the law of this chapter rest on the fundamental principle that Grod, in cre- ating men, gave them by implication the right to live, and that no one can deprive another of this right. One of the consequences of which principle we have seen to be, that, if an individual in conducting those activities which -are a necessary part of life is careful and circumspect, yet uninten- 19 289 § 639 SORTS QP PERSONS AND C0MBININ6S. [BOOK IV, tionally injures another, he is not compellable to pay an in- demnity ,i but the other must bear uncompensated the loss as he does any other accident, and as a return for the advantages of living in society .^ We had in the last chapter almost an exception to this rule in the doctrine of the — § 638. Master's Liability to Third Persons Injured. — For special reasons already explained,^ a master who has selected servants however carefully is, for their negligent and other evil doings in his service, responsible to third persons injured thereby. But those reasons do not apply to the case of a — § 639. Servant Injured. — If a master is careful and cir- cumspect in planning his business, if be exercises a reason- able foresight to avoid injuries to bis servants, if he selects his servants with proper care, if he duly instructs them in their duty and its dangers, if he puts into their hands what he has reasonable cause to deem suitable tools, machinery, and other things to work with, if he assigns to them what rea- sonably seems to be a proper place to labor, — if, in short, he is not remiss in the care and precaution which common pru- dence and the claims of humanity indicate, — then if, through any other person's negligence or wrong, whether a fellow- servant's or third person's, or through any latent defect in the appliances or other things which he has thus carefully pro- vided, one of his servants receives an injury, it is to be ranked among the accidents of life as respects the master's liabil- ity, while yet the servant may have against, others the same remedies which wojjld be his were he not in the service. In other words, the master is responsible to the servant for his carelessness and for his wilful wrongs, if thereby the latter is injured ; but not for what to him is the inevitable.* Such is 1 Ante, § 10, 11. Buckley v. Gould, &c. Co. 8 Saw. 394 ; 2 Ante, § 176-184. Hobbs v. Stauer, 62 Wis. 108 ; Waddell * Ante, § 608. v. Simoson, 2 Am. Pa. 567 ; Northern ♦ The doctrine of this section will be Cent. By. v. Husson, 5 Out. Pa. 1 ; more specifically explained, with the Philadelphia Iron, &c. Co. v. Davis, 1 judicial aathorities which recognize it, Am. Pa. 597 ; Luebke v. Chicago, &c. in the subsequent sub-titles. But the Ey. 63 Wis. 91 ; McQueen v. Central reader will also find fragments of it in Branch Union Pac. Kid. 30 Kan. 689 ; such cases as the following. Bems v. St. Louis, &c. By. •». Wearer, 35 Kan. Gaston Gas Coal Co. 27. W. Va. 285 ; 412 ; Colwnbus); &c. By. ■». Troesch, 290 CHAP. SXXII.] MASTER TO SERVANT, FELLOW SERVANTS. § 641 nearly or quite the universal doctrine of the courts,^ though the reasoning upon it, for which the particular judge delivering the opinion is responsible, is not always precisely so. Much of what is thus stated as conclusion is, by many or most, de- duced from the nature of the contract of hiring.^ To say that the reasoning just given in these sections, rather than the other, is the law's reasoning, is not to cast discredit upon the more common form of the argument ; for the two are not ab- solutely antagonistic ; and in the main, if not entirely, they may well stand together. Still, — § 640. Servant flot by Contract. — While practically most servants, especially those employed in large enterprises, are such by contract, not all are.^ And it is believed that the doctrines just stated apply to non-contract servants the same as to the common ones. But we shall see in subsequent sub- titles that there are doctrines, perhaps not all applicable to non-contract servants, which proceed naturally and necessa- rily from the express or implied — § 641. Contract of Service. — What is implied in any con- tract is as much a part of it as what is expressed.* Therefore largely, as we shall more specifically see in subsequent sub- titles, the mutual duties of master and servant depend upon the interpreted contract of hiring. Thus, if one agrees to provide " good and suitable board and lodging " to a laborer, yet sends him to a high mountain pass to sleep on frozen ground with only damp spruce branches for a bed, whereby the laborer becomes sick and paralyzed, he must answer to him in damages.^ Within the rule that a conti"act contrary 68 111. 545 ; Henry v. Lake Shore, &c. By. 5 Exch. 343 ; HaU v. Jolinson, 8 Ry. 49 Mich. 495 ; Kquegno o. Chi- H. & C. 589, 11 Jur. N. s. 180. eago, &e. Ey. 52 Mich. 40 ; Rodman ^ Compare with post, § 665, 671. V.' Michigan Cent. Eld. 55 Mich. 57 ; * Brown v. Winona, &c. Rid. 27 United States Boiling Stock Co. v. Minn. 162 ; Pittshnrgh, &o. Ky. v. WUder, 116 111. 100 ; Wheeler v. Wa- Ranney, 37 Ohio State, 665, 669 ; son Manuf. Co. 135 Mass. 294 ; Johnson Hutchinson v. York, &c. Ry. 5 Exch. V. Boston Tow-boat Ca 135 Mass. 209 ; 343, 351 ; Chicago, &c Ey. v. Boss, Lopez V. Central Aiiz. Min. Co. 1 Ariz. 112 U. S. 377, 882, 383. 464 ; Brick v. Rochester, &0. Bid. 98 * Ante, § 599-601. N. Y. 211 ; Brown v. Winona, &c. Eld. * Bishop Con. § 239-256. 27 Minn. 162 j Jfason v. West, 78 ^ Clifford ». Denver, &c Eld. 9 Colo. Maine, 253 ; Hutchinson v. York, &c. 338. 291 § 643 SORTS OF PERSONS AND COMBININGS. [BOOK ly. to the policy of the law is void,^ one of the sort now in con- templation may be so.^ But we have not adjudications illus- trating this subject very fully. It is laid down in one case that an express agreement exempting the master from liability to the servant for defective machinery is void,^ but another case seems not to hold the doctrine so.* And we shall by and by see that if, without express terms, one agrees to work for another with machinery which both understand to be defec- tive, this is an effectual waiver of all objection to it. Yet, not in conflict with such doctrine, a blind undertaking of this sort, permitting the master to provide whatever he chose to the imminent risk of the servant, might be well deemed violative of the law's policy, therefore void.^ To trace now the doc- trine more minutely, — II. The Non-assignahle Duties of the Master. § 642. 'Where no 'Waiver. — We shall assume, in here de- scribing these duties, that the servant does not waive his right to object to the master's omission of them. That such a waiver will ordinarily^ bind the servant, when voluntarily made with full knowledge of the situation, we shall see fur- ther on. V § 643. ITon-assignable and Assignable distinguishe^'^-^'It ap- pears upon a consideration of the summary of duties already given,'' that there are those which bind the master personally, so that he cannot relieve himself from liability to the servant for a defective performance by assigning, in advance, the work of performing to a presumably competent third person. On the other hand, it appears also, both from the reasons before 1 Bishop Con. § 470, 474. * Boesner v. Hermann, 10 Bis. 486. * Lake Shore, &c. Ky. v. Spangler, 44 Similar is Western, &c. Eld. v. Bishop, Ohio State, 471. A statute having made 50 Ga. 465. railroad companies liable for injuries to * Galloway v. 'Westeni, ke. Eld. 57 their servants caused by the negligence Ga. 512. of fellow servants, it was held that they ^ And see 2 Thomp. Neg. 1025. cannot escape this liability by a con- ^ See ante, 641. tract with the servant in advance ex- ' Ante, 639. empting them. Kansas Pac. Ry. v. Feaxej, 29 Kan. 169. 292 CHAP. XXXII.] MASTER TO SERVANT, FELLOW SERVANTS. § 645 stated and from the nature of the relation of master and ser- vant, that, when the master has discharged his non-assignable duties, there remain others which he may assign; that is, commit to a carefully chosen servant without being liable to another servant for a default in the performance. The act of employing the servant and setting him at work constitutes in itself such assignment to him of so many of these duties as he undertakes. The former class are for this sub-title. We shall look at them a little in detail ; thus, — § 644. Machinery, Tools, and other Appliances : — Defined. — Though the master does not guarantee to the ser- vant absolute exemption from accidents,^ it is his duty to exer- cise those precautions which the nature and circumstances of the particular case indicate, to render the tools, machinery, and other appliances which he provides, reasonably safe. And a failure to perform this duty, where the servant does not waive it, is, if injury follows, a ground of liability to him.^ Its discharge consists in the precautions ; subsequently disclosed imperfections, not reasonably avoidable, do not place him in def ault.3 Some particulars are — § 645. Degree of Care — Knowledge of Master. — There is believed to be no absolute rule, applicable to all the varying claisses of cases, to determine the degree of care required of the master. It has been said that he fulfils his duty in select- ing machinery when he exercises ordinary care ; * that he is i Johnson v. Bmner, 11 Smith, Pa. Air-line Rid. 95 N. C. 195 ; Gibson v. 58 ; Green, &c. Ky. r. Bresmer, 1 Ont Pacific Rid. 46 Mo. 163 ; Western, &e. Fa. 103. Rid. v. Bishop, 50 6a. 465 ; Houston, s Ellis V. New York, &c Rid. 95 &c. Fy. v. Myers, 55 Texas, 110 ; N. y. 546 ; Abel v. Delaware, &c. Canal, Madden r. Minneapolis, &c Ry. 32 103 N. Y. 581 ; Cooper v. Central Rid. Minn. 303 ; Towns r. Viokshurg, &c 44 Iowa. 134 ; Perry v. Ricketts, 55 111. Rid. 37 Ia An. 630. See Robinson v. 234 ; Chicago, &c Ry. v. Jackson, 55 111. Blake Manuf. Co. 143 Mass. 528. 492 ; Boardman v. Brown, 44 Hun, 336 ; » Mobile, &c. Rid. v. Thomas, 42 Hay^ V. Bnsh, Ac. Mannf. Co. 41 Hnn, Ala. 672 ; Chicago, &c. Rid. v. Pratt, 407 ; Baker v. Allegheny Valley Rid. 14 Bradw. 346 ; Duffy v. Upton, 113 14 Norris, Pa. 211 ; Harper ». Indian- Mass. 544 ; Marvin v. MuUer, 25 Hun, apolis, &c. Rid. 47 Mo. 567 ; King v. 163 ; Wonder v. Baltimore, &e. Rid. 32 Ohio, &C. Ry. 14 Fed. Rep. 277 ; Bean Md. 411. V. Oceanic Steam Nav. Co. 24 Fed. Rep. * Ex parte Johnson, 19 S. C. 492 ; 124 ; Bnshby c. New York, &c. Rid. Sanders v. Etiwan Phos. Co. 19 S. C 37 Hnn, 104 ; Pleasants v. Baleigh, &c. 510. 293 § 646 SORTS OP PERSONS AND OOMBININGS. [BOOK IV. not responsible.for a defect in a carriage unless aware of it ; '^ that an imperfection in machinery, to charge the master, either must have been known by him or by proper diligence he would have known it ; ^ that, in cases calling for tests, they should be applied ; ^ that, to charge the master with a neglect to fur- nish safe appliances, the danger must be such as to suggest itself to a man of ordinary prudence ;* that he should exer- cise a high degree of care in furnishing locomotives, &c. ; ^ " all reasonable care consistent with the nature and extent of his business, ... he is not responsible for hidden defects that could not have been discovered on the most careful inspec- tion ^"^ and that he, knowing a machine to be out of repair and dangerous, should properly repair it, or warn those using it of the danger.'' The result of all which would seem to be that, as precaution should be commensurate with the danger and the consequences of an accident, so should the carefulness with which tools, machines, and other like things are selected, looked after, and kept in repair. Herein the master should exercise the foresiglit and supervision common to prudent men in like circumstances. § 646. Newest Inventions — How Safe. — The master, in providing appliances, is not required to adopt every invention, as fast as made, or select at his peril the best, or things abso- lutely safe.8 What is suitable and ordinary in point of safety will suffice.^ For illustration, where a railroad company used on its cars the kind of oil which was common, and by no ordi- nary care could it have obtained knowledge of anything 1 Priestley v. Fowler, 3 M. & W. 1. McAtee, 61 Texas, 695 ; Texas, &c. Ky. ^ Hull ». Hall, 78 Maine, 114 ; Chi- v. Bradford, 66 Texas, 732 ; Chicago, cago, &c. Rid. V. Stites, 20 Bradw. 648. &o. Rid. «. Bragonier, 119 111. 51. , « Texas, &c Ry. v. Hamilton, 66 ' Chicago, &c. Rid. v. Smith, 18 Texas, 92. Bradw. 119 ; Philadelphia, &c. Bid. v. * Nelson ». Allen Paper Car-wheel Keenan, 7 Out. Pa. 124 ; Bums v. Chi- Co. 29 Fed. Rep. 840. cago, &c. By. 69 Iowa, 450 ; Coppins 6 Toledo, &c. Ry. v. Fredericks, 71 v. New York Cent. &c. Rid. 43 Hun, 111. 294 ; Wedgwood «. Chicago, &c. 26 ; Sanborn v. Atchison, &c. Rid. 35 By. 41 Wis. 478. Kan. 292 ; Hickey ». Taaffe, 1Q5 N. Y. s Devens, J. in Spicer v. South Bos- 26 ; Sweeney v. Berlin, &c. Co. 101 ton Iron Cq. 138 Mass. 426. N. Y. 520. ' Rice V. King ^Philip Mills, 144 » Camp Point Mannt Co. ». Ballon, Mass. 229. And see Texas, &o. By. v. 71 111. 417. 294 CHAP. XXXII.] MASTER TO SERVANT, FELLOW SERVANTS. § 647 poisonous in it, an employee was not permitted to recover damages for being poisoned thereby .^ And an implement with no defect discoverable on inspection satisfies the law ; though, in actual use, it gives way and damage follows to a servant.^ § 647. Dnty, the Master's — (Felloiw Servants — Keeping in Repair). — This duty of providing proper appliances is not a thing pertaining to the service, but it is the master's own. He may employ agents in discharging it ; * but the law does not deem them fellow servants, for the consequences of whose neglect he is not answerable to a servant. His neglect of this duty, whether personal or by agent, is his own.* On the other hand, there is some ground for saying, and by a part of the courts it is held, that, after machinery has been furnished, the keeping of it in order pertains to the running of it, as to which the master's duty is discharged by employing a competent and careful service.* But this exception admittedly requires some qualification ; * and, by other of our American courts, it is believed by most, it is not approved ; the master's personal duty extending equally to the procuring of safe machinery, and to the keeping of it in safe repair.^ Yet, in reason, there 1 Kittermgliam i;. Sionx City, &c track of a railway in repair, 'Waller c. By. 62 Iowa, 285 ; Chicago, ke. Eld. South Eastern Ey. 2 H. & C. 102 ; the V. Lonergan, 118 111. 41. chief engineer on a steam-vessel whose * The Dago, 31 Fed. Eep. 574 ; duty it was to see that the machinery Spicer v. South Boston Iron Co. 138 was kept in order, Searle c. Lindsay, 11 Mass. 426. Compare with Bradbury v. C. B. N. s. 429 ; an ' underlooker ' in Goodwin, 108 Ind. 286, where the mas- a mine whose duty it was to examine ter was held liable. And se* BaUon v. the roof of the mine and prop it when Chicago, &c. Ry. 54 Wis. 257. dangerous. Hall v. Johnson, 3 H. & C. * Shanny v. Androscoggin Mills, 66 589." Maine, 420. ° Rogers v. Ludlow Mannf. Co. 144 * Pennsylvania, &c Rid. v. Mason, Mass. 198. 13 Out. Pa. 296 ; Bushby v. New York, ' Northern Pac. Rid. v. Herbert, &c. Rid. 107 N. Y. 374 ; Stringham v. 116 U. S. 642 ; Shanny v. Androscog- Stewart, 100 N. Y. 516 ; Kain v. Smith, gin Mills, supra ; Benzing v. Steinway, 25 Hun, 146. 101 N. Y. 547 ; Chicago, &c. Eld. v. » McGee v. Boston Cordage Co. 139 Sullivan, 63 111. 293 ; Corcoran v. Hoi- Mass. 445, 448, referring to John- brook, 59 N. Y. 517 ; Macy v. St Paul, son V. Boston Tow-boat Co. 135 Mass. &c. Rid.. 35 Minn. 200 ; Madden v. 209, 212. "Thus," says W. Allen, J. Chesapeake, &c. Ry. 28 W. Va. 610, at the place last cited, " a person 617 ; EUey v. West Virginia Cent. &c. chaiged with the duty of keeping the Ey. 27 W. Va. 145. 295 § 649 SORTS OP PERSONS AND COMBININGS. [bOOK IV. is a difference between a radical harm to a machine or the wearing of it out, and those minor things the looking after which practically concerns its common use ; ^ and on this line the true distinction may perhaps be deemed to run. § 648. Place to Work: — The same Doctrine — applies to the place to work as to the appliances. The master, as a personal duty, must use rea- sonable care that the place is safe.^ And if it is not so, — for example, if his railroad is negligently constructed,^ — he cannot excuse himself to a servant injured on the ground that the defect is due to the negligence of a fellow servant.* There are under some facts difficulties, and there may be dif- ferences of judicial opinion, in the application of this rule, but the rule itself is well established. To illustrate, — § 649. Instances. — If a railroad company maintains over its track a bridge so low that a brakeman cannot be carried under it without stooping, and does not warn him of the dan- ger, he can have his action against it should he be injured by his head coming in contact therewith.^ But where a railroad bridge was in process of repair, and by reason of it a train was stopped at an unusual place on the bridge, and a brake- man fell through it, the road was held not to be liable ; ^ and plainly, in such a case, the temporary imperfections incident to a repair are not within the general rule. It was also the same where an injury resulted from imperfections in a staging erected by fellow servants in constructing a building.^ 1 Webber f. Piper, 109 N. Y. 496. « Trask v. California Southern Kid. 2 Arkerson ... Dennison, 117 Mass. 63 Cal. 96 ; Texas, &c. Ey. v. Kirk, 62 407 ; Haley v. Case, 142 Mass. 316 ; Texas, 227 ; Houston, &c. Ry. v. Mc- Mayhew v. SuUivan Mining Co. 76 Namara, 59 Texas, 255 ; Smith v. Mem- Maine, 100 ; Ford v. Lyons, 41 Hun, phis, &c. Eld. 18 Fed. Eep. 304. 612 ; Brickner ». New York Cent. Rid. * Pantzar v, Tilly Foster Mining Co. 2 Lans. 506 ; Warden v. Old Colony 99 N. Y. 368. Rid. 137 Mass. 204 ; Green v. Banta, » Baltimore, &c. Eld. v. Rowan, 104 48 N. Y. Super. 156 ; Delaney i). Hil- Ind. 88 ; Alt«e v. South Carolina Ey. ton, 50 N. Y. Super. 341 ; Illinois, &c. 21 S. C. 550. And see Voshuigh v. Eld. V. Whalen, 19 Bradw. 116 ; Knapp Lake Shore, &c. Ey. 94 N. Y. 374. V. Sionx City, &c. Ry. 65 Iowa, 91 ; ' Koontz v. Chicago, &c. Ry. 65 Goodman v. Richmond, &c. Rid. 81 Ya. Iowa, 224. 576 ; Allen v. Burlington, &c. Rid. 57 ' Armour v. Hahn, 111 U. S. 313 ; Iowa, 623. Peschel v. Chicago, &c. Ey. 62 Wis. 296 CHAP. XXXII.J MASTEE TO SERVANT, FELLOW SERVANTS. § 651 But where a workman is put upon a staging already erected, its negligent construction will charge the master.^ If a gas company injures a servant' by sending him into a room to work where there is escaping gas, it is liable.^ A servant's business required him to drive under a revolving shaft, which, between two trips, was without his knowledge so lowered that there was not room to drive under it without injury. And the master was held answerable to him for the resulting harm.^ Still,— § 650. Idmit of Master's liiability. — Though in the cases within our present rule the master is answerable to a servant for a fellow servant's negligence,* beyond this his responsi- bility is not absolute.^ Thus, where one employed another to remove sand from a large oven recently built, and the oven fell in and injured the servant, but the master was chargeable neither with knowledge of its dangerous condition nor with any negligence producing want of knowledge, the latter was held not responsible. " In order for the plaintiff to be enti- tled to recover in this action," observed Foster, J. " it must be shown that the defendant owed some duty to him and that there was a neglect of that duty. If the plaintiff received an injury as the result of an accident solely, and the defendant was without fault, the action is not maintainable." ^ And a railroad company is not absolutely bound to protect its ser- vants against danger from storms, landslides, washouts, and other things of the sort.' § 651. Information and Instruction: — General. — By safe appliances and a safe place, such as we 338 ; Kelley v. Norcross, 121 Mass. « Ante, § 648 ; Gates v. Southern 508 ; Hogan v. Field, 44 Hun, 72 ; Minnesota Ry. 28 Minn. 110, 112. Hoppin -0. Worcester, 140 Mass. 222, 6 Brown v. Acorington, &c. Co. 3 224 ; Benu v. Null, 65-IoAva, 407. See H. & C. 511. Kelly w. Detroit Bridge Works, 17 Kan. 6 jfason v. West, 78 Maine, 253. 558 ; Roberts v. Smith, 2 H. & N. 213, And see Pantzar v. Tilly Foster Mining 3 Jur. N. s. 469. Co. 99 N. Y. 368, 375 ; Atlanta Cotton 1 Arkerson v. Dennison, 117 Mass. Fac. v. Speer, 69 Ga. 137; Quincy Coal 407. Co. V. Hood, 77 III. 68. 2 Citizens Gas-light, &c. Co. v. ' Gates v. Southern Minnesota Ey. O'Brien, 118 111. 174. supra. ' Hawkins v. Johnson, 105 lud. 29. 297 § 652 SORTS OF PERSONS AND COMBININGS. [BOOK IV. have seen it to be the duty of the master to provide, are meant those which are attended only by the perils incident to the business. Every sort of service ha,s its special dangers, so has nearly every niachine or other appliance or situation. As to which, if the servant is not already informed, not if he is,^ it is the preliminary duty of the master to instruct him. And it is immaterial to this proposition whether the ignorance which is thus to be enlightened proceeds from inexperience, from imbecility, from youth, or from any other cause.^ Nor will the fact that the immediate occasion of an injury was the negligence of a fellow servant relieve the master ; ^ as, where a boy was put under the instruction of an adult in a shop, and told to do a certain thing, whereby he received harm, the mas- ter was adjudged to be responsible.* This duty is the master's own, as explained in preceding sections.^ § 652. Rules — Plans. — r It has been deemed incumbent on a railroad to make and promulgate such rules for the service as will give reasonable protection to its employees.® And one's failure to follow any precautionary rule, established by competent authority, is negligence;^ But not such is its non- observance by one to whom no knowledge of it has come.' Within the principle which governs a railroad's rules, any em- ployer is liable in damages to an injured employee if he causes 1 SiilHvan v. India Mairaf. Co. 113 * Dowling v. Allen, supra ; Union Mass. 396 ; Curran v. Merchants Manuf. Pac. Eld. v. Fort, 17 Wal. 553. Co. 130 Mass. 374. « Coombs v. New Bedford Cordage 2 Atkins V. Merrick Thread Co. 142 Co. 102 Mass. 672, 599 ; Brennan v. Mass. 431 ; McDade v. Washington, Gordon, 13 Daly, 208 ; Missonri Pac. &c. Eld. 6 Mackey, 144 ; Baxter . St. Paul, &c. Co. 101 N. Y. 520 ; Linch v. Sagamore Ry. 32 Minn. 54; Kenney o. Shaw, 133 Manuf. Co. 143 Mass. 206; DeForest Mas-s. 501 ; Monlton v. Gage, 138 Mass. v. Jewett, 88 N. Y. 264 ; Yeaton v. 390 ; Hathaway v. Michigan Cent. Eld. Boston, &c. Eld. 135 Mass. 418. 51 Mich. 253 ; Bryant v. Burlington, * Howd v. Mississippi Cent. EH. 50 &c. By. 66 Iowa, 305 ; Houston, &c. Missis. 178 ; Fort Wayne, &c Eld. ». Ry. «. Fowler, 56 Texas, 452 ; Rush v. Gildersleeve, 33 Mich. 133 ; Whittaker Missouri Pac. Ry. 36 Kan. 129 ; Brown v. Coombs, 14 Bradw. 488 ; Michigan V. Chicago, &c. Ry. 69 Iowa, 161 ; Cent. Eld. v. Smithson, 45 Mich. 212 ; 311 § 677 SORTS OP PERSONS AND COMBININGS. [BOOK IV. those special to an employment which the servant knows to be exceptionally hazardous.^ And, — § 676. Infant. — This being a doctrine of waiver,^ therefore not requiring a contract valid in law,^ an infant of sufficient actual capacity is bound by it the same as an adult.* More- over, — § 677. During Employment. — As an executed waiver never requires a consideration to render it valid,^ this doctrine of the assumption of risks applies as well to those which first arise or become known to the servant during the service as to those in contemplation at the original hiring.® Undoubtedly a master who exposes his servant to dangers not within the contract of hiring violates it ; but a servant who, on discover- ing them, neither informs nor protests to the master, nor yet abandons the service, assumes the risks, so that he cannot complain though injury follows.^ If, for example, appliances become unsafe in their use, he should notify the master; thereupon, if the latter promises repair, the careful continuing of their use while waiting for it does not ordinarily imply waiver, and the servant may have compensation for any result- ing damages.^ But this is not necessarily so under all circum- Coolbroth v. Maine Cent. Rid. 77 Maine, 138 ; St. Louis, &c. By. v. Britz, 72 165. III. 256 ; Umback v. Lake Shore, &c. 1 Gibson v. Erie Ry. supra ; Tuttle By. 83 lud. 191 ; Jackson ii. Kansas V. Detroit, &c. By. 122 U. S. 189 ; City, &c. Rid. 31 Kan. 761 ; Scott v. Johnson v. Bruner, 11 Smith, Pa. 58 ; Oregon By. &c. Co. 14 Oregon, 211 ; Howland v. Milwaukee, &c. By. 54 Foley v. Chicago, &c. By. 48 Mich. 622 ; Wis. 226 ; Kelley v. Chicago, &c. By. Moline Plow Co. v. Anderson, 19 Bradw. 35 Minn. 490 ; Brossman v. Lehigh 417 ; Lawless v. Connecticut Biver Rid. Valley Bid. 3 Am. Pa. 490 ; Chicago, 136 Mass. 1. &G. Bid. V. Ward, 61 111. 130. ' Anderson u. Winston, 31 Fed. Bep. 2 Ante, § 49-53. 528 ; Brewer v. FUnt, &c. By. 56 Mich. ' Bishop Con. § 791, 804, 805. 620 ; Naylor v. Chicago, &o. By. 53 * McGinnis v. Canada Southern Wis. 661 ; Galvreston, &c. Ry. v. Drew, Bridge, 49 Mich. 466 ; Gilbert v. Guild, 59 Texas, 10 ; Money v. Lower Vein 144 Mass. 601 ; Schwandner v. Birge, Coal Co. 55 Iowa, 671 ; Houston, &c. 33 Hun, 186 ; De Graff v. New York By. v. Myers, 55 Texas. 110 ; Pingree Cent. &c. Eld. 76 N. Y. 125, 132 ; v. Leyland, 135 Mass. 398 ; Atlanta, Palmer v. Harrison, 57 Mich. 182. &c. By. v. Bay, 70 Ga. 674. 6 Bishop Con. § 804. 8 Flynn v. Kansas City, &c. Eld. 78 Hatt ». Nay, 144 Mass. 186 ; Rob- Mo. 195 ; Missouri Furnace Co. v. inson v. Houston, &c. By. 46 Texas, Abend, 107 111. 44; Sioux City, &c. 540 ; Toledo, &c. By. v. Eddy, 72 111. Eld. v. Finlayaon, 16 Neb. 578 ; Greene 312 CHA?. XXXII.J MASTER TO SERVANT, FELLOW SERVANTS. § 678 stances ; ^ as, if, notwithstanding the promise, the danger " was," in the language of Harlan, J. " so imminent or mani- fest as to prevent a reasonably prudent man from risking it " notwithstanding the promise, the servant's continuing in what is thus plainly dangerous will bar him on the ground of contributory negligence.^ And there may be a moral coer- cion,^ such as a threat to discharge,* which will prevent the waiver from attaching. § 678. Servant not Knowing. — A servant is justified in re- lying in some degree on the prudence and caution of the mas- ter, who will be presumed to put into his hands only safe appliances.^ And the master will be responsible for the con- sequences of a defect which he knew, but the servant did not.^ Or, if the former suddenly orders the latter into a dangerous position not well understood by him, and does not impart the needed instruction, the like responsibility arises.^ Ordinarily the servant will be presumed to know what is obvious, or what he has the ready means of knowing ; ^ but, for example, there is no presumption that a brakeman has the skill to determine from an inspection of the brakes their unfitness for use,^ or that a laborer shovelling earth at the bottom of a cistern is aware of its negligent construction, rendering it liable to fall on him.^" On the other hand, it was held that a laborer wheeling earth along the edge of a bank while the frost is coming out presumptively knows the danger of a caving in, therefore assumes the risk.^ There are dangers equally V. Minneapolis, &c. Ey. 31 Minn. 248 ; &c. Rid. v. Duffield, 12 Lea, 63 ; Howard Union Manuf. Co. u. Morrissey, 40 Ohio Oil Co. v. Farmer, 56 Texas, 301. And State, 148. see Malone v. Morton, 84 Mo. 436. 1 Marsh v. Chickering, 101 N. Y. * Behm v. Armour, 58 Wis. 1 ; Ma- 396. lone v. Hawley, 46 Cal. 409. 2 District of Columbia 1). McEUigott, ' Pittsburgh, &c. Ry. o. Adams, 105 117 U. S. 621, 633. Ind. 151. * Chicago, &o. Rid. v. Clark, 11 ^ Rasmussen v. Chicago, &c. Ry. 65 Bradw. 104. And see Fairbank v. Iowa, 236 ; Davis v. Detroit, &c. Eld. Hacntzsche, 73 III. 236. 20 Mich. 105; Heath v. Whitebreast * Jones V. Lake Shore, &c. Ry. 49 Coal, &c. Co. 65 Iowa, 737 ; Aldiidge Mich. 573 : East Tenn&ssee, &c. Rid. v. v. Midland Blast Furnace Co. 78 Mo. Duffield, 12 Lea, 63 ; Leary v. Boston, 669. &c. RKl 139 Mass. 580. » Central Eld. v. Haslett, 74 Ga. 59. 5 Fort Wayne, &c. Rid. v. Gilder- '" Mulcaiins v. Janesville, 67 Wis. 24. sleeve, 33 Mich. 133 ; East Tennessee, " Olson ». McMuUen, 34 Minn. 94. 313 §680 SORTS OP PERSONS AND COMBININGS. [BOOK IV. known to the master and servant ; as to which, the ordinary rule relieves the master of responsibility for an injury resulting to the servant.1 And still the master must take reasonable care to avoid unnecessary danger,^ while yet the servant does not assume the risk of that whereof he has no knowledge.* § 679. The Servant's Contributory Negligence : — The General Doctrine — of contributory negligence is ex- plained in a preceding chapter.* It is simply that doctrine, with no special modifications, which governs the present sub- ject. Thus, — § 680. Defined. — Though the master has not provided safe appliances and suitable fellow servants, or though he is other- wise negligent, yet if the servant is himself negligent in the doing of that from which an injury has resulted to him, he cannot enforce compensation from the master.^ 1 Galveston, &c. Ry. v. Lempe, 59 Texas, 19 ; Gibson v. Erie By. 63 N. Y. 449, 453. 2 O'Neil V. St. Louis, &c. Ey. 3 Mc- Crary, 423 ; Palmer v. Denver, &c. Ry. 3 McCrary, 635. » 'Waldhier v. Hannibal, &c. Rid. 87 Mo. 37 ; Cole u. Chicago, &c. Ry. 67 Wis. 272. 1 Ante, § 458-470. 5 Cornwall v. Charlotte, &o. Rid. 97 N. C. 11 ; Lane v. Central Iowa Ey. 69 Iowa, 443 ; Simmons v. Chicago, &c. Rid. 110 111. 340 ; Kelly v. pinion Ry. &c. Co. 11 Mo. Ap. 1 ; Powers v. New York, &c. Eld. 98 N. Y. 274 ; Rohel v. Chicago, &c. Ey. 35 Minn. 84 ; Jones V. Louisville, &b. Eld. 82 Ky. 610; Dunmead w. American Min. &c. Co. 4 McCrary, 244 ; Cooper v. Butler, 7 Out. Pa. 412 ; Augusta, &c. Rid. v. Dorsey, 68 Ga. 228 ; Sehroeder v. Michigan Car Co. 56 Mich. 132 ; Clark ». St. Paul, &c. Rid. 28 Minn. 128 ; The State v. Malster, 57 Md. 287 ; McGrath ». New York, &c. Rid. 14 R. I. 357 ; Clark v. Richmond, &c. Rid. 78 Va. 709 ; Mil- ler V. Union Pac. Ry. 2 McCrary, 87 ; Owen V. New York Cent. Rid. 1 Lans. 108 ; Baker v. Hughes, 2 Colo. 79 ; 314 Pennsylvania Rid. ». Wachter, 60 Md. 395 ; Craig v. Manhattan Ey. 18 Daly, 214 ; Wells ». Coe, 9 Colo. 159 ; Wood- ward Iron Co. V. Jones, 80 Ala. 123 ; Sheeler v. Chesapeake, &c. Rid. 81 Va. 188 ; White v. Nonantum Worsted Co. 144 Mass. 276 ; Lehigh Valley Rid. v. Greiner, 3 Am. Pa. 600 ; Downey v. Chesapeake, &c. Ry. 28 W. Ta. 732 ; St. Louis Bolt, &c. Co. v. Brennau, 20 Bradw. 555 ; Chicago, &c. Rid. v. Dig- nan, 56 III 487 ; Central Trust Co. v. Wabash, &c. Ry. 26 Fed. Rep. 897 ; Henry v. Sioux City, &c. Ry. 66 Iowa, 52 ; Brown v. Byroads, 47 Ind. 436 ; Mxildowney v. Illinois Cent. Rid. 39 Iowa, 615 ; Sprong v. Boston, &c. Eld. 58 N. Y; 56 ; Illinois Cent. Rid. v. Pat- terson, 69 111. 650 ; Cunningham v. Chicago, &c. Ry. 17 Fed. Rep. 882; Farmer v. Central Iowa Ry. 67 Iowa, 136; Gibbons v. Chicago, &c. Ry. 66 Iowa, 231 ; Bucklew v. Central Iowa Ry. 64 Iowa, 603 ; Hooper v. Columbia, &c. Eld. 21 S. C. 541 ; Murphy v. New York Cent. &c. Eld. 11 Daly, 122 ; Ferguson v. Central Iowa Ry. 58 Iowa, 293 ; Martensen ». Chicago, &c. Ry. 60 Iowa, 705 ; Farley v. Chicago, &c Ry. 56 Iowa, 337 ; Chambers t>. Western CHAP. XXXII.] MASTEB TO SERVANT, FELLOW SERVANTS. § 683 § 681. The Previous Expositions, — in the chapter just re- ferred to, having made plain the nature of the doctrine, its reasons, and the methods of its application, and multitudes of cases having just been cited to aid the practitioner under the present head, it would not be within the scope of this volume to enter here upon a minuter statement of the special facts, and the decisions upon them, in the several litigated cases. VII. Tlie lAdbilities of the Master. § 682. Already, — ; in the preceding sub-titles, we have pretty well exhausted the subject of this. Yet a few more explana- tions are desirable. § 683. Defined. — The doctrine is, that the master is not the insurer of his servants against accidents in his service,^ yet that he owes to them carefulness, to a degree reasonable in the particular instance, in providing for them and keeping in repair safe appliances and a safe place to work, in selecting suitable fellow servants, and in giving the needed instruction to those who are new to the business or of immature capacity ; ^ and, for an injury which, through negligence in this duty, comes to a servant who is not himself contributorily negli- gent, he is responsible, but not for injuries from defects in the N. C. Eld. 91 N. C. 471 ; St. Louis, 307 ; Thorpe v. Missouri Pac. Ry. 89 &e. Rid. V. Marker, 41 Ark. 542 ; Mo. 650 ; Stroble v. Chicago, &c. By. Pfeiffer v. Ringler, 12 Daly, 437 ; Sa- 70 Iowa, 555 ; Chicago, &c. Ry. v. vannah, &c. Ky. v. Barber, 71 Ga. 644; Snyder, 117 111. 376 ; Bauer v. St. Eiley v. Connecticut River Rid. 135 Louis, &c. Ey.' 46 Ark. 388 ; Hughes Mass. 292 ; Blanchette ■». Border City v. Winona, &c. Rid. 27 Minn. 137 ; Manuf. Co. 143 Mass. 21 ; Kresanowski Walsh v. St. Paul, &c. Rid. 27 Minn. V. Northern Pac. Rid. 5 McCrary, 528, 367 ; Chicago, &o. Ey. v. Donahue, 75 18 Fed. Rep. 229 ; McKune v. Cali- 111. 106 ; Sherman v. Chicago, &c. Ey. fomia Southern Rid. 66 Cal. 302 ; Ca- 34 Minn. 259. hill V. Hilton, 106 N. Y. 512 ; Reading i Ante, § 657 ; Muster v. Chicago, Iron Works «. Devine, 13 Out. Pa. 246 ; &e. Ey. 61 Wis. 325 ; Whitelaw v. East Tennessee, &c. Rid. v. Eush, 15 Memphis, &c. Rid. 16 Lea, 391 ; Viets Lea, 145 ; Bunt v. Sierra Buttes Gold v. Toledo, &c. Ry. 55 Mich. 120 ; Dal- Min. Co. 24 Fed. Rep. 847 ; Kroy v. las v. Gulf, &o. Ry. 61 Texas, 196 ; Chicago, &c. Eld. 32 Iowa, 357 ; Gard- Richardson v. Pacific Mail Steams. Co. ner v. Michigan Cent. Eld. 68 Mich. 5 Saw. 252. 584 ; Meinphis, &c. Eld. v. Thomas, 51 ^ Ante, § 651, 652 ; Williams v. Missis. 637 ; Kelly v. Abbot, 63 Wis. Churchill, 137 Mass. 243. 315 686 SORTS OF PERSONS AND COMBININGS. [BOOK IV. appliances or place not discoverable on due examination, or for the negligence of carefully selected fellow servants, or for in- juries from situations and appliances the risks whereof the servant has assumed.^ § 684. Master's Negligence Contributing. — Within a doc- trine explained in a preceding chapter ,2 a master whose negli- gence contributed to the injury of a servant is, if the servant's negligence did not contribute also, liable for the entire injury, though some other force for which the former is not respon- sible — for example, the negligence of a fellow servant — likewise contributed.^ § 685. Sunday Accidents. — The running of trains on Sun- day by railroads is not in all circumstances a violation of the statutes ; or, if it were, this circumstance would not by the better doctrine * protect the road from liabilities to servants for injuries received in such service ; ® or, on the other hand, create a responsibility where there would be none ordinarily.^ Servant or not. — A servant's wife is not a servant : 1 Ante, § 637, 639, 643, 647, 658, 665, 671, 675, 677, 680 ; Kuhns v. Wis- consin, &o. Ry. 70 Iowa, 561 ; Henry V. Brady, 9 Daly, 142 ; Ross v. Chicago, &e. Ey. 2 McCrary, 235 ; Hofnagle v. New York Cent. &c. Rid. 55 N. Y. 608 ; Toledo, &c. Ry. v. Ingraham, 77 111. 309 ; Pool V. Chicago, &c. Ry. 56 Wis. 227 ; O'Donnell v. Allegheny Val- ley Rid. 9 Smith, Pa. 239 ; Ransier v. Minneapolis, &c. Ry. 32 Minn. 331 ; Chicago, &c. Rid. v. Rung, 104 111. 641 ; McDermott v. New York Cent. &c. Rid. 28 Hun, 325 ; Kelley v. Chi- cago, &c. Ey. 53 Wis. 74 ; Chicago, &c. Rid. V. Bingeuheimer, 116 111. 226 ; Lookwood V. Chicago, &c. Ey. 55 Wis. 50 ; International, &c. Ey. v. McCar- thy, 64 Texas, 632 ; Harold v. New York Cent. &c. Rid. 13 Daly, 89 ; Young V. New York Cent. &o. Eld. 13 Daly, 294 ; Gulf, &c. Ry. v. Eedeker, 67 Texas, 181 ; Atlanta, &c. Ey. v. Woodruff, 66 Ga. 707 ; Ryan v. Miller,- 12 Daly, 77 ; Chicago, &o. Eld. v. Lon- ergan, 118 111. 41 ; Nichols v. Chicago, 316 &c. Ey. 69 Iowa, 154 ; Central Eld. v. DeBray, 71 Ga. 406 ; O'Neill v. Keo- kuk, &c. Ey. 45 Iowa, 546 ; Flynn v. Kansas City, &c. Eld. 78 Mo. 195 ; Greenwald v. Marquette, &c. Eld. 49 Mich. 197 ; East Tennessee, ' &c. Eld. v. Gurley, 12 Lea, 46 ; Pennsylvania Co. V. Eoney, 89 Ind. 453 ; Beams v. Chi- cago, &o. Eld. 58 Iowa, 150 ; Lee w. Woolsey, 13 Out. Pa. 124 ; Sehall v. Cole, 11 Out. Pa. 1 ; Gumz v. Chicago, &c. Ey. 52 Wis. 672 ; Jeffrey v. Keo- kuk, &c. Ry. 56 Iowa, 546 ; Somerset, &c. Eld. V. Galbraith, 13 Out. Pa. 32. 2 Ante, § 518. 8 Crntchfield v. Richmond, &o. Eld. 76 N. C. 320 ; Boyce v. Fitzpatrick, 80 Ind. 526 ; Paulmier v. Erie Eld. 5 Vroom, 151 ; Stringham v. Stewart, 100 N. Y. 516 ; Baltimore, &c. Eld. v. McKenzie, 81 Va. 71. * Ante, § 62-64. * Johnson v. Missouri Pao. Ry. 18 Neb. 690. » Houston, &o. Ey. v. Rider, 62 Texas, 267. CHAP. XXXn.] MASTER TO SERVANT, FELLOW SERVANTS. § 688 SO that, for example, if she is a passenger on a railroad where- on he is employed, and she receives an injury through the negligence of a fellow servant, he may have his damages of the road.i But one who assists a servant, though voluntarily and temporarily, is a servant within the doctrines of this chapter ,2 — a proposition subject to qualifications under spe- cial circumstances.^ There are other similar questions, aris- ing under varying facts, but their solution will ordinarily be obvious.* VIII. The LicSilitieB of the Servants to One Another. § 687. General. — A servant sued by a fellow servant whom his negligence has injured, cannot avail himself of the mas- ter's non-liability. But, within the doctrine that one is an- swerable personally for his torts committed in a service, explained in the last chapter,^ the liability of fellow servants to one another is the same as between any other persons.^ IX. Statutory Modifications of the Doctrines. § 688. General — In most of our States, the doctrines of the common law, as explained in the foregoing sub-titles, remain undisturbed by statutory innovations. In a few of them, there are statutes more or less changing the common- law rules. If they were more numerous, it would still not be within the plan of this volume to enter much into their consideration. The forms of legislation differ; thus, — 1 Gannon v. Housatonic Eld. 112 * O'Brien v. Boston, &o. Eld. 138 Mass. 234. Mass. 387 ; Connolly v. Davidson, 15 2 Degg V. Midland Ey. 1 H. & N. Minn. 519 ; Philadelphia, &c. Eld. v. 11Z, 3 Jur.. N. s. 395 ; Potter v. Faulk- The State, 58 Md. 372 ; Curley v. Har- iier, 1 Best & S. 800 ; Mayton v. Texas, ris, 11 Allen, 112 ; McCaffrey v. Georgia &c. Ey. 63 Texas, 77 ; Barstow v. Old Southern Eld. 69 6a. 622 ; Phillips v. Colony Eld. 143 Mass. 535 ; Bradley v. Chicago, &c. Ey. 64 Wis. 475 ; The Nashville, &o. Ey. 14 Lea, 374. State v. Western Md. Eld. 63 Md. 433. > Pennsylvania Co. v. Gallagher, 40 « Ante, § 622-630. Ohio State, 637 ; Eason v. Sahine, &c. « Osbome v. Morgan, 130 Mass. 102 ; Ey. 65 Texas, 577 ; Abraham u. Eey- Osbome v. Morgan, 137 Mass. 1 ; Eog- nolds, 5 H. & N. 143, 6 Jur. n. s. 53. ers v. Overton, 87 Ind. 410 j Griffiths 317 § 690 SORTS OP PERSONS AND COMBININGS. [BOOK IV. § 689. In England, — where the longing to be rid of the admirable reasoning of the common law, which has made the administration of justice both an ornament and a blessing, and imparted wisdom and stability to the government itself, has in recent 3'ears led to extensive transmutations of common- law doctrines into statutory ones, those within our present elucidations have received the blight of the parliamentary touch. The statute prevailing at the time of the present writing " may be cited as the Employers' Liability Act, 1880," and as such it is commonly known.^ In some degree, yet not greatly, it changes the common law ; of which, in its leading feature, it is a codification. In its workings, it follows the ordinary rule in such cases ; namely, it increases the uncer- tainties of the law, multiplies litigation, and makes the courts busy in wrangles over the interpretation, instead of improving the minds of the judges and augmenting their capacity for usefulness by exercises in the profounder reasonings of the law.2 § 690. With us, — while there seems to have been some legislation of the codification sort, most of the little we have, has been in the legitimate changing of common-law rules by statutes.^ The most important change, found in only a few V. Wolfram, 22 Minn. 185 ; Cray «. on in this one is Thomas v. Quarter- Philadelphia, &c. Kid. 23 Blatch. 263, maine, 18 Q. B. D. 685. There also the 267, 268. judges were divided on a question plain 1 43 & 44 Vict. c. 42. at the common law, hut this time it 2 Thus, looking for late English was the minority that deemed it to be cases, the iirst one to which by chance within the statute. Here, at the outset I open is Yarmouth v. France, 19 Q. of our looking, the first two cases have B. D. 647. The common law govern- set the judges by the ears, while neither ing the question was plain, but the would have been carried into court but judges differed as to whether it was for the codification. Instead of travel- within the common law or the statute, ling through the rest of the cases, a part The majority deemed it statutory ; and of which would be found to be like these then followed the profound inquiry, and a part not, let us pause and reflect, which the statute rendered imperative, " I do not propose to refer to the whether or not a wharfinger's driver is statutes, that being a work which each a "workman," a horse is a "plant," practitioner can best do for himself, for and an inveterate disposition to kick his own State. Some of the cases which is a "defect in the condition" of the happen to be before me are — plant. One judge dodged this que.stion, California. — Beeson v. Green Moun- and the rest argued it out in the affirm- tain Gold Min. Co. 57 Cal. 20. ative. The case principally commented Dakota. — Herbert v. Northern Pac. 318 CHAP. XXXII.] MASTER TO SERVANT, FELLOW SERVANTS. § 691 States, consists of taking from the master his common-law protection from liability for a fellow servant's negligence. While the English legislation is an abortive attempt to lighten the labor of lawyers and judges by a pretended simplification of the law, resulting in new uncertainties, an increase of liti- gation, and a transmuting of the reasonings of the common law into quiddlings over words and phrases, the American is in the interest of shifting the responsibilities of labor upon capital, and so forcing indirectly something out of capital for the benefit of labor. Combinations to compel employers to pay the same wages to poor workmen as to good ones, strikes to keep up or raise wages, and various other like things have the same beneficent end in view ; but the end to which they all are really travelling is the driving of capital into invest- ments in which it will not employ labor, thus reducing the wages of some and leaving others with nothing to do, increas- ing the profits of the employers by augmenting the prices of necessaries for the poor, and making the rich of the country richer and the poor poorer. § 691. The Doctrine of this Chapter restated. From the nature of the present subject, and of the divisions of it required to render the elucidations clear, more than the average repetitions have in its treatment become necessary. Therefore a restatement of the doctrines here would seem to be superfluous. The leading principle, around which the oth- ers cluster, is, that the master should exercise, in the carry- RM. 3 Dak. 38 ; Northern Pac. Rid. v. 644 ; Malone v. Bnrlmgton, &c. By. 65 Herbert, 116 U. S. 642. Iowa, 417 ; Lucer. Chicago, &c. By. 67 Georgia. — Georgia Rid. &c. Co. v. Iowa, 75 ; Matson «. Chicago, &c. Ry. Goldwire, 56 Ga. 196 ; Georgia Eld. v. 68 Iowa, 22 ; Stroble v. Chicago, &c. iTey, 73 Ga. 499. Ry. 70 Iowa, 555 ; Chicago, &c. Ey. v. Iowa. — Philo V. Illinois Cent. Rid. McLaughlin, 119 U. S. 566. 33 Iowa, 47 ; McKnight ». Iowa, &c. Kansas. — Kansas Pac. By. v. Pea- Rid. Const. Co. 43 Iowa, 406; First Nat. rey, 29 Kan. 169 ; Union Pac. Ry. v. Bank v. Davies, 43 Iowa, 424 ; Smith Harris, 33 Kan. 416 ; Kansas Pac. Ry. V. Borlington, &c. Ry. 59 Iowa, 73 ; «. Peavey, 34 Kan. 472. Hoiiser v. Chicago, &c. Ry. 60 Iowa, Maryland. — The Highland Light, 230; Foley v. Chicago, &c. Ry. 64 Iowa, Chase Dec 150. 319 § 691 SORTS OP PERSONS AND C0MBININ6S. [BOOK IV. ing on of his business, all the watchfulness over his servants and employ all the safeguards which a reasonable and consid- erate prudence may dictate. For any violation of this duty, resulting in an injury to a servant, he is answerable to him. But for casualties not traceable to any neglect or to any other wrong in the master, he is not responsible. This also is the leading principle governing the liabilities of men to one an- other in the other relations of life. From this principle pro- ceeds the common-law doctrine, more objected to than all the others within this title, that the master who carefully chooses his servants is not answerable to one of them for injuries re- sulting from the negligence of another, — a doctrine in a few of the States obliterated by statutes. 320 CHAP. XXXIII.] PRINCIPAL AND AGENT. § 694 CHAPTER XXXIII. PRINCIPAL AND AGENT. § 692. Compared Twith Master and Servant. — An agent is one who acts either generally or in a particular thing in the hehalf or instead of another, called the principal. So that, as there cannot be a master without a servant or a servant with- out a master,! there cannot be a principal without an agent or an agent without a principal. Moreover, a servant is com- monly an agent, and ordinarily an agent is a servant. In the law of contracts, the related parties are usually termed prin- cipal and agent ; in the non-contract law, master and servant. In both, there may be an agent or servant by estoppel ^ as well as by direct appointment. Hence, — § 693. Already. — The elucidations of the last two chapters cover also the subject of this. A few deductions from the larger doctrines may be serviceable here ; thus, — § 694. Agency not disclosed. — An agent who contracts for the principal without disclosing his agency is personally bound.^ Therefore, if such contracting consists of hiring a workman, the agent is answerable to the workman for inju- ries suffered from the agent's negligence.* On the other hand, a principal not disclosed by his contracting agent may enforce the contract in his own name,^ or the person bargain- ing with such agent may on ascertaining the facts sue the principal.^ Then, should such an agent, really in his master's service but apparently acting for himself, injure another by a 1 Ante, § 599. » Bishop Con. § 1076. * Ante, § 600 ; Bishop Con. § 288, " Malone v. Morton, 84 Mo. 436. 1091 ; Toledo, &c. Ey. v. Elliott, 76 6 Bishop Con. § 1080. 111. 67 ; Earle v. WaUingfoid, 44 Vt. « lb. § 1079. 367. 21 321 § 696 SORTS OP PEESONS AND COMBININGS. [BOOK IV. tort, the latter may if he elects recover his damages of the master.^ § 695. Agent's 'Wrong. — As a servant is liable for his own torts,2 so also is one who is termed agent. Thus, if he assists the principal in a breach of trust, he is personally responsible.* But if there is a duty resting on the principal and not on the agent, its non-performance by the latter creates no liability in him.* For example, an agent having the care of real esta,te is not answerable to a third person for injuries through his neglect to keep it in safe repair.^ § 696. The Doctrine of this Chapter restated. The relation of principal and agent is nearly yet not abso- lutely identical with that of master and servant. The former correlate term is commonly employed in the law of contracts ; the latter, in the non-contract law. This is the chief expla- nation required under the present head. A vice-principal, spoken of in the last chapter, is with greater accuracy of lan- guage termed an agent than a servant. But the words em- ployed to describe a thing in the law are quite distinct from the law itself. 1 Pickens v. Dieoker, 21 Ohio State, ♦ Ante, § 446, 628. 212. 5 Delauey v. Rochereau, 34 La. An. ^ Ante, § 622-630. 1123. And see Ciandall v. Loomia, 56 ' Attorney-General ». Leicester, 7 Vt. 664. Beav. 176. * 322 CHAP. XXXIV.J PERSONS ASSUMING SPECIAL SKIIi. § 699 CHAPTER XXXIV. PEKSONS ASSUMING SPECIAL SKILL. § 697. Intiodaction. 698-703. In GeneiaL 704-707. Lawyers. 708-715. Physicians and Soigeons. 716. Apothecaries. 717. Doctrine of Chapter restated. § 697. How Chapter divided. — We shall consider, I. The Doctrine in General ; II. Lawyers ; III. Physicians and Surgeons ; IV. Apothecaries. I. The Doctrine in General. § 698. Defined. — It is a species of deceit,^ therefore action- able, for one to assume skill or learning which he does not possess, and thereby procure another, whether through a con- tracting 2 or not, to employ him about some matter, then do it Tmskilfully or ignorantly, — or, having the skiU and knowl- edge, do a thing about which he is employed negligently, — in either case, to the other's injury .^ And it is a similar wrong, the limits of which are not so easily defined, for one in a position acquired through possessing some special skill or knowledge, to injure a third person by a malfeasance of his duties. Thus, — § 699. Caterer. — A caterer, by virtue of his profession, holds himself out as competent and trustworthy to provide 1 Ante, § 315. 848, 352 ; Slaters. Baker, 2 Wils. 359 ; « Bishop Con. § 246, 1416. Geoi^t;. Skivington, Law Rep. 5 Ex. » The New World v. King, 16 How. 1 ; Lee r. Walker, Law Eepw 7 C. P. U. & 469 ; Seare v. Prentice, 8 East, 121. 323 § 703 SORTS OP PERSONS AND COMBININGS. [BOOK IV. proper and wholesome food. Thereupon, if he prepares a sup- per for a ball, one who partakes of it and is injured by its unwholesomeness may have of him the damages.^ § 700. An Examiner of TiUea — is answerable for an injury resulting from a lack of the ability or carefulness which his holding out, or his assumption of the duty, implies.^ §701. Answerable for what — (Engineer). — An engineer or surveyor is liable for injuries from his want of reasonable and ordinary skill, from his negligence, and from his frauds, but he is not an insurer of the correctness of his work.^ And the like principle applies to other analogous cases ; one taking upon himself to do a thing within his profession does not guarantee success.* § 702. Answerable to whom — Contract or not. — The lia- bility will be only to some person legally injured.^ And there are circumstances in which, if there is no contract between the one complaining and the other, there is no Iqgal injury.^ But commonly the harm is the same whether thei*e is a contract or not, or if there is a contract, whether the com- plaining party is privy to it or not ; simply the one who has suffered from the wrong brings his action against the wrong-doer.'^ § 703. Universality of Doctrine. — The principles thus stated are from their nature universal, extending through all the activities of life. The particular applications of them to be stated in the remaining sub-titles are mere added illustra- tions of the foregoing doctrine; they are not presented as exhaustive of the subject. 1 Bishop V. Weter, 139 Mass. 411. 6 Ante, § 22-34, 143, 254, 315. 2 Eoberts v. Leon Loan, &o. Co. 68 ' Ante, § 73, 76 ; Longmeid «. Hol- lowa, 76 ; Kankiu v. Scliaeifer, 4 Mo. liday, 6 Exch. 761 ; Savings Bank v. Ap. 108 ; Roberts v. Sterling, 4 Mo. Ward, 100 U. S. 195. Ap. 593 i Chase v. Heaney, 1X1 111. 268 ; ' Pippin v. Sheppai-d, 11 Price, 400 ; Knights D. Quarles, 4 Moore, 532. Thomas*. Winchester, 2 Seldcn, 397 ; » McCarty v.. Bauer, 3 Kan. 237. Norton v. Sewall, 106 Mass. 143 ; Parke^ * Bishop Con. § 1416 ; Lanphier v. B. in Longmeid v. Holliday, supra, at Phipos,, 8 Car. & P. 475, 479 ; Hancke p. 767 ; Bishop v. Weher, 139 Masa. I). Hooper, 7 Car. & P. 81. 411. 324 CHAP. XXXIV.] PEESONS ASSUMING SPECIAL SKILL, § 705 II. Lawyers. § 704. General — One who holds himself out as a legal practitioner assumes thereby the professional learning and skill which are common to lawyers.^ And a client injured from a lack of such learning and skill, or from the negligent discharge of a duty whether by one competent or not, may have his action in tort for the damages, yet not for the conse- quences of those mistakes and miscalculations which are in- evitable in professional practice.^ This liability is deemed in England to attach only to attorneys, who ai'e entitled to en- force compensation for their services, not to counsel who cannot recover fees because their employment is in legal contemplation honorary.* In an English book* it is stated that there is no instance of a successful action for a barrister's neglect ^ but, if he "intentionally does a wrong, and acts with malice, fraud, or treachery in the discharge of his professional duties, he will be responsible like every other wrong-doer for the mischief thereby occasioned." ^ With us, all lawyers stand as to their fees in the position of the English attoi'neys, and it is immaterial what may be the rights and liabilities of barristers. § 705. Degree of Negligence. — By some opinions, the negli- gence or ignorance which will charge a lawyer must be gross.® Yet it would be difficult to assign any just reason for exempt- ing him from ordinary professional learning and care ; so that we may deem the better rule to be, what is by others laid down, that he is responsible for injuries to his clients from a 1 Caverly ». McOwen, 123 Mass. 574 ; Yalden, supra, at p. 2061, and of Holt Bowman v. Tallman, 27 How. Pr. 212 ; in Adams v. Savage, Holt, 179. Iieighton v. Sargent, 7 Fost. N. H. 460. * Addison Torts, p. 500, of Am. ed. 2 Pitt V. Yalden, 4 Bur. 2060 ; Bus- of 1876. sel V. Palmer, 2 Wils. 325, explained 4 ^ Referring to Swinfen v. Chelms- Bnr. 2063 ; Green v. Bennett, 1 T. E. ford, 5 H. & N. 890, 919. 656 ; Eeece v. Bighy, 4 B. & Aid. 202 ; " Lord Ellenborough in Baikie ». Hart «. Frame, 6 CL & F. 193, 3 Jur. Chandless, 3 Camp. 17, 20 ; Evans ». 547. Watrons, 2 Port. 205 ; Pennington v. » Fell V. Brown, Peake, 96. Con- Yell, 6 Eng. 212. suit dida of Lord Manstield in Pitt v. 325 § 707 SORTS OP PERSONS AND COMBININGS. [BOOK IT. lack of reasonable carefulness and skill, proportioned to the character of the business which he undertakes.^ § 706. FideUty — is a duty due from every employee to his employer.2 And the confidential relationship of the practising lawyer to his client adds emphasis to the rule as between him and the client.^ He must not disclose a secret of his client * or without consent make known or avail himself of any fact or information coming to him through the relationship.^ He must acquire no gain to himself at the client's expense.® He must not accept retainers on both sides of a controversy.'' If he becomes herein a wrong-doer, he like others will be liable to a civil suit only when a legal injury has resulted from his unlawful act ; * but, when it has, his client may recover of him the damages, or have such other redress as the circumstances of the case indicate. § 707. Injuring Third Persons. — As the lawyer is not pro- tected in committing a crime even in the service of his client,^ so he is not in inflicting a civil wrong on an individual.^" Thus, while he may not be answerable for simply putting into an oflBcer's hands a void warrant of arrest, if he goes further and distinctly directs its execution, he must respond to the arrested person in damages.^ Or if, with the required knowl- edge and malice, he is a party with his client in a malicious 1 Hart V. Frame, 6 CI. & F. 193, 3 S. 2, 9 Bing. 1 ; Sleeper v. Abbott, 60 Jur. 547, 550 ; Cox v. Sullivan, 7 Ga. N. H. 162 ; Vogel v. Gruaz, 110 U. S. 144 ; O'Barr ». Alexander, 37 Ga. 195 ; 311 ; In re Halin, 11 Abb. N. C. 423. Holmes v. Peck, 1 R. I. 242 ; Wilson « TyiTell v. Bank of London, 10 H. V. Euss, 20 Maine, 421 ; Kiddle ».' L. Cas. 26, 8 Jur. N. s. 849 ; Simpson Poorman, 3 Pa. 224 ; Watson v. Muir- v. Lamb, 7 Ellis & B. 84 ; Lewis v. head, 7 Smith, Pa. 161 ; Godefroy v. Hillman, 3 H. L. Cas. 607 ; Gibbons Dalton, 6 Bing. 460, 468 ; Kemp v. v. Hoag, 95 111. 45 ; People v. Murphy, Burt, 4 B. & Ad. 424 ; Lanphier v. 119 111. 159 ; Luddy v. Peard, supra. Phipos, 8 Car. & P. 475 ; Sbilcock v. 7 Mason's Case, Freeman, 74. Passman, 7 Car. & P. 289. 8 Ante, § 22-34, 702 ; Harter v. 2 Bishop' Con. §1416. Morris, 18 Ohio State, 492; Joy v. s Luddy v. Peard, 33 Ch. D. 500 ; Morgan, 35 Minn. 184 ; Read v. Pat- Baylis v. Watkins, 2 DeG. J. & S. 91, terson, 11 Lea, 430. 10 Jur. N. s. 114 ; Foy u. Cooper, 2 '1 Bishop Crim. Law, § 895. Q. B. 937, 939. w Naltner v. Dolan, 108 Ind. 500. * Com. Dig. Action upon the Case " Green v. Elgie, 5 Q. B. 99, 114 ; for a Deceit, A, 5. Fischer v. Langbein, 103 N. Y. 84, * Johnson v, Marriott, 2 Cromp. & 89. M. 183 ; Grissell v. Peto, 2 Moore & 326 CHAP. XXXIV.] PERSONS ASSUMING SPECIAL SKILL. § 708 prosecution, or if with full knowledge lie submits in such a case to carry out his client's malice,^ he is responsible to the person prosecuted.^ A simple transmitting of a client's direc- tions to an officer, as to what property to take on a writ, will not render the attorney liable to a person not the defendant, claiming it;^ but, where the facts are fully known to the attorney, and he deliberately directs the taking of such prop- erty and refuses to relinquish it, he is personally responsible with the client.* Neither he nor the client can be required to pay damages for what an officer does mimoved, not within the command of the precept.* Nor yet is he liable if, after innocently and without malice prosecuting an action against a person of a particular name, and taking out execution on the judgment, it appears that another person of the same name had been levied upon, on the assumption of his being the defendant.® III. Physicians and Surgeons. § 708. In England, — the professions of medicine and sur- gery were formerly quite distinct. Both have been from early times' and still are much regulated by statutes. They are now more nearly or substantially one. Until 1858, when the " Medical Act " of 21 & 22 Vict. c. 90 was passed, the practi- tioner of medicine, like the barrister,' was not entitled to re- cover his fees by suit, his calling being deemed honorary.* But that statute changed the law, and he can now compel payment for services, as in the United States.^ A surgeon not disqualified by want of license was always in England, as with us, entitled like any other employee to demand com- pensation for his work.i*' A physician, criminally guilty of 1 Peck V. Chouteau, 91 Mo. 138. » Chorley ». Bolcot, 4 T. K. 317. 2 Staley v. Turner, 21 Mo. Ap. 244 ; But in 1842, the Court of Queen's Bench Bumap V. Marsh, 13 111. 535. decided that he might recover for ser- » Dawson v. Buford, 70 Iowa, 127. vices rendered, by proving an actual, ex- * Cook V. Hopper, 23 Mich. 511. press promise to pay for them. Veitch 6 Adams v. Freeman, 9 Johns. 117 ; ». Russell, 3 Q. B. 928. Averill v. Williams, 1 Denio, 501. » Gibbon v. Budd, 2 H. & C. 92, 9 8 Davies v. Jenkins, 11 M. & W. Jnr. N. s. 525. 745. 10 Elliot V. Clayton, 16 Q. B. 581 ; 1 Ante, § 704. Gremaire v. Le Clero Bois Yalon, 2 327 § 710 SORTS OP PEESONS AND COMBININGS. [BOOK IV. malpractice, was under the old law indictable.^ Probably, within the rule applicable to bamsters,^ he was not liable civilly for the consequences of simple negligence or want of skill; hence the English reports furnish us no precedents on our present subject, as to licensed physicians. To proceed now with the law as in later years understood equally in Eng- land and the United States, — § 709. Diploma or not — Holding out. — A practitioner of medicine or surgery assumes the learning and skill which he holds himself out as possessing ; and, in an action for mal- practice, it is neither, on the one hand, a defence for him that he has taken up the practice without a diploma ; ^ nor, on the other hand, is a diploma a protection against inquiry as to his qualifications in the particular instance.* . And — § 710. Assuming what Skill — Care. — One who, in general terms, holds himself out as a physician or surgeon, assumes, and is liable for the non-exercise of, the learning and skill common to practitioners of his class or school (not attain- ments or ability of the highest order) ; so that, for an injury to a patient through a default herein, or through a want of ordinary care and attention, an action will lie against him.^ If, instead of professing the practice of medicine according to its more common forms, he is a botanic physician, he is re- quired still to exercise the ordinary care,® yet the skill and Camp. 144, as to which see 2 M. & W. v. Pierpont, 3 Fost. & F. 35 ; Eitchey 169 ; Little v. Oldaker, Car. & M. 370 ; v. West, 23 111. 385 ; Quinn v. Higgins, D'Allex e. Jones, 2 Jur. n. s. 979 ; 63 Wis. 664 ; Goodwin v. Hersom, 65 Cooper K. Phillips, 4 Car. & P. 581. Maine, 223 ; Lanphier v. Phipos, 8 Car. ^ Greonvelt's Case, 1 Ld. Raym. 213; &P. 475; Landon u. Humphrey, 9Conn. Eex V. Long, 4 Car. & P. 423. 209 ; McNevins v. Lowe, 40 111. 209 ; 2 Ante, ■•§ 704. Howard v. Grover, 28 Maine, 97 ; Pat- * Euddodk ti. Lowe, 4 Fost. & F. ten ». Wiggin, 51 Maine, 594 ; Leigh- 519 ; Jones v. Fay, 4 Fost. & F. 525 ; ton v. Sargent, 7 Fost. N. H. 460 ; Wood t). Clapp, 4 Sneed, 65 ; Long v. Craig v. Chamhers, 17 Ohio State, 253 ; Morrison, 14Ind. 595 ; Musser*. Chase, McCandless v. McWha, 10 Harris, Pa. 29 Ohio State, 677. . 261 ; Graham b. Gautier, 21 Texas, 111; * It is the constant practice, in every Simonds v. Henry, 39 Maine, 155 ; West case, to look heyond the diploma into v. Martin, 31 Mo. 375 ; Slater v. Baker, the qualifications ; and no particular in- 2 Wils. 359 ; Seare v. Prentice, 8 East, stance need he cited. 348. ' Hallam «. Means, 82 111. 379 ; « Bishop Con. § 1416. Gramm v. Boener, 56 Ind. 497 ; Eich 828 CHAP. XXXIV.] PERSONS ASSUMING SPECIAL SKILL. § 712 methods need conform only to the botanic system.^ Or, if one goes to an apothecary, not professing medical knowledge, and receives an honest prescription, he cannot complain though it should not accord ■«'ith medical science.^ § 711. Conflicting Medical Opinions. — While surgery has become a science, medicine has scarcely attained the dignity of an art. Not only have we differing schools of medicine, the methods of each of which are to the others quackery, but in the standard schools, to quote the words of a learned judge, " med- ical science has not yet arrived at that degree of perfection which will enable its practitioners to agree. There is scarcely a case tried where medical testimony is used,, in which the doctors do not disagree. The swearing is sometimes so bit- terly antagonistic as to make it painful to listen to." * The excuse for which is, that, since the make-up and workings of the physical systems of men dijBfer,.and diseases vary there- with, and since no one can view with his eyes the internal structure of another or truly discern the effect of a medicine on it or on a disease, — since, therefore, a remedy wliich seema effectual with one person having a disease of a particular name proves ineffectual or injurious with another person to whose disease the same name has been given, — there can be no foundation for an opinion on a medical question. Men will differ as to how far this excuse is valid. But the misfor- tune, which has attended man in every age, not quite except- ing the present, is, that the more baseless an opinion, the more readily and firmly will the mass adopt and cling to it. They will fight for what they cannot know, and make the present life a hell to enforce their speculations over the future. Now, — § 712. Evidence — Caution. — To establish the contention that a particular treatment proceeded from ignorance or neg- ligence, it is the usage of the courts to receive the expert tes- 1 Bowman v. Woods, 1 Greene, Iowa, this case with Lipscombe v. Holmes, 2 HI. Camp. 441. 2 Kannen v. McMullen, Peake, 59, » Walton, J. in Seavey v. Preble, 64 a case from which the proposition of Maine, 120, 122. the text results inferentially. Compare 329 § 716 SORTS OF PERSONS AND COMBININGS. [BOOK IT. timony of physicians.^ Thereupon, if the question is one upon which physicians of ordinary capacity and learning differ, and the defendant treated the case in controversy honestly and carefully, he ought not to be required to pay damages simply because a majority of the witnfesses, against the opinion of a minority however small, deem the treatment to have been mistaken. Tlie sick person employed the medical man he chose ; so that, in a matter of difference of medical opinion, . the case is analogous to his choosing a physician from a school not in the majority. § 713. Physician's Heputation. — Like a medical degree,^ the good reputation of a physician is not a protection against a charge of malpractice.^ § 714. Contributory Negligence. — To t^e action for the physician's negligence, the patient's contributory negligence * is a bar.^ An illustration of which is the refusal to obey instructions.® § 715. Contributing Cause. — Within a principle explained in a preceding chapter,'^ it is no answer to a suit for malprac- tice that other causes than the defendant's wrong contributed to the plaintiff's sufferings.^ IV. Apothecaries. § 716. General. — One who practises as apothecary or drug- gist,^ whether under a license or not, holds himself out as 1 Mertz V. Detweiler, 8 Watts & S. ' Beginning ante, § 517. 376 ; Wright v. Hardy, 22 Wis. 348 ; « Gates v. Fleischer, 67 Wis. 504, Twombly v. Leach, 11 Gush. 397 ; cited ante, § 518. Mosely v. Wilkinson, 14 Ala. 812. » "The practising as an apothecary ^ Ante, § 709. is the mixing up and preparing of medi- ' Holtzman v. Hoy, 118 111. 534, 19 oines prescribed by a physician or other Bradw. 459. And see Vauhooser v. medical practitioner, who prescribes ; Berghoff, 90 Mo. 487 ; Leightou v. Sar- or, the mixing up and preparing of gent, 7 Fost. N. H. 460, 11 Fost. N. H. medicines prescribed by the party him- 119 ; Holmes v. Halde, 74 Maine, 28. self." Williams, J. in Woodward b. * Ante, § 458-476. Ball, 6 Car. & P. 677. The selling of 5 Gramm v. Boener, 56 Ind. 497 ; medicines, without a formal prescrip- Hibbard w. Thompson, 109 Mass. 286. tion, is a common duty of apothecaries ^ Geiselman v. Scott, 25 Ohio State, with us. 86 ; Jones v. Angell, 95 Ind. 876. 330 CHAP. XXXIV.J PERSONS ASSUMING SPECIAL SKILL. § 717 competent to'do this, yet not to prescribe as a physician ; and, for any lack of capacity, or for negligence, he is answerable in damages to the person injured, the same principles of law applying to him as to a medical practitioner. The doctrine being thus plain, it is unnecessary to particularize further .^ § 717. The Doctrine of this Chapter restated. It is a wrong for one to usurp a calling requiring special qualifications which he does not possess, or in any other way to hold out false prfetences to the public. To render this wrong actionable, some person must have suffered an injury therefrom. And he who has suffered such an injury, whether consequent on having contracted with the wrong-doer or not, may recover of him the damages. Moreover, a person thus holding himself out as of some special calling, whether com- petent therein or not, and conducting it negligently, fraudu- lently, or otherwise harmfully, must pay the damages to any other person whom he injures. Attorneys-at-law, physicians, and apothecaries furnish the more common illustrations of the principle, but it extends equally to other persons within the same reasons. 1 Hansford v. Payne, 11 Bush, 380 ; Ray v. Burbank, 61 Ga. 505 ; MoCub- Beckwith v. Oatman, 43 Hun, 265 ; bin v. Hastings, 27 La. An. 713 ; Fleet V. HoUenkemp, 13 B. Monr. 219 ; Gwynn v. Duffield, 66 Iowa, 708 ; Wal- Thomas v. Winchester, 2 Selden, 397 ; ton v. Booth, 34 La. An. 913 ; Physi- Davidson v. 'Nichols, 11 Allen, 514 ; cians College v. Bose, 6 Mod. 44. 331 § 720 SORTS OP PERSONS AND COMBININGS. [BOOK IV. CHAPTER XXXV. CORPORATIONS. § 718. Introduction. 719-734. General Doctrine. 735-737. Business Corporations. 738-765. Municipal Corpomtions. 766-768. Other Corporations. 769. Doctrine of Chapter restated. § 718. How Chapter divided. — We shall consider, I. The General Doctrine ; II. Business Corporations ; III. Munici- pal Corporations ; IV. Other Corporations. I. The General Doctrine. § 719. Nature of Corporation. — As man is a creation of nature, so a corporation is a creation of the law ; and, in the legal system, the rights^ powers, and liabilities of the corpora- tion are, as far as they exist, identical with those of the man. But the sphere of .every corporation is limited by the terms and implications of its charter ; and, though the spheres dif- fer, each is narrower than man's ; so that wlmt the corpora- tion does beyond is ultra vires^ § 720. Manner of its Being. — In creating a corporation, the law does not vivify particles of dust and mould them into a body for its soul,^ as nature does in giving birth and growth ^ Bishop Con. § 559, 1003, 1005, to antagonize the often-quoted sentence . 1012 ; 1 Bishop Crim. Law, § 417 ; from Coke's Eeports, affirming that cor- Perrine i». Chesapeake, &c. Canal, 9 How. porations "cannot commit treason, nor U. S. 172 ; Dartmouth College v. Wood- be outlawed, nor excommunicate, for ward, 4 Wheat. 518, 636. (hey have iw sauls." Case of Sutton's * I think tliis expression will he un- Hospital, 10 Co. ] a, 32 b. derstood, though I do not intend by it 332 CHAP. XXXV.] COEPOEATIONS. § 721 to a man.- But it selects one or more individual men, and supplements their individual capacities and responsibilities with thet corporate capacity and responsibility ; that is, it makes the body of men the corporate body, and into this cor- porate body it puts the corporation, which thereupon dwells therein, as an individual man does in his human body.^ Now, — § 721. Manner of Acting — ^ Motives — Intent. — From this manner of a corporation's being, the nature and sources of its doings appear. Its purposes, its motives, its acts, are sim- ply, yet iuUy, the purposes, motives, acts, of the individual corporators and its agents, performing corporate functions within the corporate sphere. If an act, a motive, a purpose, is outside of the sphere of the corporation,! or if it is meant to be individual and not corporate, then it is the private act, motive, or purpose of the man or men entertaining. or exe- cuting it ; otherwise, it is the corporation's. There may be, not wholly outside of the corporate sphere, an act of a nature not possible to a corporation. Thus, in the ancient tenure by homage, the tenant in doing this service "shall," says Littleton, " be ungirt, and his head uncovered, and his lord shall sit, and the tenant shall kneel before him on both his knees, and hold his hands jointly together between the 1 This wilL appear upon an accurate, in it constituting the eorporate body.'' looking into almost any case wherein p. 283. . In a previous case, Mai-shall, the terms of the incorporating act and C. J. had described a corporation as an the steps under it are shown. Thus, in "artificial being, invisible, intangible, Frost V. Frostburg Coal Co. 24 How. and existing only in contemplation oi U. S. 278, the statute provided that law." Dartmouth College v. Woodward, four persons, whose names are given, 4 Wheat. 518, 636. There is no con- and such other persons as may be"" as- flict in these dissimilar forms of expres- Bociated with them, " shall be and they sion. The law casts its ''invisible, are hereby incorporated and made a intangible" power upon the collective body politic and corporate, by the name natural bodies of the particular men, of," .&o. This act was held to have and so constitutes those bodies the cor- cast, by its own immediate force, cor- porate body ; and their collective minds porate capacity upon these four men, and souls, with all that pertains to in- while, of course, it did not take away dividual man, the corporate mind and their sevei'al individual capacities. In soul. So that the corporation, within the words .of Nelson, J. speaking for the its sphere, can, not only do human acts, whole court, they "were made a corpo- but be impelled thereto by human mo- ration by the charter, the persons named tives and passions. 333 § 722 SORTS OF PERSONS AND COMBININGS. [BOOK IV. hands of his lord, and shall say thus : ' I become your man from this day forward of life and limb, and of earthly worship, and unto you shall be true and faithful, and bear to you faith for the tenements that I claim to hold of you, saving the faith that I owe unto our sovereign lord the king.' And then the lord so sitting shall kiss him." ^ Plainly it is impossible that the lord and a " corporation aggregate of many persons," as Coke expresses it, should execute together these formalities, but the lord and a corporation sole could do it. Therefore it became the law that a corporation aggregate, holding lands in homage, was not required to do homage, but a corporation sole was.2 Possibly there may be an intent or a motive not competent for a corporation ; but certainly the power of pur- pose is as great in the corporation as the power of perform- ance. Still, — § 722. Misapprehensions. — Plain as this matter thus ap- pears, it has not always lain quite so in the professional mind. For example, that standard old book Comyns's Digest, re- ferring to the place in Coke just cited, puts the doctrine thus : "A corporation cannot do a personal act, which requires knowledge ; as, homage, or fealty." ^ We have just seen that the book to which the author refers for this teaches a very different doctrine. Lord Holt, one of the most able and clear- headed of the early English judges, if correctly reported, said : " A corporation is not indictable, but the particular members of it are." * Yet, though nothing is punishable as crime which does not proceed from an evil mind, the liability of corpora- tions to indictment in proper cases is absolutely settled in 1 Lit. § 85. * Anonymous, 12 Mod. 559. And 2 Co. Lit. 66 b, 67 a. see The State v. Great Works Mil. &c. ' Com. Dig. Franchises, F. 14. In Co. 20 Maine, 41 ; Commonwealth v. the Case of Sutton's Hospital, 10 Co. 1 a, Swift Run Gap Tump. 2 Va. Cas. 362. 82 i, it is said that " a corporation ag- Even that consummate master of the gregate of many cannot do fealty, for common law, Kent, says that a corpo- an invisible body can neither be in per- ration "cannot be considered as a moral son nor swear." I should say that the agent, and, therefore, it cannot commit body of a corporation is visible enough, a crime, or become the .subject of pun- and that it cau "be in person ; " yet ishment." 2 Kent Com. 279. that a corporation aggregate cannot swear, but a corporation sole can. 834 CHAP. XXXV.] COEPOEATIONS. § 723 law, and in the every-day practice of the courts, both in Eng- land and our own country.^ And still, all along the path df light, in both countries, we meet with protests from the dark. So late as the year 1886, in the English House of Lords, that very eminent and strong judge. Lord Bramwell, in a case which went off without deciding the question, said : " I am of opinion that no action for a malicious prosecution will lie against a corporation. I take this opportunity of saying that as directly and peremptorily as I possibly can ; and I think the reasoning is demonstrative. To maintain an action for a malicious prosecution it must ,be shown that there was an absence of reasonable and probable cause, and that there was malice or some indirect and illegitimate motive in the prosecutor. A corporation is incapable of malice or of motive." ^ And he proceeded through four pages to " demonstrate " this propo- sition, upon a basis which he assumed without undertaking to establish it ; namely, " because it is impossible that a corpo- ration can have malice or motive," and any acting of its directors from malice or motive would be ultra vires. He did not deny the corporate power to do acts, and even to become responsible for evil ones, provided they do not proceed from " malice or motive." The " missing link " in the demonstra- tion was in not even attempting to show how men, who from their mental structure are incapable of performing any act except from some motive, either good or evil, can put forth corporate acts without motive; or how, if they have a mo- tive for a corporate act, it is thereby rendered ultra vires. Hence, — § 723. Torts. — Though the doing of rightful acts is the end for which the law has established corporations, the same as it is the end for which God created man, yet the power to do right carries with it the power to do wrong. Therefore, of necessity, a corporation has, within its circumscribed sphere, the same capacity to purpose and do evil as to intend and do good. So that, by judicial opinions nearly unanimous, the liabilities of corporations for torts are as broad as their several 1 1 Bishop Crim. Law, § 417-424. 2 Abrath v. North Eastern By. 11 Ap. Cas. 247, 250, 251. 335 § 728 SORTS OF PERSONS AND COMBININGS. [BOOK IV. franchises ; namely, each can commit any tort, whether re- tjuiring an eyil motive or not, which a man, acting within the same limited sphere, could do.^ Illustrations are — § 724. Negligence. — It is constant practice to sue and re- cover damages of corporations for injuries inflicted through negligence in the carrying on of their business. And their liabilities are always — with some exceptions as to municipal corporations, to be considered in a subsequent sub-title — adjudged to be the same as those of individuals in like circum- stances.^ Even — § 726. 'Wilful — Trespass — Assault and Battery. — The wil- ful injuries of a corporation, such as assault and battery, false imprisonment, and other trespasses to person and property, committed by its servants within its sphere and the line of their duties, will subject it to an action, the same as similar acts would an individual.' And where an act of this nature would be lawful in an individual, it will be lawful in the corporation.* § 726. Forcible Entry. — The statutes of forcible entry and detainer extend the same to corporations as to individuals, with all their consequences.^ § 727. Trover — lies against a corporation.® § 728. Libel. — ^ Corporations have often occasion to malce 1 Denver, &o. Ey. v. Harris, 122 Manchester, 1 H. & N. 59, 2 H. & N. IT. S. 597, 607, 608 ; Goodloe v. Gin- 204, 3 Jur. N. s. 590. ciunati, 4 Ohio, 500, 514 ; Alexander v. * Terre Haute, &c. Eld. v. Jackson, Belfe, 74 Mo. 495 ; Iron Mountain, &o, 81 Ind. 19 ; Moore v. Fitchburg Kid. i Eld. .;. Johnson, 119 U. S. 608 ; Detroit Gray, 465 ; Brokaw v. New Jersey Eld. Dally Post v. McArthur, 16 Mich. 447 ; &c. Co. 3 Vroom, 328 ; Jeffersonville Green v. London Gen. Om. Co. 7 C. B. Eld. u. Eogers, 38 Ind. 116 ; Maund v. N. 8. 290, 6 Jur. N. s. 228 ; Stiles v. M,onraouthshire Canal, 4 Man. & G. 452, Cardiff Steam Nav. C!o. 10 Jur. N. s. 6 Jur. 932 ; Eastern Counties Ey. v. 1199 J Indianapolis, &e. Ey. v. Anthony, Broom, 6 Exch. 314 ; Goff v. Great 43 Ind. 183. Northern Ey. 3 Ellis & E. 672 ; Eoe v. 2 St. Eomes v. Levee Steam Cotton Biitenhead, &c. Ey. 7 Exch. 36. Press, 127 U. S. 614 ; Fowle v. Alex- * Landrigan v. The State, 31 Ark. andria, 3 Cranch C. C. 70 ; Lacour 50 ; Hill v. Chieftgo, &c. Eld. 38 La. V. New York, 3 Duer, 406 ; McAr- An. 599. thur V. Green Bay, &c. Canal, 34 Wis. ' Iron Mountain, &b. Eld. v. John- 139 ; Wilson v. Wheeling, 19 W. Va. son, 119 U. S. 608. 323 ; Eiddle v. Proprietors of Locks, 7 ' Yarhorough v. Bank of England, Mass. 169 ; Smith v. Birmingham, &c. 16 East, 6 ; Giles «. Taff Vale Ey. 2 Gas-light Co. 1 A & E. 526 ; Scott v. Ellis & B. 822 ; Beach v. Fulton Bank, 7 Cow. 485. 336 CHAP, XXXV.J CORPORATIONS. §731 statements to the public, and it is uniformly held that they are answerable for any libel therein, and for their libels generally.^ In like manner, a corporation libelled may have its suit, the same as an individual.^ § 729. Nuisance — is another tort for which corporations may be prosecuted with the same effect as individuals.* § 730. Fraud. — A corporation, like an individual, may com- mit a fraud, and it is responsible in the same manner.* § 731. Malicious Prosecution. — Corporations, like indi- viduals, have occasion to bring civil suits, and to set on foot criminal ones. Yet in a few instances it has been held that they can never be made liable for a malicious prosecution ; it being assumed that they are incapable of malice, which, how- ever it may exist in their officers and agents, is to them ultra vires? On the other side, the nearly unanimous doctrine is, that the malice of those by whose will and volition a corpora- tion thus acts, is its malice, and it must answer therefor.® 1 Philadelphia, &o. Rid. o. Qnigley, 21 How. U. S. 202 ; Howe Machine Co. V. Soader, 58 Ga. 64 ; Evening Journal Assoc. V. McDermott, 15 Vroom, 430 ; Maynard v. Fireman's Fund Ins. Co. 84 Cal. 48 ; Whitfield o. South Eastern Ey. Ellis, B. & E. 115 ; Vinas v. Mer- chants Mut. Ins. Co. 27 La. An. 367 ; Bacon '!;. Michigan Cent. Rid. 55 Mich. 224. ^ Metropolitan Saloon Om. Co. v. Hawkins, 4 H. & N. 87, 5 Jur. N. s. 226 ; Buffalo Lubr. OU Co. v. Standard Oil Co. 42 Hun, 153 ; Hahnemannian, &c. Ins. Co. V. Beebe, 48 111. 87 ; Knick- erbocker Life Ins. Co. v. Ecclesine, 6 Abb. Pr. N. s. 9. 8 Terre Haute Gas Co. v. Teel, 20 Ind. 131 ; Baltimore, &c. Rid. v. Fifth Bap. Ch. 108 0. S. 317 ; Miller v. New York, 109 U. S. 385. ^ Ranger v. Great Western Ry. 5 H. L. Cas. 72 ; Lawson v. Bank of Lon- don, 18 C. B. 84, 2 Jur. n. s. 716 ; At- lantic Mut. Fire Ins. Co. v. Goodall, 9 Fost. N. H. 182 ; Keller v. Equitable Fire Ins. Co. 28 Ind. 170 ; Barwick «. English Joint Stock Bank, Law Rep. 2 22 Ex. 259 ; Lord, J. in Reed v. Home Savings Bank, 130 Mass. 443, 445 ; Peebles v. Patapsco Guano Co. 77 N. C. 233. ^ Ante, § 722 ; Alderson, B. in Ste- vens V. Midland Counties By. 10 Exch, 352 (not followed in Edwards o. Mid- land Ry. 6 Q. B. D. 287) ; Owsley v. Montgomery, &c. Rid. 37 Ala. 560 (overruled in Jordan v. Alabama Great So. Rid. 74 Ala. 85) ; Childs v. Bank of Missouri, 17 Mo. 213. In the later Missouri case of Gillett v. Missouri Val- ley Rid. 55 Mo. 315, it was held that a railroad corporation is not answerable for the malicious prosecution of one of its officers for crime, because criminal prosecutions were by the court deemed not to be within its sphere. Evans- ville, &c. Rid. v. McKee, 99 Ind. 519, is contrary to this. In the still later Missouri case of Boogher v. Life Assoc, of Am. 75 Mo. 319, followed by others, the liability of corporations for mali- cious prosecution is affirmed. « Edwards v. Midland Ry. supra ; Jordan v. Alabama Great So. Rid. supra ; Vance v. Erie Ry. 3 Vroom, 837 § 733 SORTS OF PERSONS AND COMBININGS. [BOOK IV. § 732. Seduction. — Plainly not every sort of seduction would be within the sphere of a corporation. But for one that is — as, the hiring away of a minor child against the will of the father — the corporation is liable ; or, in the case just supposed, it may be sued by the father ^ for the child's services.^ § 733. Ultra Vires. — The foregoing expositions assume that a corporation is not responsible for what its officers and agents do outside of the corporate sphere. And in a general way this is true.* But in whatever matter a corporation has the power to act, if it proceeds wrongfully * it is chargeable with the resulting mischief. And, beyond this, there is a difference between what a particular agent does in excess of the charter authority, and the corporation's extending its functions beyond the law's interpretation of them. When it does the latter, and on the forbidden ground incurs liabilities, it is estopped, in a suit to enforce them, to deny the corporate power.^ So that it may be held to answer for wrongs which it commits outside of its true sphere.® Thus, if a city author- ized to build a particular sort of road builds a different one instead, it is liable to a traveller for injuries suffered through a defect in the one it has constructed.'^ And if a steam railroad runs street horse cars extra its powers, it must pay the dam- ages to a person injured through their mismanagement.* 334 ; Reed v. Home Savings Bank, 130 534 ; Weckler v. First National Bank, Mass. 443.; Pennsylvania Co. v. Wed- 42 Md. 581 ; Lemon v. Newton, 134 die, 100 Ind. 138 ; Morton v. Metro- Mass. 476 ; Pierce v. Tripp, 13 R. I. politan Life Ins. Co. 34 Hun, 366 ; 181. Newark Coal Co. a. Upson, 40 Ohio * Ante, § 723. State, 17 ; Boogher r. Life Assoc, of s Bishop Con. § 286, 304, 310, 1023, Am. supra ; Evansville, &c. Rid. v. Mc- compared ; Salt Lake City v. HolUster, Kee, supra ; Wheeler, &c. Manuf..Co. v. 118 U. S. 256. Boyce, 36 Kan. 350 ; Iron Mountain ^ Alexander i'. Belfe, 74 Mo. 495 ; Bank v. Mercantile Bank, 4 Mo. Ap. Philadelphia, &c. Eld. ■». Quigley, 21 505 ; Woodward v. St. Louis, &c. Ry. How. U. S. 202. 85 Mo. 142 ; Wheless v. Second Nat. ' Pekin v. Newell, 26 111. 320. Bank, 1 Baxter, 469. 8 New York, &e. Ry. v. Haring, 18 1 Ante, § 374. Vroom, 137, Beasley, C. J. obsei-ving: 2 Grand Rapids, &c. Rid. v. Showers, " The doctrine of ultra vires does not 71 Ind. 451. apply to torts of this nature. It would ' Bishop Con. § 1012 ; Ponlton v. indeed be an anomalous result in legal London, &c. By. Law Rep. 2 Q. B. science if a corporation should be per- 338 CHAP. XXXV.] CORPORATIONS. § 737 § 734. Exemplary Damages. — It results from the fore- going views, that, in whatever circumstances an individual tort-feasor would be liable for exemplary damages, a corpo- ration will be so alsoji — & rule perhaps not extending to municipal corporations.^ II. Business Corporations. § 735. Doctrines Applicable. — The doctrines of the sub-title just closed are emphatically applicable to business corpora- tions ; such as those^ for manufacturing, mining, trading, the running of railroads, and the like. As to them, — § 736. The Rule — is, that, with no exceptions requiring mention, they have within their respective spheres the same rights, and are subject to the same responsibilities for their wrongs, as natural persons.^ Thus, in respect to the same subject matter, railroads and private individuals are required to exercise the same care in preventing injuries to others.* And — § 737. Notice — to the proper oJSicer of a corporation is notice to the corporation.^ mitted to set up that, inasmuch as a ^ Wheeler, &c. Manuf. Co. v. Boyee, branch of the business prosecuted by it 36 Kan. 350 ; Lake Shore, &o. Ey. v. was wrongful, therefore all the special Rosenzweig, 3 Am. Pa. 519 ; Hays o. wrongs done to individuals in the course Houston, &c. Kid. 46 Texas, 272 ; At- of it were remediless. But in such sit- lantic, &c. Ry. v. Dunn, 19 Ohio State, nations corporate .bodies, like individu- 162 ; Pittsburg, &c. Eld. v. Slusser, 19 als, cannot take advantage of their own Ohio State, 157. wrong by way of defence. If corpora- ^ Chicago v. Martin, 49 111. 241. tions are not to be held responsible for * Chicago, &c. Rid. v. Gasaway, 71 injuries to persons done in the trans- 111. 570 ; Knell v. United States and action of a series of wrongful acts, such Brazil Steams. Co. 33 N. Y. Sup. an immunity would have a wide scope. 423. All wrongs done by such bodies are, in * Ohio, &c. Eld. v. Shanefelt, 47 111. a sense, ultra vires, and if the want of 497 ; French v. Buffalo, &c. Eld. 2 a franchise to do the tortious act be a Abb. Ap. 196. defence, then corporations have a dis- ' Baltimore, &c. Eld. v. McKenzie, pensation from liability for these acts 81 Va. 71 ; Stiles ». Cardiff Steam Nav. peculiar to themselves." p. 138. But Co. 10 Jur. N. s. 1199. see Horn v. Baltimore, 30 Md. 218. 339 § 739 SORTS OP PERSONS AND COMBININGS. [BOOK IV. III. Mvfliicipal Corporations. § 738. DistinguiBhed from others. — The special features of a municipal corporation are two. One is that, instead of the corporate body ^ being composed of persons selected from the community at large, they are the fluctuating and changing inhabitants '^ of a particular locality ; commonly a city, but it may be a village, a township, or a county. The other is, that its leading function is governmental ; consisting of legislative, of quant legislative, and largely of administrative and execu- tive powers. At the same time, it may be, and incidentally it in most instances is, the owner and manager of property. Its invisible part — usually spoken of as constituting the whole of a corporation, and being in justness of language as truly the whole of it as the invisible man is the whole of him, while his body is only valueless dust — differs from that of other corporations simply as to its objects and methods. Hence, — § 739. Defined. — A municipal corporation is an authoriza- tion cast by law upon the inhabitants of a specified locality to exercise in things local, subordinately to the State jurisdic- tion, particular limited powers of self-government, legislative, supervisory, or directive, and often or commonly judicial ; added to which, it may have collaterally any other corporate functions deemed by the creator of it desirable.^ 1 Ante, § 720. times called public corporations. Kent " Whether all or what part of such says they "are such as are created by inhabitants depends on the tei-ms of the the government for political purposes, charter or incorporating act ; usually, as counties, cities, towns, and villages ; with us, all, or all the legal voters, they are invested with subordinate le- But it is not essential to a municipal gislative powers, to be exercised for lo- corporation that all the Inhabitants cal purposes connected with the public should be corporators, or burgesses, good; and such powers are subject to Eex V. West Looe, 8 B. & C. 677, the control of the legislature of the or especially that resident foreigners State." 2 Kent Com. 275. Dillon ob- should be, Bodwic v. Fennell, 1 Wils. serves, that these corporations are " es- 233. Probably a charter will not be tablished by law to share in the civil construed to include infants as cor- government of the country, but chiefly porators, unless they are made such by to regulate and administer the local or specific words. Eex v. Carter, Cowp. internal affairs of the city, town, or dis- 220- triot which is incorporated." Dillon * Municipal corporations are some- Mun. Corp. 2d ed. § 9 6 He cites 340 CHAP. XSXV.J CORPORATIONS, § 743 § 740. How Sue. — Commonly a municipal corporation sues and is sued under the same forms of law as an indi- vidual.i Now, — § 741. Turther of Nature. — We have here an artificial being with functions selected, not from those of any one natural man,2 but from those of the private citizen, of the legislator, the judge, and the executive officer, and perhaps functions which have not exact counterparts in any unincorporate per- son. Moreover, this artificial creature of a statute varies with the differing terms of its charter, with its varying composite parts, and even in some measure with its surroundings. Again, the opinions of courts upon it, in cases apparently the same, differ. So that these corporations present to the investigator complications often not a little embarrassing. Hereupon — § 742. How these Elucidations. — The author, assuming the reader to be inquiring for the law of his own State, which may differ from that of every other, and conscious that a minute examination of the statutes and decisions of all the States would too much crowd this chapter, will, instead of attempt- ing the impossible, here set down, with illustrations, some leading principles which may guide his separate investigations through his own local law. Thus, — § 743. Summary. — Looking alike into the reasonings of the law and the specific adjudications, and following the latter where uniform, yet seeking aid from the former where the decisions differ, we find the doctrine to be, that, in things committed to the discretion of a municipal corporation, in- cluding its legislative, judicial, and governmental functions generally, it is never answerable to the individual for the ill consequences of its honest mistakes, or for ill conduct how- ever gross in matters strictly legislative or judicial.'' In its ex- ecutive and ministerial doings, as distinguished from the acts of oflScers clothed with independent powers, it is responsible among other places, People v. Morris, Fennell, 1 Wils. 233. See Eock Island 13 Wend. 325, 333, 334, and People v. v. Steele, 31 111. 543. Hurlbut, 24 Mich. 44. " Ante, § 719, 720. 1 Winslow 0. Perquimans, 64 N. C. ' Rivers v. Augusta, 65 Ga. 376 ; 218 ; Hamilton v. Carthage, 24 111. 22 ; Evansville v. Decker, 84 Ind. 325 ; Willis ■». Legris, 45 111. 289 j Bodwio v, Lafayette v. Timberlake, 88 Ind. 330. 341 §743 SOETS OP PERSONS AND COMBININGS. [bOOK IV. for its trespasses and other like wrongs to individuals and their rights, and for its negligence.^ For the misdoings and neglects of its agents, including those officers who act under its direct command as its agents,^ it is liable ; but not ^ for the ill conduct of independent officers, even though it ap- pointed them.* Some of the particulars are — 1 Kivers v. Augusta, supra ; Brown V. Atlanta, 66 Ga. 71. 2 Danbury, &c. Eld. ■». Norwalk, 37 Conn. 109 ; Champaign v. Patterson, 50 m. 61. * School District v. Williams, 38 Ark. 454 ; McElroy v. Albany, 6S 6a. 387 ; Waller v. Dubuque, 69 Iowa, 641. * The following are among the later cases, whether for or against the several propositions of the text. There are other cases, but those here cited will enable the reader to find most of them : — United Slates. — Weightman v. Wash- ington, 1 Black, 39 ; Chicago v. Eob- bins, 2 Black, 418 ; Nebraska City v. Campbell, 2 Black, 590 ; Barnes v. Dis- trict of Columbia, 91 tJ. S. 540; Trans- portation Co. V. Chicago, 99 U. S. 635 ; Louisiana v. New Orleans, 109 TJ. S. 285 ; Johnston v. District of Co- lumbia, 118 U. S. 19 ; Arn v. Kansas, 14 Fed. Rep. 236 ; Delger v. St. Paul, 14 Fed. Eep. 567 ; Trescott v. Water- loo, 26 Fed. Eep. 592 ; Johnston v. Dis- trict of Columbia, 1 Mackey, 427 ; Bannagan v. District of Columbia, 2 Mackey, 285 ; McGill v. District of Columbia, 4 Mackey, 70. Alabama. — Barbour v. Horn, 48 Ala. 649 ; Askew v. Hale, 54 Ala. 639 ; Selma v. Perkins, 68 Ala. 145 ; Grider v. Tally, 77 Ala. 422 ; Greene v. Eu- banks, 80 Ala. 204. Arkansas. — School District v. Wil- liams, 38 Ark. 454. California. — Tranter v. Sacramento, 61 Cal. 271 ; Lehn v. San Francisco, 66 Cal. 76. Connecticut. — Manchester v. Hart- ford, 30 Conn. 118 ; Danbury, &c. Eld. V. Norwalk, 37 Conn. 109 ; Eaymond 342 V. Fish, 51 Conn. 80 ; Clonghessey v. Waterbury, 51 Conn. 405 ; Brouson v. Wallingford, 54 Conn. 513. Dakota. — Larson v. Grand Forks, 3 Dak. 307. Delaware. — Magarity v. Wilming- ton, 5 Houst. 530. Florida. — Jacksonville v. Drew, 19 Fla. 106. Georgia. — Eome v. Omberg, 28 Ga. 46 ; Savannah u. Cullens, 38 Ga. 334 ; Parker v. Macon, 39 Ga. 725 ; Eome v. Dodd, 58 Ga. 238 ; McElroy v. Albany, 65 Ga. 387 ; Brown v. Atlanta, 66 Ga. 71 ; Savannah v. Spears, 66 Ga. 304 ; Savannah v. Cleary, 67 Ga. 153 ; Simon 0. Atlanta, 67 Ga. 618 ; Gaskins v. Atlanta, 73 Ga. 746 ; Butler v. Thomas- viUe, 74 Ga. 570 ; Atlanta ». Dooly, 74 Ga. 702 ; Smith v. Atlanta, 75 Ga. 110. Illinois. — Bloomington v. Bay, 42 111. 503 ; Chicago ti. Martin, 49 111. 241 ; Springfield v. Le Claire, 49 111. 476 ; Champaign v. Patterson, 50 lU. 61 ; Mechanicsburg v. Meredith, 54 111. 84 ; Quincy v. Jones, 76 111. 231 ; Schmidt v. Chicago, &c. Ey. 83 HI. 405 ; Chicago v. Murphy, 84 HI. 224 ; Wilcox V. Chicago, 107 111. 334 ; Chi- cago V. Keefe, 114 111. 222 j Joliet v. Conway, 119 111. 489. Indiana. —Indianapolis v. Huffer, 30 Ind. 235 ; Grove v. Fort Wayne, 45 Ind. 429 ; Centerville v. Woods, 57 Ind. 192 ; Weis v. Madison, 75 Ind, 241 ; Huntington v. Breen, 77 Ind. 29 Yeager v. Tippecanoe, 81 Ind. 46 Evansville v. Decker, 84 Ind. 325 Evansville v. Wilter, 86 Ind. 414 Washington v. Small, 86 Ind. 462 Eobinson v. Evansville, 87 Ind. 334 Lafayette v. Timberlake, 88 Ind. 330 CHAP. XXZV.] CORPORATIONS. §T44 § 74:4. By-laws. — The direct legislative function of a mu- nicipal corporation consists of the making of by-laws, other- Madison V. Brown, 89 Ind. 48 ; North Vernon v. Voegler, 89 Ind. 77 ; Eozell V. Anderson, 91 Ind. 591 ; Turner v. Indianapolis, 96 Ind. 51 ; Aurora v. Bitner, 100 Ind. 396 ; Leeds vport, 60 N. H. 374 ; Vale Mills Bishop Cou. § 39, 40, 119, 184, essential in fact. Tims, in Nebraska 189, 204, iO,'), 275. City v. Campbell, 2 Black, 590, 592, ^ Ante, § 182. Nelson, J., speaking for the Supreme * It will be seen that some of the Court of the United States, said : "The authorities to this proposition are, in law is well settled in respect to public the forms of its judicial enunciation, in municipnl corporation.4: 475 ; Knox v. Montgomery, 109 Ind. 69 ; Howard v. Legg, 110 Ind. 479 ; Clark V. Epworth, 56 Iowa, 462 ; Beazan V. Mason City, 58 Iowa, 233 ; Cooper v. Mills, 69 Iowa, 360 ; Fuller v. Atlanta, 66 Ga. 80 ; Hutchinson v. Olympia, 2 Wash. 314 ; Noonan v. Stillwater, 33 Minn. 198 ; Kellogg ■». Janesville, 34 Minn. 132 ; Loewer v. Sedalia, 77 Mo. 431 ; Cai-rington v. St. Louis, 89 Mo. 208 ; Pomfrey «. Saratoga Springs, 104 N. Y. 459 ; McCalla v. Multnomah, 3 Oregon, 424 ; Manchester v. Hartford, 30 Conn. 318 ; Savannah v. CuUens, 38 Ga. 334 ; Browning v. Springfield, 17 111. 143; Blake v. St. Louis, '40 Mo. 569 ; Hutson v. New York, 5 Selden, 163 J Wendell v. Troy, 39 Barb. 329 j Clark II. Lockport, 49 Barb. 580 ; Erie City V. Schwingle, 10 Harris, Pa. 384 ; Knoxville v. Bell, 12 Lea, 157 ; Dewey V. Detroit, 15 Mich. 307 ; Green v. Harrison, 61 Iowa, 311. In preceding sections, I have perhaps said enough of the contrary authorities. But I will here add a summary of their result as stated by Mclver, J. in Young v. Charleston, 20 S. C. 116, 118: "The true theory upon which these cases rest is that a municipal corporation is a mere governmental agency established for public purposes, and stands upon a very different footing from that of pri- vate corporations organized for private gain, or for the special benefit of the corporators. As characterized by Mar- shall, C. J., in Fowle v. Alexandria, 3 Pet. 398, it is 'a legislative coi-poration established as a part of the government of the country ; ' and by Chancellor Harper, in White v. Charleston, 2 Hill, S. C. 571, 575, as 'the agent of the legislature for the purposes of govern- CHAP. XXXV.] COEPOEATIONS. § 762 So just is this principle that in most States wherein it is not held as of comjion law, it has been enacted by statutes.^ And — § 759. Sewers. — The same rule applies in our cities to the keeping of sewers in repair ; the duty being cast upon them, they are answerable to persons injured by its neglect.^ § 760. Agents, Officers, ^c. : — Elsewhere. — In the next chapter, we shall consider the rights and liabilities of official persons. § 761. Relation to Officers. — The mere fact that the power to appoint a particular officer is in a municipal corporation, whether conferred by a law of the State or by one of its own by-laws, does not make the officer its servant, or render it otherwise responsible for his doings.^ Thus, a policeman, whose functions are defined by the law, while his appointment is from the city, is not the city's agent, for whose assaults on third persons, and other wrongful acts in his office, it is answerable.* On this principle,' — § 762. Fire Department. — If, according to what is common in our States, the functions of the fire department are not directly controlled by the city, but it acts independently under the laws, the city, however it may have directed its organiza- tion and equipment, is not liable to persons injured by its neglects or other wrongs.^ Still, — ment' This distinction is fully recog- ^ Savannah v. Cleary, 67 Ga. 153 nized in Main v. North Eastern Rid. Fort Wayne v. Coombs, 107 Ind. 75 12 Rich, 82. A municipal corporation, Leeds v. Richmond, 102 Ind. 372 thus being a part of the government of Evansville v. Decker, 84 Ind. 325 the State, is not liable to a civil action Springfield v. Le Claire, 49 111. 476 by an individual for any damages which Kranz v. Baltimore, 64 Md. 491 ; Ki- he may sustain by reason of its failure bele v. Philadelphia, 9 Out. Pa. 41. to perform any of the public duties im- ' Fisher v. Boston, 104 Mass. 87 ; posed upon it, unless the legislature sees Hafford v. New Bedford, 16 Gray, 297 ; fit to provide by statute for such right Wheeler o. Cincinnati, 19 Ohio State, of action." 19 ; Manners v. Haverhill, 135 Mass. 1 Baker v. Dedhara, 16 Gray, 393 ; 165 ; Worley v. Columbia, 88 Mo. Pollard V. Wobum, 104 Mass. 84 ; 106. V. Dennis, 105 Mass. 310 ; Smith * Buttrick v. Lowell, 1 Allen, 172 ; V. Wakefield, 105 Mass. 473; Hill v. Bos- Pollock v. Louisville, 13 Bush, 221. ton, 122 Mass. 344 ; Post 1). Boston, 141 'Wheeler v. Cincinnati, 19 Ohio Mass. 189 ; Agnew v. Corunna, 55 Mich. State, 19 ; Fisher v. Boston, 104 Mass. 428; McKellar t). Detroit, 57 Mich. 168. 87; Tainter v. Worcester, 123 Mass. 355 § 766 SORTS OF PERSONS AND COMBININGS. [BOOK IV. § 763. Officers as Agents. — An oflScer, whether of the State or of the municipality, and however appointed or chosen,^ may be the latter's agent, either generally or in the particular in- stance, so that it will be responsible to third persons for his acts." But to be such, he must be under its control.^ And it is the rule that, — § 764. Municipality's Agents. — Whenever the agent of a municipality, being or not an officer also, performs in its name or service an act within the sphere of its liabilities, whether the particular doing was authorized or not, if he therein inflicts a wrong on an individual, the latter may have his action against the corporation, according to the principles * regulating the ordinary relation of master and servant in like cases.^ It is otherwise of an act not within the scope of the agent's or officer's authority.^ And — § 765. Ultra Vires. — Commonly, if the corporation author- izes its agent to do an act not within its power or jurisdiction, it is not liable,'^ — as to which, the ordinary doctrine is be- lieved to apply to municipal corporations, already explained.' IV. Other Corporations. § 766. In Nature of Municipal, — There are corporations in the nature of municipal ones, or quasi municipal, to which the 311 ; Greenwood v. TiOuisville, 13 Bush, N. Y. 15 ; Murtaugh v. St. Louis, 44 226 ; Burrill v. Augusta, 78 Maine, 118 ; Mo. 479 ; Peters v. Fergus Falls, 35 Grube v. St. Paul, 34 Minn. 402 ; Rob- Minn. 549 ; Stebbins v. Keene, 55 Mich, inson v. Evansville, 87 Ind. 334 ; Wil- 552 ; Snllivan v. Holyoke, 135 Mass. cox V. Chicago, 107 111. 334. 273; Deane v. Randolph, 132 Mass. 475; 1 Barnes v. District of Columbia, 91 Hawks v. Charlcmont, 107 Mass. 414; U. S. 540, 545, 546. Durkee v. Kenosha, 59 Wis. 123 ; Wal- ^ Waldron v. Haverhill, 143 Mass. dron v. Haverhill, 143 Mass. 582. 582 ; Kittredge o. Milwaukee, 26 Wis. « Liberty v. Hmd, 74 Maine, 101. 46 ; Durkee v. Kenosha, 59 Wis. 123 ; See Everson v. Syracuse, 100 N. Y. Mulcairns v. Janesville, 67 Wis. 24. 577. 8 Sinclair v. Baltimore, 59 Md. 592 ; ' Rowland v. Gallatin, 75 Mo. 134 ; Ham V. New York, 70 N. Y. 459. Wakefield v. Newport, 60 N. H. 374 ; But see Barnes v. District of Columbia, Pierce v. Tripp, 13 R. I. 181 ; Gibbes supra. ». Beaufort, 20 S. C. 213 ; Cavanagh v. * Ante, § 608-616. Boston, 139 Mass. 426. ' Mulcairns v. Janesville, 67 Wis. ' Ante, § 733. 24 ; Goodfellow v. New York, 100 356 CHAP. XXXV.] CORPORATIONS. § 768 doctrines of the last sub-title are not so widely applied as there explained. In the words of Hunt, J. speaking in the Su- preme Court of the United States, " a distinction is to be noted between the liability of a municipal corporation, made such by the acceptance of a village or city charter, and the involuntary quasi corporations known as counties, towns, school districts, and especially the townships of New England. The liability of the former is greater than that of the latter, even when invested with corporate capacity and the power of taxation." ^ This distinction appears in many of the cases ; ^ while, on the other hand, counties and towns, and perhaps school-districts and other like corporations, are in others brought within what in the last sub-title is explained as the better doctrine governing municipal corporations. On some of these questions, there are fundamental differences of judi- cial opinion, but many of the apparent discords arise from the dissimilar terms of the statutes.* Referring the reader to the collection of authorities in a preceding section,* the writer here dismisses this branch of the subject. § 767. others Quasi Public. — There is room for a consid- erable expansion of this subject. But the elucidations already given develop the fundamental principles and the methods- of I'easoning upon them. Therefore it is deemed best not fur- ther to prolong the discussion. § 768. Some Cases, — into which the reader who is thor- oughly investigating the subject may desire to look, are re- ferred to in the note.^ 1 Barnes v. District of Columbia, 91 148. But these authorities can have U. S. 540, 552. no relevancy to a township on which 2 For example, Altnow v. Sibley, 30 the statutes have cast this duty. And Minn. 186 ; Askew v. Hale, 54 Ala. see Chartiers v. Langdon, 4 Am. Pa. 639 ; Lane v. Woodbury, 58 Iowa, 462 ; 541 ; Parker v. Rutland, 56 Vt. 224. Finch V. Toledo, 30 Ohio State, 37. * Ante, § 743. ' Thus, a township in Indiana is ' Board of Health. — Kent v. not required to keep the highways in Worthing Local Board, 10 Q. B. D. repair, so is not liable to one injured 118 ; Gibson v. Preston, Law Sep. 5 through a want of repair. Yeager v. Q. B. 218 ; Biyant v. St. Paul, 33 Tippecanoe, 81 Ind. 46. And in Mich- Minn. 289 ; Lynde v. Rockland, 66 igan the statutes arid consequent decis- Maine, 309 ; Brown v. Murdoek, 140 ions are of a like sort as to bridges and Mass. 314 ; Spring v. Hyde Park, 137 culverts. Leoni v. Taylor, 20 Mich. Ma^s. 654 ; Raymond v. Fish, 61 Conn. 357 § 769 SORTS OP PERSONS AND COMBININGS. [BOOK IV. § 769. The Doctrine of this Chapter restated. A corporation is an artificial being, existing only in con- templation of law. The body of it consists of one or more real persons, and the law-created part is invisible. It has simply the powers and functions which its charter gives it. And as a general rule, to which possibly there are exceptions, its attributes are simply those of an unincorporate man ; yet not the whole of them, but such only as are required for the particular purpose. It does not die with the corporators, but their places are supplied by others. Municipal corporations, and quasi municipal, together with some which are constituted for benevolent purposes, have peculiarities growing out of their special natures. A municipal corporation is, among other things, a governing body, yet inferior to and controlled by the State. Out of its governmental powers and some incidentals connected with them, and out of those of quasi municipal cor- porations, have arisen a few nice juridical questions, a repeti- tion of the discussions whereof is not necessary here. They invite the special scrutiny of students, practising lawyers, and the courts. And no ground appears why harmony may not result from fresh investigations guided, not by inconsid- erate words of judges printed in the reports of their decisions, but by the reasonings of the law, if it is remembered that the law is a system of reason, which overrules and silences par- ticular discords. The liabilities need not be here repeated. They vary with the objects and powers of the corporation. 80. Gas Company. — Enssell v. Co- tnistees of. Walsh v. New York, &o. luiubia, 74 Mo. 480. House of Bef- Bridge, 96 N. Y. 427. Trustees of uge — for refonnation of convicts, &c. Public Road and the Iiike. — Harris Perry v. House of Refuge, 63 Md. 20. v. Baker, 4 M. & S. 27 ; HoUiday v. City Hospital. — Benton v. Boston City St. Leonard, 11 C. B. N. s. 192, 8 Hosp. 140 Mass. 13. Cemetery. — Jur. N. s. 79 ; Sutton v. Clarke, 6 Toledo V. Cone, 41 Ohio State, 149. Taunt. 29. Trinity House. — Gilbert New York and Brooklyn Bridge, — v. Trinity House, 17 Q. B. D. 795. 358 CHAP.' XXXVI. J OFFICIAL PERSONS. § 772 CHAPTER XXXVI. OFFICIAL PERSONS. § 770. Introduction. 771-774. In General. 775-778. Legislative. 779-784. Judicial. 785-790. Quasi Judicial. 791-797. Ministerial. 798. Doctrine of Chapter restated. § 770. How Chapter divided. — We shall consider this sub- ject as to, I. In General ; II. The Legislative Functions ; III. The Judicial Functions ; IV. Quasi Judicial ; V. The Ministerial Functions. I. In General. § 771. Protected. — Since no one is to suffer harm from following a command or permission of the law, whatever in- jury or loss he may bring to others,^ a public officer, while fully discharging the duties of his office, is exempt from both civil and criminal liability ; and persons thereby hardly dealt with, if without redress from those who moved the officer to action,^ must bear the evil uncompensated.^ Even — § 772. Reputation. — The officer's reputation is protected, under the law of slander and libel, from defamatory words, oral or written, published of him in his office.* Yet in a civil 1 Ante, §110, 111. V. Gibbs, 2 Des. 629; Stewart v. 2 As, for example, ante, § 218 et seq. Southard, 17 Ohio, 40^2 ; McConnell v. ' The authorities to this appear Dewey, 5 Neb. 385 ; Smith v. Stephaii, throughout the chapter. The reader 66 Md. 381 ; Kemp ». Neville, 10 C. B. can consult such; cases as Burton v. N. s. 523, 7 Jur. N. s. 913. Fulton, 13 Wright, Pa. 151 ; Fenwicke * Ante, § 270, 271, 278 ; Banner 359 & 777 SORTS OP PERSONS AND COMBININGS. rBQOK IV. action a plea of their truth is good in defence.^ And, in broader terms, — § 773. Outside of Duties. — If an officer steps outside of his official duties,^ — as, assumes a jurisdiction where the law gives him none,^ or acts negligently where carefulness is in- cumbent on him,* or proceeds contrary to the command of the statute which invests him with the authority,^ or does to another person any wrong not a necessary part of his official functions, — the mantle of office is not to him a coat of mail, and he must answer for his evil conduct, not always in a civil suit, but, to the party or the public or both, in such form as the law has provided. For, — § 774. Responsibility in Office. — Though in England it is a maxim that the incumbent of the throne can do no wrong,^ while yet his advisers may, we have no throne and no officers superior to the laws. All must answer for their misdeeds, yet not all are subject to the ordinary judicial proceedings. More in detail, — II. The Legislative Functions. § 775. Contempts. — In suitable cases, a legislative body may punish a member for a contempt, technically termed breach of privilege, as elsewhere explained.^ Or, — § 776. Expulsion. — In circumstances justifying, it may ex- pel a member.^ Yet, — § 777. Not answerable to Courts. — Because legislative func- tions are discretionary,^ and especially because the law-making Pub. Co. ■». The State, 16 Lea, 176 ; * Marshall v. Yoos, 20 Bradw. 608 ; Eoyce v. Maloney, 58 Vt. 437 ;,Proctor Brown v. Mui'dock, 140 Mass. 314. V. Wehster, 16 Q. B. D. 112. • 1 Bl. Com. 246 ; 4 lb. 33. 1 Davis V. Lyon, 91 N. C. 444. ' 2 Bishop Crim. Law, § 247, 249, 2 Ante, § 116 ; Hieks v. Dorn, 42 note ; Anderson v. Dunn, 6 Wheat. N. Y. 47. 204 ; Burdett v. Abbott, 14 East, 1 ; ' Marshalsea Case, 10 Co. 68 6; Thompson's Case, 8 Howell St. Tr. Griffith V. Frazier, 8 Cranch, 9 ; Wickes 1 ; Beaumont v. Barrett, 1 Moore P. C. V. Caulk, 5 Har. & J. 36, 42 ; CoUamer 69. V. Page, 85 Vt. 387 ; Watson v. Avery, « Story Const. § 837, 838 ; Cooley 2 Bush, 332; The State d. Dike, 20 Const. Lim. 133; Hiss «. Bartlett, 3 Minn. 363. Gray, 468. * Ante, § 115. » Ante, § 744-748. 360 CHAP. XXXVI.J OFFICIAL PERSONS. § 780 body should be independent of those who are to expound and enforce its enactments, no member of such body can be called to account by the judiciary for acts done in or in connection with the exercise of his legislative powers.^ Not even will a court, inquiring into the validity and effect of a statute, admit evidence, or suffer imputations, of ill conduct or evil motives in the makers.^ § 778. Impeachment — of a legislator is a cumbersome rem- edy to which there can be seldom any occasion to resort. Yet it is believed to be permissible on common-law principles, but not under all our constitutions.^ III. The Judicial Functions. § 779. General. — A judge is no less answerable to the law than the humblest person who appears before him to ask or submit to justice. But, as to what he does judicially, he is not to be called to account by his associates ; the remedy against him is — § 780. Impeachment. — Under the constitution of Massa- chusetts, " the governor, with consent of the council, may remove " any judicial officer " upon the address of both houses of the legislature." * At the same time, such an officer ap- pears to be liable, like others, to impeachment.^ This power of removal by address is said to exist also in some of the other States.^ And in all, whether it exists or not, it is believed that the judges of the higher courts and courts of record may be impeached for official misdemeanors.'^ It is the same with 1 1 Bishop Crim. Law, § 461, 462 ; * Const. Masa. pt. 2, c. 3, art. 1. Stookdale v. Hansard, 9 A. &. E. 1, « lb. pt. 2, § 2, art. 8. 110, 11-3, 114. « Field, J. in Randall v. Brigham, 7 2 Bishop Written Laws, § 38 ; Ex Wal. 523, 537, and Bradley v. Fisher, parte McCardle, 7 Wal. 506, 514; Wright 13 Wal. 335, 350. V. Defrees, 8 Ind. 298, 302 ; People v. ' Story Const. § 800, 804. Cooley, Draper, 15 N. Y. 532, 545, 555 ; Sun- Const. Lim. 160, note, states two cases, hury, &c. Eld. v. Cooper, 9 Casey, Pa. one in Rhode Island and the other in 278. Ohio, wherein judges were prosecuted * 1 Bishop Crim. Law, § 461 ; People hy impeachment for holding statutes V. Draper, 15 N. Y. 532, 555 ; Sey- void as unconstitutional. Both prose- monr's Case, 8 Howell St. Tr. 127. cutions failed. 361 § 782 SOBTS OF PERSONS AND COMBININGS. [BOOK IV. the Federal judges.^ There are generally other means of get- ting rid of corrupt police magistrates and justices of the peace. We need not inquire as to them. Leaving behind also questions of criminal liability, — § 781. CivU laabiiity. — No judicial person, whether a judge of a superior court, such as an equity tribunal,^ or common- law court of record,* or a mere justice of the peace or other inferior magistrate,* a member of a court-martial,® or a juror who is a part of the court,® is, for any judicial act within his jurisdiction, however erroneous, mistaken, or even corrupt, answerable in a civil suit to a party aggrieved. § 782. "Why ? — Various reasons have been given for this doctrine, any one of which would be alone sufficient. One is, that to allow the judges to be prosecuted in the courts would lead to the scandal and subversion of justice.^ Another is, that the fear of being sued would impair both the inde- pendence of the judge and his capacity to decide correctly ,8 and even vacate the judicial seat.® Another is that, in the words of Kent, •" judicial exercise of power is imposed upon the courts. They must decide and act according to their judg- 1 See, for example, Peck's Trial, by Southard, 74 ; Evans v. Foster, 1 N. H. Stansbury, Boston, 1833. 374 ; Bumham v. Stevens, 33 N. H. ' Yates V. Lansing, 5 Johns. 282, 9 247 ; Hamilton v. Williams, 26 Ala. Johns. 395. 527 ; Bailey u. Wiggins, 5 Harring. ' Randall v. Brigham, 7 Wal. 523 ; Del. 462 ; Pratt v. Gardner, 2 Gush. Bradley ». Fisher, 13 Wal. 335, and 63 ; Chickering v. Bobinsou, 3 Gush, cases cited in the next note. 543 ; Stone v. Graves, 8 Misso. 148 ; * 1 Bishop Crim. Law, § 462, 464 ; Holroyd ». Breare, 2 B. & Aid. 473 ; Ward V. Freeman, 2 Ir. Com. Law, Fawcett «. Fowlis, 7 B. & C. 394 ; 460 ; Fray v. Blackburn, 3 Best. &. S. Eemp v. Neville, 10 C. B. N. s. 523, 576 , Cooke v. Bangs, 31 Fed. Rep. 640 ; 7 Jur. N. s. 913. Bell V. McKinney, 63 Missis. 187 ; ' Vanderheyden ». Young, 11 Johns. Heard v. Harris, 68 Ala. 43 ; Bocoek 150, 160. V. Cochran, 32 Hun, 521 ; Johnston v. « 1 Bishop Crim. Law, § 462 ; Tur- Moorman, 80 Va. 131 ; McCall v. Co- pen v. Booth, 56 Cal. 65 ; Hunter v. hen, 16 S. C. 445, 449 ; Hamond v. Mathis, 40 Ind. 356. Howell, 2 Mod. 218 ; Grenville v. Col- ' Floyd v. Barker, 12 Co. 23, 25 ; lege of Physicians, 12 Mod. 386 ; Brodie Yates v. Lansing, 5 Johns. 282, 298. V. Rutledge, 2 Bay, 69 ; Ambler v. 8 Cooke «. Bangs, 31 Fed. Rep. 640 ; Church, 1 Root, 211 ; Young v. Herbert, Taaffe v. Downes, 3 Moore P. C. 36,' 2 Nott & McC. 172, note ; Tompkins « note ; Bradley v- Fisher, 13 WaL 335, Sands, 8 Wend. 462 ; Morrison v. Mc- 347 . Donald, 21 Maine, 650 ; Ely v. Thomp- » Phelps v. Sill, 1 Day, 316. son, 3 A. K. Mar. 70 ; Little v. Moore, 1 362 CHAP. XXXVI.] OFFICIAL PERSONS. § 783 ment, and, therefore, the law will protect them." ^ And to render the protection practically effectual, it must extend, beyond mere mistake, to the cliarge of corruption.^ A some- what different form of reasoning, leading to the same result, is that, when the law commits judicial work to the judges, it commands them to follow therein their own understandings, and it cannot complain of them should they arrive at a con- clusion different from its own, in other words, should they, while endeavoring to act rightly, err. In which view, they would not be liable unless their conduct was corrupt. And for corruption in a suit to one's oppression, the law's remedy is an action for malicious prosecution, it has no other. But an action of this sort would not lie against a judge ; because, as we saw in the chapter treating of it,^ the right of action arises only on an acquittal, — a termination for which the party could not complain of the judge. His complaint would be that judgment was rendered against him ; and, for this, the malicious prosecution suit can never be maintained; an ac- quittal bars it. There is a nice question as to — § 783. Jurisdiction. — Theoretically, a court acting outside of its jurisdiction is no court. Theoretically, too, and in some circumstances practically, a want of jurisdiction cannot be waived, and it may be taken advantage of at any time during the progress of a cause or after its termination.* The judg- ment is a nullity.* But not everything which it is common to speak of as a want of jurisdiction is within these rules.® If, for example, the court has authority to decide the particu- 1 Yates V. Lansing, supra, at p. 297. * Boynton i). Foster, 7 Met. 415 ; And see, at large, the lucid opinions of Attorney-General v. Hotham, 1 Turn. & Field, J. in Bradley v. Fisher, 13 Wal. R. 209, 219, 3 Russ. 415 ; Westerwelt v. 335, and Randall v. Brigham, 7 Wal. Lewis, 2 McLean, 511 ; Bryan v. Blythe, 523. 4 Blackf. 249 ; Smith v. Knowlton, 11 2 Floyd V. Barker, and other cases, N. H. 191 ; Barrett v. Crane, 16 Vt. smtva,. 246 ; Jones h. Jones, 3 Dev. 360 ; Wil- 2 Ante, § 218-250. son v. Arnold, 5 Mich. 98. *• Glidden v. Elkins, 2 Tyler, 218 ; ° Schenley v. Commonwealth, 12 Donaldson v. Hazen, Hemp. 423 ; Os- Casey, Pa. 29 ; Brady t>. Eichardson, good V. Thurston, 23 Pick. 110 ; Bent 18 Ind. 1 ; Overstreet v. Brown, 4 Mc- V. Graves, 3 McCord, 280 ; McHenry Cord, 79 ; Wanzer v. Rowland, 10 V. Wallen, 2 Yerg. 441 ; Andrews o. Wis. 8. Wheaton, 23 Conn, 112. 363 § 783 SORTS OP PERSONS AND COMBININGS. [BOOK IV. lar sort of case where the defendant dwells within certain local limits, then, if one not within those limits answers to a suit, the jurisdiction, which was wanting before, is created, the objection being effectually waived.^ Now, if a judge or magis- trate does a wrongful thing outside of his jurisdiction, in a case wherein his judgment is a nullity, it is common in the books to say, and in some circumstances it is true, that the judicial office does not protect him against the suit of the party injured.^ But to hold this universally would take from the judge his protection in many cases fully within the principles on which it rests. The question of jurisdiction is a fundamen- tal one in every suit, it is as completely judicial as any other, and the judge must decide it whether it arises on the plead- ings or not.^ Then if, proceeding carefully and honestly, he concludes mistakenly in favor of his jurisdiction, doing exactly what the law commands him to do, yet being afterward over- ruled by other judges, he is just as much within the reasons which protect the judicial office as when he decides any other question erroneously. Whereupon, as to the judges of the higher courts and courts of record, the Supreme Court of the United States has distinguished between acts in excess of their jurisdiction, and those in the clear absence of any juris- diction over the subject-matter ; holding the ordinary rule of exemption applicable to the former, but not to the latter.* Most of the cases exhibit an inclination to be specially severe on justices of the peace and other inferior magistrates ; com- pelling them, in distinction from the rule as to the superior judges, to respond in damages whenever their judicial act was without jurisdiction.^ But, in reason, if judges properly ex- pected to be the most learned can plead official exemption for ^ Brown v. Webber, 6 Cush. 560 ; Kent, C. J. in Yates v. Lansing, 5 Mahaney v. ' Penman, 4 Duer, 603 ; Johns. 282, 290, referring to Marshalsea Loyd V. Hicks, 31 Ga. 140 ; Swan v. Oaae, 10 Co. 68 6; Field, J. in Kandall Smith, 26 Iowa, 87. v. Brigham, 7 Wal. 523, 535, 536, re- " Houlden ». Smith, 14 Q. B. 841. peated in Bradley v. Fisher, supra, at s Stamps V. Newton, 8 How. Missis, p. 351 ; Vaughn v. Congdon, ■ 56 Vt 34 ; The State v. Scott, 1 Bailey, 294. Ill; Nichols v. Walker, Cro- Car. 394 ; * Bradley v. Fisher, 13 Wal. 335. Piper ». Pearson, 2 Gray, 120 ; Willis 6 Wingate v. Waite, 6 M. & W. 739 ; v. Maclachlan, 1 Ex. D. 376. Estopinal v. Peyroux, 37 La. An. 477 ; 364 CHAP. XXXVI.] OFFICIAL PERSONS. § 786 their blunderings in the law, a fortiori those from whom less is to be expected and who receive less pay should not be com- pelled to respond in damages to their mistakes honestly made after due carefulness. And it was held in New Jersey that an inferior magistrate is not so answerable where the matter is colorably though not really within his jurisdiction.^ More- over, in other respects, the better authorities appear greatly to limit the strict rule.^ Plainly, in reason, if a judicial offi- cer of whatever grade should take jurisdiction where he knew he had none, or without due care to ascertain the law, he should answer in da^iages to the party injured ; and so, it is believed, are the authorities. And in legal reason also, this should constitute the only exception to the general rule of exemption, as to which the grade of the judicial office should be deemed immaterial. § 784. Ministerial. — Judges have more or less ministerial duties ; and, for the wrongful exercise of them, they are re- sponsible to the persons injured in the same manner and to the same extent as other civil officers.^ IV. Quasi Judicial. § 785. What. — Quasi judicial functions are those which lie midway between the judicial and ministerial ones. The lines separating them from such as are thus on their two sides are necessarily indistinct ; but, in general terms, — § 786. Doctrine defined. — When the law, in words or by implication, commits to any officer the duty of looking into facts, and acting upon them, not in a way which it specifically directs, but after a discretion in its nature judicial, the func- tion is termed quasi judicial; and he is responsible to one 1 Grove v. Van Duyn, 15 Vroom, ' Briggs v. Wardwell, 10 Mass. 356 ; 654, and see the expositions of Beasley, Tompkins v. Sands, 8 Wend. 462 ; Tay- C. J. p. 658, 659. lor v. Doreinns, 1 Harrison, 473 ; Stone 2 Bell V. MuKinney, 63 Missis. 187 ; v. Graves, 8 Miaso. 148 ; Spears v. Bocook V. Cochi'iin, 32 Hun, 521 ; Me- Smith, 9 Lea, 483 ; McTeer v. Lehow, Call V. Cohen, 16 S. C. 445 ; Ayles- 85 Tenn. 121 ; Pike v. Megoun, 44> worth V. St. John, 25 Hun, 156 ; Heard Mo. 491. V. Harris, 68 Ala. 43. And see Low- ther V. Radnor, 8 East, 113. 365 § 788 SORTS OP PERSONS AND COMBININGS. [BOOK IT. injured by his wrongful doing only if it is negligent, or ma- licious, or both.^ His situation is analogous to that of the judge or magistrate, explained in the last sub-title, but not identical ; yet substantially the same as that of the municipal corporation, which, like the officer, is a governmental instru- mentality.^ § 787. Why ? — The reasons for this exemption differ some- what from those which give immunity to the judge of a court,^ as does the extent of the exemption itself. It has indeed been placed, and justly, on the ground of public policy ; * but public policy does not seem specially to require it in all cases in which it prevails. And a reason covering the entire ground, applicable in all cases within the doctrine, is that, by the express or implied terms of the officer's authority, he is to act honestly, carefully, and after the dictates of his own judgment, which, of necessity, being a human judgment, may err ; therefore, when he has done what is thus commanded, whether the result is correct or not, he has exactly discharged his duty, and the law, which compelled this of him, will pro- tect him, whatever harm may liave befallen individuals.^ § 788. In what Cases. — This doctrine protects an assessor of taxes in making a valuation or otherwise determining a lia- bility,^ but not where his act is outside of his jurisdiction ; ^ a school board, in expelling a scholar;^ a town board of equali- zation, in determining the value of land ; ® commissioners for 1 Porter v. Haight, 45 Cal. 631 ; ment and discretion ; even although an Downer v. Lent, 6 Cal. 94 ; Bail v. individual may suffer by his mistake." Potts, 8 Humph. 225 ; Seaman v. Pat- « ^nte, § 746-750. ten, 2 Caines, 312 ; Harman v. Brother- ' Ante, § 782. son, 1 Denio, 537 ; Easton v. Calendar, * Gidley v. Palmerston, 7 Moore, 11 Wend. 90 ; Harman v. Tappenden, 1 91, 110 ; Dillingham v. Snow, 5 Mass. East, 555 ; Boner v. Adams, 65 N. C. 547, 558. And see Williams v. Adams, 639 ; Walker v. Hallock, 32 Ind. 239 ; 3 Allen, 171. Schoettgen v. Wilson, 48 Mo. 253 ; * Ante, § 110-130. Edwards v. Ferguson, 73 Mo. 686. In * Dillingham v. Snow, 5 Mass. 547, Kendall i;. Stokes, 3 How. U. S. 87, 98, 559 ; Weaver v. Devendorf, 3 Denio, Taney, C. J. stated the doctiine thus : 117. See Morgan v. Graham, 1 Woods, "A public, officer is not liable to an 124. action if he falls into error, in a case " Dom v. Backer, 61 N. Y. 261. where the act to be done is not merely * Stewart v. Southard, 17 Ohio, 402. a ministerial one, but is one in relation " Steele v. Dunham, 26 Wis. 393. to which it is his duty to exercise judg- 366 CHAP. XXXVI.] OFFICIAL PEESONS. 8 792 straightening a river to prevent inundations, in the manner of their work ; ^ arbitrators, in their doings as such,^ and mul- titudes of other official persons within the same reasons. Still,— § 789. Corrupt — Negligent. — From the ground on which this doctrine rests,^ it follows that, if the quasi-judicial act is corrupt, or even if it is negligent,* it will not be protected. So also, in general, are understood to be the judicial utterances and adjudications.^ And, — § 790. Jurisdiction. — In a general way, the g'wasi-judicial functions, like the judicial,® will be protected only as to what is done with jurisdiction. As to this matter, the two classes of functions appear, in reason, to occupy like ground ; the rule as to both requiring the limitations already explained.'^ V. TJie Ministerial Functions. § 791. When never Liable. — The rule already stated,^ that an officer is protected from liability for an injury inflicted in the doing of anything which a valid law requires, is emphati- cally applicable to the ministerial functions. Though an in- dividual may be injured, the officer is not responsible to him. And this rule is universal. To illustrate, — § 792. Process of Court. — If a court issues to its proper officer its command in due form, — as, to arrest a person, to attach his goods, or the like, — if the court has jurisdiction of the case, and if the process is otherwise valid on its face, the officer is justified in executing it, however improvidently it was issued, or even though founded on a void judgment.^ 1 Green v. Swift, 47 Cal. 536. and multitudes of other cases, a part " Jones V. Brown, 54 Iowa, 74. of which have already heen cited under ' Ante, § 787. this sub-title. * Ante, § 115. « Ante, § 783. * Harmau v. Tappenden, 1 East, ^ This appears in the foregoing cases 555 ; Pike v. Megoun, 44 Mo. 491 ; at large. Walker v. Hallock, 32 Ind. 239 ; Lill- « Ante, § 771. enthal v. Camphell, 22 La. An. 600 ; « Ante, § 211 ; 1 Bishop Crim. Gregory v. Brooks, 37 Conn. 365 ; Proced. § 187 ; Norcross v. Nunan, 61 Gould V. Hammond, McAl. 235 ; Ben- Cal. 640 ; Andrews v. Marris, 1 Q. B. 3, nett V. Fulmer, 13 Wright, Pa. 155, 16 ; Watson v. Watson, 9 Conn. 140 ; 367 § 796 SORTS OP PEaJSONS AND COMBININGS. [BOOK IV. Here he has inflicted damage on a party, yet he is not respon- sible therefor. On the other hand, — § 793. Outside of Duty. — A ministerial officer is not pro- tected, as a judicial or ^ost-judicial may be, from liability for an injurious act not within the line of his duties, howcTer free f i-om intentional wrong or malice.^ Thus, — § 794. Taking 'Wrong Property. — If an officer, having an execution against one person, levies upon the property of an- other, he is responsible to him, on whatever good reason he may have supposed it to belong to the former.* And the same rule applies where the officer takes in execution the defend- ant's exempt effects.* Or, — § 795. Arresting 'Wrong Person. — If an officer, having a writ for the arrest of one person, takes another instead, how- ever mistakenly, he is liable to the latter.* But, on the prin- ciple which justifies an officer in obeying his precept whatever irregularities lie behind,^ if, there being two persons of the same name, a summons is served on the one not indebted, and judg- ment is rendered against him on default for the otliei''s debt, an officer knowing the facts is legally justified in taking the former on execution.^ Again, — § 796. Neglects. — When circumstances have transpired which create a duty in a ministerial officer toward an indi- vidual, the latter has his action against the former, to be com- pensated for his losses through its non-discharge.^ It is so. Both V. Dm-all, 1 Idaho, 149 ; Cody v. v. Baker, 8 "Wils. 809 ; Edwni'ds v. Qninn, 6 Ire. 191 ; Noble v. Holmes, 5 Bridges, 2 Stark. 896 ; Kingsbury v. Hill, N. Y. 194 ; Cornell i'. Barnes, 7 Pond, 8 N. H. 611 ; 'Weber ti. Henry, Hill, N. Y. 35 ; Rex v. Danser, 6 T. R. 16 Mich. 899. 242, 245 ; Cogburn v. Spence, 15 Ala. " McGuire v. Oalligan, 57 Mich. 88; 549 ; People v. Warren, 5 Hill, N. Y. Bonnel ». Dunn, 4 Dutchei-, 158 ; Frost 440 ; Brainai-d v. Head, 15 I^a. An. v. Mott, 84 N. Y. 258. 489 ; Hart v. Dubois, 20 'Wend. 236 ; * Ante, § 218 ; Hays v. Crenrj', 60 Brother «. Cannon, 1 Scam. 200. Texas, 445 j Johnston v.- Riley,' 18 1 Keith V. Howanl, 24 Pick. 292 ; Ga. 97. "Williams v. Povfell, 101 Mass. 467 ; ' Ante, § 792. Lyon V. Goree, 15 Ala. 360. * O'Shaughnessy v. Baxter, 121 " Glasspoole i>. Young, 9 B. & C. Mass. 515. 696, 700, 701 ; 'Waloot ». Pomeroy, 2 'St. Joseph Fire, &o. Ins. Co. «. Pick. 121 ; Hallowell, &a. Bank v. Leland, 90 Mo. 177 ; Harrington «. Howard, 14 Mass. 181 ; Saunderson 'Wadswortht 68 N. H. 400. 368 CHAP. XXXVI.] OFFICIAL PERSONS. § 798 for example, where the proper officer neglects to execute a process of the court cooimitted to him, to the injury of a party.i Even if he is too sick to do the service in person, he should turn over the work to another officer, or he will be liable.2 § 797. other DntieB and Liabilities. — The subject of this sub-title might be greatly expanded, leading us into extensive elucidations of the duties and liabilities of particular ministe- rial officers. But so we should travel beyond the lines which bound the sphere of this volume. The principles are already in this chapter sufficiently developed, with enough of illustra- tions to render their several natures and applications plain. Therefore the chapter should here close. § 798. The Doctrine of this Chapter restated. The rights and liabilities of official persons vary with the differing official functions and the diverse natures of their sev- eral offices. One invested with official power is not, therefore, licensed to become a law-breaker. But if a function is by the law made in him discretionary, he is not to be called to ac- count for exercising therein an honest discretion however mis- taken; though ordinarily he is liable to one injured if he discharges even this duty corruptly. Yet a discretion in a legislator or the judge of a court is not to be reviewed, at the suit of a complaining party, by the judiciary. The remedy is with the legislative body, to be exercised by expulsion or by impeachment, as the particular case requires. A duty not dis- cretionary, imposed by the law upon an officer, affords no room for this sort of doctrine. He is exempt from liability if he discharges it according to its terms. But if he neglects it, and thereby injures one who has acquired an interest in its doing, he is answerable to this person. If, while merely pro- fessing or even honestly intending to discharge it, he in fact steps aside and injures another, he must make to him com- pensation. » Mason v. Paynter, 1 Q. B. 974 ; ^ Freudenstein v. McNier, 81 III. Adams v. Spangler, 17 Fed. Kep. 133 ; 208. Demint v. Thompson, 80 Ky. 255. • 24 369 § 800 PABTICULAB PLACES AND THINGS. [BOOK V. BOOK V. RIGHTS AND LIABILITIES PERTAJNING TO PARTICU- LAR PLACES AND THINGS. CHAPTER XXXVn. LANDS, BUILDINGS THEREON, AND FENCES. §799. Introduction. 800-812. Uses and Manner of Fencing. 813-818. Buildings and how they Protect 819-825. One's Use and Abuse of Another's Bealty. 826-859. One's Use and Misuse of Own Bealty. 860. Doctrine of Chapter restated. § 799. How Chapter divided. — Reversing the order in the title, we shall consider, I. The Uses and Manner of Fencing ; II. Buildings and their Protection in Law to Persons and Things therein ; III. One's Use and Abuse of Another's Realty ; IV. One's Use and Misuse of his Own Realty. I. The Uses and Manner of Fencing. § 800. Purpose of Fence. — Fences are not built to protect the property against trespasses by men, by birds, or by dogs. They are simply for its preservation from damage by cattle and other like domestic animals.^ If practically they some- 1 The statutes differ in their terms, other things, " hogs," Stanb ti. Fantz, We have the words " cattle, horses, 11 Heisk. 766 ; and, though horses and sheep, and hogs." Ohio, &o. Eld. ». homed cattle are more particularly in- Brubaker, 47 111. 462. Also, among tended by most of our fence laws, some 370 CHAP. XXXVn.] LANDS, BUILDINGS, FENCES. 802 times serve other purposes also, snch benefits are not within any special contemplation of the law. Now, — § 801. At Common liaw, — the owner of cattle is required to take care of them. If they trespass on a neighbor's land, he is responsible though there is no fence.^ Such, in the ab- sence of a statute, is the rule of law in most of our States.^ But in a few of them it is not accepted, so that owners are not responsible for the trespasses of their cattle running at large.* And pretty generally with us there are statutes requiring fences, thus taking the place of the common law.* So, — § 802. Preacription -^ Agreement. — In England where, con- trary to the ordinary course of things in our young country, prescriptive rights are common, the duty to fence is often cast upon a party by prescription.® With us, the thing which pre- scription presumes — namely, an agreement between the par- ties interested ^ — is sometimes entered into ; '' sometimes, here also, there is prescription.' are specially meaat for protection against hogs. Wells V. Seal, 9 Kan. 597. See also Willard v. Mathesns, 7 Colo. 76 ; Schrier t>. Milwankee, &c. By. 65 Wis. 457 ; Keyser v. Chicago, &c. Ey. 56 Mich. 559 ; Walkenhauer p. Chicago, ke. Ey. 3 McCrary, 553. 1 8 Bl. Com. 211 ; 3 Kent Com. 438 ; Com. Dig. Trespass, D ; Chnrchill V. Evans, 1 Taunt. 529 ; Ellis v. Loftns Iron Co. Law Eep. 10 C. P. 10. 2 Wells V. Beal, 9 Kan. 597 ; Baker V. Eobbins, 9 Kan. .303 ; Brady v. Ball, 14 Ind. 317 ; McBride v. Lynd, 55 111. 411 ; French v. Cresswell, 13 Oregon, 418 ; Wells v. HoweU, 19 Johns. 385 ; Bush 1!. Brainard, 1 Cow. 78 ; Milligan V. Wehinger, 18 Smith, Pa. 235 ; Kea- nan v. Cavanangh, 44 Vt. 268 ; Little V. Lathrop, 5 Greenl. 356 ; I^ord v. Wormwood, 29 Maine, 282 ; Lyons v. Merrick, 105 Mass. 71, 75 ; Michigan So. &c. Eld. V. Fisher, 27 Ind. 96; Page V. HoUingsworth, 7 Ind. 81 7. 8 Adams v. Van Alstyne, 25 X. Y. 232 ; Binney v. Proprietors in Hull, 5 Pick. 503 ; Thayer v. Arnold, 4 Met. ' MePheeters v. Hannibal, &c. Eld. 45 Mo. 22 ; Morris v. Fraker, 5 Colo. 425 ; Eaiford v. Mississippi, &c. Eld. 43 Missis. 233 ; Frazier v. Sortinns, 34 Iowa, 82 ; Cleveland, &c. Eld. v. Elli- ott, 4 Ohio State, 474. * Campbell ■». Bridwell, 5 Oregon, 311 ; Stanb v. Fantz, 11 Heisk. 766 ; Logan V. Gedney, 38 Cal. 579; Bliz- zard V. Walker, 32 Ind. 437 ; Camp ». Flaherty, 28 Iowa, 520 ; Illinois Cent. Eld. V. Arnold, 47 IIL 173 ; OU v. Eow- ley, 69 lU. 469. 6 Star n. Eookesby, 1 Salk. 335 ; Anonymous, 1 Vent. 264, 3 Salk. 278 ; Carmthers v. Hollis, 8 A. & E. 113. • Boyle V. Tamlyn, 6 B. & C. 329, 338 ; Gilchrist v. Cachrist, 76 111. 281. ^ Pittsburg, ic. By. v. Smith, 26 Ohio State, 124 ; Page v. Hodgdon, 63 N. H. 53 ; Oai v. Atlantic, &c. Ey. 27 Ohio State, 240 ; Cincinnati, &c. Eld. V. Eidge, 54 Ind. 39 ; Vandom v. New Jersey So. Bid. 15 Stew. Ch. 463 ; Stone 589 ; Bust v. Low, 6 Mass. 90 ; Heath V. Bicker, 2 Greenl. 72. 371 § 807 PAETICULAR PLACES AND THINGS. [BOOK V. § 803. The Formalities — for establishing and keeping in repair a division fence vary with the statutes. Pertaining merely to conflicting local law, they will not be explained here. § 804. Sufficiency of Fence. — The statute or custom de- termines what shall be an adequate — sometimes termed " lawful " — fence, but there is no uniform standard for the States ; so, for this, the practitioner must resort to his local authorities.' § 805. Injuring Fence. — One who unlawfully injures a fence must pay the resulting damage. Thus, if a railroad negli- gently burns a fence, thereby causing a loss of crops to a third person not himself in fault, it must compensate this person.^ And one's breaking of another's fence brings to him the same consequence.^ Of course, in these cases the fence-owner is entitled also to be indemnified.* In like manner, — § 806. Neglect to Repair. — A person whose duty it is to repair a fence is liable for whatever damage results from its neglect.^ It is so, for example, if another's horse in an adjoin- ing field is injured ; ^ or, escaping into the delinquent per- son's field, is there killed by a falling haystack.^ But — § 807. Sufferer's own Neglect. — One cannot complain of what he has brought upon himself ; as if, through a fence in- V. Wait, 50 Vt. 663 : Ivina v. Acker- Gilpin, 64 Ind. 116 ; Polk v. Lane, 4 son, 9 Vroom, 220 ; Bills «. Belknap, Yerg. 36. 38 Iowa, 225 ; Dent v. Boss, 52 Missis. ^ MiUer i). St. Lonis, &c. By. 90 188 ; Pitman v. Gale, 63 N. H. 75. Mo. 389. Of course, it may be equally well by " Courtney v. Collet, 1 Ld. Baym. actual agreement in England, and some- 272 ; Bussell v. Hanley, 20 Iowa, 219. times it is. Boyle v. Tamlyn, 6 B. & * And see Avary v. Searcy, 50 Ala. C. 329. 54 ; Howard v. Black, 42 Vt. 258 ; ' Meade «. Watso6, 67 Cal. 591 ; Drees v. The State, 37 Ark. 122 ; Mat- Hilliard «. Chicago, &c. Ey. 37 Iowa, son v. Calhoun, 44 Mo. 368 ; Polk v. 442 ; Phillips v. Oystee, 32 Iowa, 257 ; Lane, 4 Yerg. 36. Moore ». White, 45 Mo. 206 ; Scott v. « Cheetham v. Hampson, 4 T. E. Wirshing, 64 111. 102 ; Montgomery v. 318. Handy, 62 Missis. 16 ; Shellabarger v. ^ Booth v. Wilson, 1 B. & Aid. 59. Chicago, &c. By. 66 Iowa, 18 ; Clark And see Herrick v. Gary, 65 111. 101. V. Stipp, 75 Ind. 114 ; Mcllvaine v. ' Powell v. Salisbury, 2 Y. & J. Lantz, 4 Out. Pa. 586 ; Storms ii. 391. White, 23 Mo. Ap. 31 ; Hinshaw v. 372 CHAP. XXXVn.] LANDS, BUILDINGS, FENCES. § 811 sufficient because of his own non-repair contrary to a duty, his neighbor's cattle come upon his land and do damage, he can have no action against the neighbor.^ His own negligence being thus the proximate cause of his loss, he must bear it uncompensated.^ Yet if, in these circumstances, the neighbor drives the cattle upon his land, the injury comes from a dis- connected wrong of the neighbor's,^ and he may have his action for the damage.* § 808. Breaking through Lawful Fence. — The owner of cattle that break through a lawful fence ^ and do damage, must make compensation.^ § 809. Specially as to Railroads : — At Common Law. — From the foregoing it follows that, in the absence of a statutory command, railroads are under no duty to fence their right of way ; and that, if they do not, cattle are no more permitted to trespass upon it than persons.'' Still,— § 810. Legislation. — It is competent for the State to estab- lisli legislative regulations on this subject, compelling the rail- roads to fence their tracks. » This in most of the States has been done ; but the statutes are various in their provisions, so they will not be given here in detail. § 811. Liability to Owners of Cattle. — These statutes, by 1 Com. Dig. Trespass, D ; Wills v. bell v. New York, &o. Rid. 50 Conn. Walters, 5 Bush, 351 ; Little v. Mc- 128. There are States as to the law of Guire, 38 Iowa, 560 ; Dufifees v. Judd, which this statement would not be cor- 48 Iowa, 256 ; Akers v. George, 61 111. rect. Thus, in Florida, neither is a 376 ; Scott V. Grover, 56 Vt. 499. railroad required to fence nor the owner " Ante, § 462. of cattle to keep them off its track. « Ante, § 61. Savannah, &c. Ey. v. Geiger, 21 Fla. * Powers V. Kindt, 13 Kan. 74. And 669. And see New Orleans, &c. Rid. see Erbes v. Wehmeyer, 69 Iowa, 86 ; v. Field, 46 Missis. 573. Bullard v. Mulligan, 69 Iowa, 416 ; ^ Missouri Pac. Ey. v. Humes, 115 Carruthers v. Hollis, 8 A. & E. 113 ; U. S. 512 ; Pennsylvania Eld. v. Eiblet, Pitzner v. Shinnick, 41 Wis. 676. 16 Smith, Pa, 164 ; Texas Central Ey. * Ante, § 804. v. ChOdress, 64 Texas, 346 ; Phillips v. " Rice ®. Nagle, 14 Kan. 498; Angus Missouri Pac. Ey. 86 Mo. 540; Hine.«i V. Eadin, 2 Southard, 815. v. Missouri Pac. Ry. 86 Mo. 629 ; ' Jones V. Western N. C. Rid. 95 Humes v. Missouri Pac. Ry. 82 Mo. N. C. 328 ; Williams v. Northern Pac. 221 ; Meyers v. Union Trust Co. 82 Rid. 3 Dak. 168 ; Indianapolis, &c. Mo. 237. Eld. V. Barter, 38 Ind. 557 ; Camp- 373 §812 PARTICULAR PLACES AND THINGS. [book v. their constructive effect or their direct terms, create a wide liability of the roads to the owners of cattle killed through their neglect to build or keep in repair fences.^ § 812. Rebuilding — Repairing. — A fence destroyed by fire must be promptly rebuilt ;2 if it is, the accidental burning does not constitute a breach of the road's duty to fence.* And the like doctrine applies to its getting out of repair by other means.* But the road must use diligence to keep up repairs ^ and to make them properly .^ 1 Toledo, &o. Ey. v. Logan, 71 111. 191 ; Devine v. St. Paul, &c. Eld. 22 Minn. 8 ; Winger v. First Division, &c Eld. 22 Minn. 11 ; Hovorka v. Minne- apolis, &c. By. 34 Minn. 281 ; Emmons V. Minneapolis, &c. Ey. 35 Minn. 503 ; Wittkouse ». Atlantic, &c. Eld. 64 Mo. S23; Asher v. St. Louis, &e. Ey. 89 Mo. 116 ; Eadcliffe v. St. Louis, &c. Ey. 90 Mo. 127 ; Tickell v. St. Louis, &c. Ey. 90 Mo. 296 ; Accola v. Chi- cago, &o. Ey. 70 Iowa, 185 ; Liston v. Central Iowa Ey. 70 Iowa, 714 ; Peoria, &o. Eld. V. Barton, 80 111. 72; Indiana, &e. Ey. V. Quick, 109 Ind. 295 ; Cin- cinnati, &c. Ey. V. iParker, 109 Ind. 235; Glandon v. Chicago, &c. Ey. 68 Iowa, 457 ; Pittsburgh, &c. Ey. v. Hackney, 53 Ind. 488 ; Toledo, &c. Ey. V. Lavery, 71 111. 522 ; Ward v. St. Louis, &c. Ey. 91 Mo. 168 ; St. Johns- bury, &c. Eld. u. Hunt, 59 Vt. 294 ; Toledo, &c. Ey. v. Weaver, 34 Ind. 298 ; Jeffersonville, &c. Eld. v. O'Con- nor, 37 Ind. 95 ; Toledo, &c. Ey. v. Cary, 37 Ind. 172 ; Jeffersonville, &c. Eld. V. Sullivan, 38 Ind. 262 ; Fritz v. Milwaukee, &c. Rid. 34 Iowa, 337 ; Pittsburgh, &c. Eld. v. Brown, 44 Ind. 409 ; Pound v. Port Huron, &c. Ey. 54 Mich. 13 ; Snider v. St. Louis, &c. Ey. 73 Mo. 465 ; Eazor v. St. Louis, &c. Ey. 73 Mo. 471 ; Lee v. Minneapolis, &c. Ey. 66 Iowa, 131 ; Indianapolis, 374 &c. Eld. !i. Lindley, 75 Ind. 426 ; Chi- cago, &c. Ey. V. Diehl, 52 111. 441 Toledo, &c. Ey. v. Darat, 51 111. 365 Walther v. Pacific Eld. 55 Mo. 271 Slattery v. St. Louis, &c. Eld. 55 Mo, 362 ; Burlington, &c. Eld. v. Shoe maker, 18 Neb. 369 ; Clarkson v. Wa. bash, &c. Ey. 84 Mo. 583; Manz o. St. Louis, &c. Ey. 87 Mo. 278 ; McCoy V. California Pac. Eld. 40 Cal. 532. 2 Toledo, &c. Ey. v. Cohen, 44 Ind. 444. ' Stephenson v. Grand Trunk Ey. 34 Mich. 323 ; Crosby v. Detroit, &c. Ey. 58 Mich. 458. * Duncan v. St. Louis, &c. Ey. 91 Mo. 67 ; Laude v. Chicago, &c. Ey. 33 Wis. 640 ; Antisdel v. Chicago, &c. Ey. 26 Wis. 145 ; Chicago, &c. Ky. v. BaiTie, 55 111. 226 ; Chicago, &c. Eld. V. Guertin, 115 111. 466 ; Perry v. Du- buque, &o. Ey. 36 Iowa, 102. 6 Grand Eapids, &c. Eld. v. Monroe, 47 Mich. 152 ; Agnew v. Michigan Cent. Eld. 56 Mich. 56 ; Clardy v. St. Louis, &c. Ey. 73 Mo. 576 ; Aylesworth v. Chicago, &c. Eld. 30 Iowa, 459 ; Dewey V. Chicago, &c. Eld. 31 Iowa, 373; Davis V. Hannibal, &c. Ey. 19 Mo. Ap. 425 ; Maberry v. Missouri Pac. Ey. 83 Mo. 664. « Baltimore, &c. Eld. v. Schultz, 43 Ohio State, 270. And see Chicago, &c. Rid. V. Umphenour, 69 111. 198. CHAP. XXXVII.] LANDS, BUILDINGS, FENCES. § 815 II. Buildings and their Protection in Law to Persons and Things therein. § 813. Are Realty. — '- Subject to exceptions not important to our present expositions, all structures of a permanent na- ture, resting upon the soil, are in law parcel of it; being, therefore, real estate, the ownership of which attaches to and passes with that of the soil.' Hence, — §814. Simply Land — (injuries to). — For most purposes, a building is simply kind. An injury to it is prosecuted as done to the land.^ And as, in civil jurisprudence, one who has been harmed is entitled to such damages only as will com- pensate him for his loss,^ estimated largely in the circum- stances which permit them to be exemplary,* there is little room for distinguishing between the soil and the buildings, in contemplating injuries done to the one or the other ; the test being, not which one, but the amount. Yet, — § 815. In the Criminal Law, — where penalties are imposed from public considerations, and not as compensation to indi- Tiduals who hare suffered,^ offences committed by breaking and entering buildings and by burning them, and attempts to commit crimes by such means, are made more heavily pun- ishable than are the like things done or attempted upon the open ground. But they are not within our present inquiries. Still,— 1 Co. Lit. 4£t; 2 Bl. Com. 18 ; 3 Mod. 433 ; Story v. Odin, 12 Kent Com. 401 ; Hemenway v. Cutler, 157 ; Sawyer v. Ryan, 13 Met. 144, 51 Maine, 407 ; "Washtum v. Sproat, 148. 16 Mass. 449 ; Penton v. RoLart, 2 « Ante, § 22, 30, 32, 227, 244, 310, East, 88 ; Kingaley v. Holbrook, 45 317, 318, 338, 340, 350, 519. N. H. 313 ; Mott v. Palmer, 1 Comst. * Philadelphia, &c. Rid. v. Quigley, 564, 569 ; Wood v. Hewett, 8 Q. B. 21 How. U. S. 202, 213 ; Milwaukee, 913 ; Martin v. Roe, 7 Ellis & B. 237 ; &o. By. v. Arms, 91 U. S. 489, 492 ; Landon v. Piatt, 34 Conn. 517 ; Goff i>. Smalley v. 'Smalley, 81 111. 70 ; De- O'Conner, 16 111. 421 ; Gibbs v. Estey, vaughn v. Heath, 37 Ala. 595 ; Dickey 15 Gray, 587 ; Eeid v. Kirk, 12 Rich. v. McDonnell,41 111. 62 ; Best v. Allen, 54 ; Hartwell ». KeUy, 117 Mass. 235 ; 30 111. 30 ; New Orleans, &c. Rid. v. Schoonover v. Irwin, 58 Ind. 287. Hurst, 36 Missis. 660. 2 1 Chit. PI. 174 ; Anonymous, 12 ^ Ante, § 519. Mod. 420 ; Turton v. Reignolds, 12 375 § 819 PARTICULAR PLACES AND THINGS. [BOOK V. § 816. The Dwemng-hoiise, — termed anciently the castle, furnishes now as formerly a special protection to the persons and effects therein, in contemplation of our civil jurispru- dence. It consists, not necessarily of a single building, but of the cluster of buildings, main and auxiliary, used for habita- tion; extending even to the barn and stable, if within the curtilage of the inhabited structure.^ One cannot, by shutting himself np in his dwelling-house, avoid arrest for crime ; ^ but the law in no ordinary circumstances permits a private person to enter it against his will, nor has any officer the right to break and pass through its outer doors to serve civil process.* And fraud in effecting an entry may be in its effect equivalent to force.* On the other hand, — § 817. Other BuUdings — do not, in civil jurisprudence, fur- nish any corresponding protection. An officer whose precept permits him to enter upon open lands and arrest a person or attach his goods may, on demand and refusal (a step neces- sary to avoid needless damage), break any other building and take the person or goods.^ § 818. As Parts of the Realty, — buildings will be consid- ered with the rest in the following sub-titles. III.' Owe's Use and Abuse of AnotTier's Realty . § 819. What Abuse Actionable. — Except as to what is jus- tifiable under the necessity explained in a preceding chapter,® 1 Bishop Stat. Crimes. § 277-290. person. De Graffenreid v. Mitchell, 2 1 Bishop Grim. Proced. § 195-205 ; 8 MoCoid, 506 ; Burton . Hall, 47 Vt. 182 ; FuUeam u. Muscatine, 57 Iowa, 457 ; Williams «. Morris, 8 M. & W. 488. Beckwith v. Shordike, 4 Bnr. 2092 ; » Ante, § 126, 161-163, 169, 173 ; Hill V. CSncinnati, &c. Ry. 109 Ind. Prerogative Case, 12 Co. 12 ; Arundel 511 ; Dyson v. Collick, 5 B. & Aid. v. McCulloch, 10 Mass. 70 ; Campbell 600. V. Race, 7 Gush. 408. 1 Ellis V. Loftus Iron Co. Law Rep. 6 Carpenter v. Halsey, 60 Barb. 45. 10 C. P. 10. ' Rex V. Smith, 6 Car. & P. 136 ; 2 Ante, § 417 ; Martin v. Simpson, Handcock v. Baker, 2 B. & P. 260. 6 Allen, 102 ; Hazeltine ». Edgmand, 35 » Ante, § 125, 164, 414 ; Seavey v. Kan. 202 ; Underwood v. Waldron, 33 Preble, 64 Maine, 120. Mich. 232. » Gilmore v. Wale, Anthon, 2d ed. 8 Crowther v. Kamsbottom, 7 T. R. 87. 654 ; Howe v. Butterfield, 4 Cush. 302 ; »» Adams v. Freeman, 12 Johns. 408. Chipman v. Bates, 15 Vt. 51 ; Yeager v. n Ante, § 392. Carpenter, 8 Leigh, 454. 378 CHAP. XXXVII.j LANDS, BUILDINGS, FENCES. § 828 become a rule of law that, whenever a person has entered another's premises peaceably, the occupant cannot lawfully eject him by force unless he first requests him to depart.^ But such previous request is not necessary where the entry was by force and violence.^ In either case, the necessary pre- liminary having thus transpired, the occupant may eject the intruder by such force in degree and kind as is reasonably necessary, yet no more.^ And still, — § 825. Breach of Peace. — If persons on one's premises mis- conduct themselves to the extent of creating a riot or other breach of the peace, they may be lawfully given into custody.* On the other hand, if the expulsion from the premises is done in such a tumultuously unlawful manner as to constitute a breach of the peace, — for example, a forcible detainer, — the party thus acting, yet having the rightful possession, will not necessarily be liable to the other in a civil suit.° rV. Owe's Use and Misuse of his Own Realty. § 826. Elsewhere. — The subject of this sub-title extends forward and in a measure covers the next chapter as well as the remainder of this. § 827. No Injury to Others. — From principles explained in the earlier parts of this volume, we derive the conclusion that no one can incur a liability for what he does on his own land, however far it may be from anything intrinsically proper, ju- dicious, useful, or harmless, unless another person has been damnified thereby.® Moreover, — § 828. Injury. — Though an injury has resulted to another, it does not follow that he who in pursuing his own interests caused it, must compensate him ; that will depend on prin- 1 Ballard v. Bond, 1 Jur. 7 ; The ory v. Hill, 8 T. E. 299 ; Jones v. State V. Burke, 82 N. C. 551 ; The Jones, 71 IlL 562 ; Abt v. Burgheim, State V. "Woodward, 50 IS. H. 527. 80 111. 92. 2 Tullay V. Eeed, 1 Car. & P. 6 ; * Cohen v. Huskisson, 2 M. & W. Green v. Goddard, 2 Salk. 641 ; Polkin- 477. horn V. Vright, 8 Q. B. 197. ' Ante, § 197 ; Souter v. Codman, 8 Green v. Bartram, 4 Car. & P. 308 ; 14 R. 1. 119. Oakes •». Wood, 2 M. & W. 791 ; Greg- « Ante, § 22, 98, 102. 379 § 831 PARTICULAR PLACES AND THINGS. [BOOK V. ciples already considered,^ and to be further brought under review in the present sub-title. The doctrine is that — § 829. Befined. — One may not, either voluntarily or negli- gently, cast earth or other substance from his own ground on a neighbor's ; or upon his own bring or erect anything, or change the natural position of anything, from which the air, the moving water, or any other force of nature will bear to another on other land what is distinctly injurious to him ; or, by any excavation, structure, or other change of his premises from their natural condition, render them unsafe to other per- sons and their property lawfully thereon ; while yet these restraints will not be drawn so closely as substantially to deprive him of the use of his lands, or the ordinary pursuit of his own interests, or to render him answerable for inevitable accidents injuring others. More particularly, — § 830. Casting Things from Own Ground on Neighbor's : — General. — This is one of the forms of abusing a neighbor's realty, explained in the last sub-title ; as, where one plants on his own ground a tree which sends its roots into a neighbor's well,^ or builds a roof which projects water on a neighbor's soil,^ or sends up a rocket which falls on a neighbor's premises and does mischief.* Other of the common illustrations are — § 831. Blasting. — The precise extent of one's right to blast rocks on his own ground, in the prosecution of a lawful busi- ness, may not be very accurately defined. He can do it in a sparsely iiiliabited country away from all dwelling-houses, and where the few persons put in peril are notified of each coming blast.^ But to attempt it to the endangering of a dwelling- house ® is evidently a private nuisance ; or, in a city, to the peril of many people and their buildings, is a public nuisance ; and, in either case, he who does it is responsible for the injury inflicted. Nor, in these circumstances, is it a defence that the work was carefully performed ; the act, when it results in » Ante, § 11, 14, 98, 102-107 ; Vic- » Drisooll «. Newark, &c. Co. 37 tory V. Baker, 67 N. Y. 366. N. Y. 637. 2 Ante, § 819. « Hay v. Cohoes Co. 2 Comst. 159 ; ' Ante, § 821 ; Bellows o. Sackett, Beauchamp v. Saginaw Min. Co. 50 15 Barb. 96. Mich. 163. * Fisk V. Wait, 104 Mass. 71. 380 CHAP. XXXVII.] LANDS, BUILDINGS, FENCES. §833 injury, is a trespass, and the question of negligence does not arise.^ § 832. steam-boiler. — A steam-boiler does not, as ordina- rily blasting does, send into tlie air and surrounding grounds death-producing missiles. Therefore one who makes a lawful use of it in the carrying on of his business is responsible, should it burst and do damage to neighboring premises or per- sons, only if there is in it some defect which he ought to have discovered, or if it is run negligently.^ A fortiori, — § 833. Fire. — Since fire, one of the most beneficent ser- vants of man, does not from its own nature imperil surround- ing persons and objects, the careful setting and keeping of it in one's dwelling-house, shop, field, or elsewhere, for a useful purpose, creates no liability to another injured by its spread- ing, through some accident not reasonably to be anticipated.^ But a fire set or looked after negligently, if by reason of such negligence it communicates to a neighbor's property and de- 1 lb. ; Wright V. Compton, 53 Ind. 337 ; Colton v. Onderdonk, 69 Cal. 155 ; Losee ». Bachanaa, 51 N. Y. 476, 479, explaining Hay v. Cohoes Co. supi-a ; Tiffin v. McCormack, 34 Ohio State, 638, 644. 2 Ante, § 184 ; Marshall v. Wel- wood, 9 Vroom, 339 ; Losee o. Bu- chanan, 51 N. Y. 476 ; Spencer ■». Campbell, 9 "Watts & S. 32. 8 Catron v. Nichols, 81 Mo. 80 ; Miller v. Martin, 16 Mo. 508 ; Clark v. Foot, 8 Johns. 421 ; Barnard v. Poor, 21 Pick. 378 ; Jacobs «. Andrews, 4 Iowa, 506 ; Hanlon ». Ingram, 3 Iowa, 81 ; Fahn v. Beichart, 8 Wis. 255. The statute of 6 Anne, c. 31, § 6, de- clares that no action shall be main- tained "against any person in whose house or chamber any fire shall acci- dentally begin, or any recompense be made by such person for any damage suffered or occasioned thereby." This statute is common law in New York. Lansing v. Stone, 37 Barb. 15, 14 Abb. Pr. 199 ; Webb ». Rome, &c. Eld. 49 N. Y. 420. It is probably such also in most of our other States. In 1774, too late for English statutes to be common law with us, it was re-enacted in a larger form of the expression by 14 Geo. 3, c. 78, § 86. "The ancient law, or rather custom of England," says Lord Denman, C. J. "appears to have been, that a person in whose house a fire originated, which afterwards spread to his neighbor's property and destroyed it, must make good the loss." FilUter «. Phippard, 11 Q. B. 347, 354. As to which see also Tubervil u. Stamp, 1 Salk. 13 ; Anonymous, Cro. Eliz. 10, in which latter ease it was held that, if one in his own house sets it on fire by shooting out at a fowl, he is responsible ; "for the injury is the same although this mischance was not by a common negligence but by misadventure." The ancient common law, as thus stated, does not accord with common-law prin- ciples as at present held both in Eng- land and in the United States. The statute is construed as not applying to a fire lighted intentionally. Filliter v. Phippard, supra, or negligently, Webb V. Borne, &c. Rid. supra. 381 § 834 PARTICULAR PLACES AND THINGS. [BOOK V. stroys it, will give the neighbor an action for the damages.^ To illustrate, — § 834. Instances. — In a room containing oil cans, and in- flammable waste scattered around the stove, one can being on the stove, the occupant set the damper wide open, locked the door, and departed. From this evidence, a fire having been engendered doing damage, a jury was held to be justified in finding the negligence which rendered the proprietor respon- sible.2 Again, on land used for agriculture, it is lawful and sometimes necessary to set fires to burn dry grass and stubble, and other combustible things, but not lawful at a time or in a manner rendering it probable that damage will result to a neighbor.^ Thereupon, one kindled on his land a fire for such a purpose, and attempted to extinguish it the same day ; but it continued smouldering in the soil of a slough until, two days later, it broke out and did damage. And it was held that, if the kindling was negligent, he was not excused because he could not foresee this breaking out.* A gas company con- ducted the work of putting in gas so negligently that it escaped, ignited, and burned a neighboring building ; and for this burning the company was held to be responsible.^ One negligently put upon the extremity of his land a haystack in too green a state. It gave out evidences of approaching com- bustion, but he declined to pay any attention to them ; then it burst into flames, and consumed adjoining property of a neighbor. He was held to be liable.® Sparks thrown out in engendering steam may, or not, render one responsible to another for the damages, according as under the circumstances the act was negligent or otherwise.^ 1 Turtervil v. Stamp, Comb. 459, * Krippner v. Biebl, 28^Minn. 139. 12 Mod. 152 ; Littleton v. Cole, 5 6 Blenkiron v. Great Cent. Gas Con. Mod. 181 ; Higgins v. Dewey, 107 Co. 3 L. T. N. s. 317. Mass. 494, 496 ; Bachelder v. Heagan, * Vanghan v. Menlove, 3 Bing. N. C. 18 Maine, 32 ; Hewey d. Nourse, 54 468, 1 Jur. 215, 7 Car. & P. 525. Maine, 256 ; Garrett v. Freeman, 5 ' Read v. Morse, 34 Wis. 315 ; Moo- Jones, IT. C. 78 ; Gibbons v. Wisconsin mey v. Peak, 57 Mich. 259 ; Adams v. Valley Eld. 66 "Wis. 161. Young, 44 Ohio State, 80 ; Lawtou v. 2 Read v. Pennsylvania Eld. 15 Giles, 90 N. C. 374 ; Crandall v. Good- Vroom, 280. rich Transp. Co. 16 Fed. Rep. 75. * Dewey ». Leonard, 14 Minn. 153 ; Hays V. Miller, 6 Hun, 320. 382 CHAP. XXXVII.] LANDS, BUILDINGS, FENCES. § 838 § 835. Flames carried by Wind. — Regarded as the act of God,i or as a new and independent force,^ a wind bearing the flames from the premises of one who negligently caused them, to another's, may be a form of their transmission which will not found an action for the damages.* But this will not be so under all circumstances.* § 836. Subsequent Communication of Fire. — According to some opinions, if a fire for which one is answerable commu- nicates to the premises of a second person and thence to those of a third, he cannot be required to pay the third person's damages.^ But this is contrary to what we saw in an early chapter to be the just doctrine of the English and most Amer- ican courts ; ^ and it is generally repudiated, the liability ex- tending to all the natural and probable consequences of the negligent act.^ § 837. statutes — have in some States, and in some degree, regulated this question of fires.* § 838. Water — is a necessary for man ; and, like fire, and like food, it is employed for the protection and sustenance of the body, for the turning of useful machinery, and in various other ways. Hence the rules just stated as to fire and steam apply to water also.^ Where water is supplied through pipes for domestic and other like uses, if the leakage or bursting of a water-pipe on one's premises causes injury upon adjoining land, the person responsible for the condition of the pipe is required to indemnify the other only if there was in it an original defect which he ought to have discovered, or some 1 Ante, § 157, 158. Gantt, 39 Md. 115, 141 ; Perley u. 2 Ante, § 42. Eastern Rid. 98 Mass. 414 ; Milwau- » Pennsylvania Co. „. Whitlock, 99 kee, &c. Ry. .-. Kellogg, 94 U. S. 469. Ind. 16. See ante, § 138 ; Averitt v. And see Adams v. Young, 44 Ohio State, Murrell, 4 Jones, N. C. 322. 80 ; Cook v. Johnston, 58 Mich. 437. * Smith V. London, &e. Ry. Law ' See, for example, Brunell v. Hop- Eep. 5 0. P. 98, 6 C. P. 14 ; Perley v. kins, 42 Iowa, 429 ; Lamb v. Sloan, 94 Eastern Rid. 98 Mass. 414, 418. N. C. 534 ; Grannis u. Cummings, 25 5 Ryan v. New York Cent. Rid. 35 Conn. 165 ; Roberson v. Kirby, 7 Jones, N. Y. 210 ; Pennsylvania Rid. v. Kerr, N. C. 477. 12 Smith, Pa. 353. ° Ross v. Fedden, Law Rep. 7 Q. B. 8 Ante, § 40-48. 661 ; Blyth v. Birmingham Water- ^ Delaware, &c. Rid. v. Salmon, 10 works, 11 Exch. 781. Vroom, 299 ; Annapolis, &c. Rid. v. 383 § 839 PARTICULAR PLACES AND THINGS. [BOOK V. negligence in its care.* One, to carry away the water from his roof, collected it in a box, whence it descended through a pipe to the sewer. A rat ate a hole in the box, and the water flooded the premises of another to whom he had let the lower story, doing damage. The former, being guilty of no negli- gence, was held liot to be responsible, — partly, perhaps, on the ground that the rat-hole was the act of God.^ One who carelessly leaves open a water-pipe may be liable for the dam- ages.^ We have a like illustration in the case of a — § 839. Reservoir Mill-pond. — The owners of a mill, to ren- der their supply of water more complete, constructed an artificial pond, and diverted water into it. The place was a coal-mining region, where there were numerous vertical shafts and lateral workings. But it was not known to the mill-owners that there had been any mining at the particular spot selected for the reservoir. They employed a competent engineer and a competent contractor, for whose negligence they would be responsible to third persons as for their own, according to explanations in a preceding chapter.* While these servants were proceeding in their work, they came upon five old shafts running vertically downward ; " but, though the timber sides of three of them remained, the shafts themselves were filled up with soil. And it was not known to or suspected by the de- fendants, or any of the persons employed by them in making the reservoir, that they led down to old coal workings under its site;" though, palpably, they were thus put upon their inquiry, and placed under a duty to any one whose interests might be imperilled to proceed cautiously. A referee, on whose statement of the facts the case was decided, found that " with reference to the shafts met with, reasonable and proper care and skill were not exercised by the persons they employed, to provide for the sufficiency of the reservoir to bear the pres- sure of water which, when filled to the height proposed, it would have to bear." So the work went on with no precautions, and 1 Terry v. New York, 8 Bosw. 504. Bobbins v. Mount, 4 Rob. N. Y. 553 ; ^ Carstairs v. Taylor, Law Rep. 6 Eillion v. Power, 1 Smith, Pa. 429. Ex. 217. * Ant«, § 609. » Moore v. Goedel, 34 N. Y. 527 ; 384 CHAP. XXXVII.J LANDS, BUILDINGS, FENCES. § 839 precisely as though no artificially created defect in the bottom had been discovered. The water, when the reservoir was partly filled, rushed down these imperfectly closed old shafts, and along lateral workings, until it flooded and destroyed an- other person's mine. This person brought his suit for the dam- ages, which plainly, on the ground of negligence, he ought to recover, and he recovered them. In the Court of Exchequer the majority of two judges to one decided agaiust him ; the Exchequer Chamber reversed this decision, and the House of Lords sustained the Exchequer Chamber.^ But there was in this case a special feature, not uncommon in the reports ; namely, that while a decision in distinction from the language of the judges pronouncing it is the part of the case which evi- dences the law and constitutes the precedent,^ the judges in this case assigned reasons antagonistic to the reasonings of the law, therefore not to be followed in subsequent litigation. And this adjudication has been supplemented by another special consequence, not unfrequently met with in our books ; namely, that subsequent judges and writers have treated the language of the judges as though it were decision, and cast a shadow over the law which in fact the case has settled.^ Fur- ther as to which, — ' Fletcher v, Sylands, 3 H. & C. the peril of codification especially at the 774, 11 Jut. n. s. 714, in the Ex. ; Law present chaotic period of the common Eep. 1 Ex. 265, 12 Jur. N. s. 603, in law, and of the need of jurist writings Ex. Ch. ; Eylands v. Fletcher, Law explaining the reasonings of the law, in Rep. 3 H. L. 330, in H. of L. And distinction from the imperfect reason- see Wilson V. New Bedford, 108 Mass. ings too frequently found in our judi- 261 ; Shipley v. Fifty Associates, 106 cial reports and other law hooks. I Mass. 194 ; Ererett ». Hydraulic, &c. propose, in the present note, to illus- Co. 23 GaL 225 ; McKnight v. Eatcliif, trate some of these things by this 8 Wright, Pa. 156, 168 ; Smith v. Rylands and Fletcher case. It has he- Fletcher, Law Eep. 7 Ex. 305, revei-sed, come a very leading case, being cited in 9 Ex. 64 ; Cahill v. Eastman, 18 Minn, most of the English and American ones 324. subsequently decided. It is commonly * Bishop Con. § 12. understood not to be generally accepted » Beasonings of the Ijaw and of in this country. As to which, the reader the Judges distinguished — Jurist will find a statement in Pennsylvania ■Work (Kylands v. Fletcher). — Coal Co. v. Sanderson, 3 Am. Pa. 126. In the closing chapters of this volume In truth, the point which it decides, as ■will be found some explanations of the stated in the text, is law in all our common law, of its manner of construe- States. Its judicial dicta have been in tion and apparent growth, of books, of form accepted by the judges in a few 25 385 840 PARTICULAR PLACES AND THINGS. [BOOK V. § 840. Degree of Care. — No adjudication is required to make it plain that, if one takes water through a service pipe of them, but rejected in most ; in the facts of actual decision, they are no- where followed. Looking into the ob- servations in the House of Lords, we find Lord Chancellor Cairns, in accord- ance with the view in the text, say- ing : "As regards the engineer and the contractor, we must take it from the case that they did not exercise, as far as they were concerned, that reasonable care and caution which they might have exercised, taking notice, as they appear to have taken notice, of the vertical shafts filled up in the manner which I have mentioned." p. 338. In a sub- sequent pai-agraph he adds : " And if, in consequence of their doing so, or in consequence of any imperfection in the mode of their doing so, the water came to escape and to pass off into the close of the plaintiff, then it appears to me that that which the defendants were doing they were doing at their own peril ; and, if in the course of their doing it, the evil arose to which 1 have referred, the evil, namely, of the escape of the water and its passing away to the close of the plaintiff and injuring the plaintiff, then for the consequence of that, in my opinion, the defendants would be liable." p. 339. Now, tak- ing these observations in connection with the rule that the language of a judge is always to be^ interpreted as qualified and limited by the facts in contemplation, post, § 1322 ("the lord chancellor's judgment in Eylands v. Fletcher must be read and understood with reference to the case before him," Hall, V. C. in Crompton v. Lea, Law Rep. 19 Eq. 115, 127), we find here a distinct enunciation of the proposition of the text, that one who builds a mill- dam reservoir negligently does it at his " own peril," and he must indemnify another who is injured by the escape of the water. Thus far, the opinion fur- nishes no ground for criticism. But it proceeds to indorse some not well con- 386 sidered language of Blackburn, J. who gave the opinion in the Exchequer Chamber. Lord Cranworth, who fol- lowed him, also indorsed Blackburn, and stated the rule to be : " If a person bi-ings, or accumulates, on his laud any- thing which, if it should escape, may cause damage to his neighbor, he does so at his peril. If it does escape, and cause damage, he is responsible, how- ever careful he may have been, and what- ever precautions he may have taken to prevent the damage." p. 340. Here we come to the need of jurists. The func- tion of a judge is to decide particular cases, each case depending ou its own narrow facts. His instrument, to speak metaphorically, is the microscope. He sees and marks the very feet of the fly, but his eye does not sweep the hoiizon. These judges noted the facts of this case sufficiently to reach a correct conclu- sion. They applied the microscope, as duty required, and the application was an absolute success. If they had there stopped, they would have done their whole duty admirably. But when a judge, instead of stopping when he is through, marches on and usurps the ground of the jurist, he should expect neither the help of Heaven nor the ap- proval of eai-th ; like any other tres- passer, he is prima fade in the wrong, though an investigation may in the par- ticular instance by chance show him to be in the right. " If," says this judi- cial proposition, "a person brings, or accumulates, on his land anything which, if it should escape, may cause damage to his neighbor, he does so at his peril." Thereupon, leaving now the judicial words aod particularizing, if a man finds his house cold, and brings into it a fire, or if he keeps in a cave in his woods ii keg of gunpowder for sale to customers, or if he has by his bedside a revolver for protection against burg- lars, or if in the country he runs by a steam engine a threshing-machine or CHAP. XXXVII.] LANDS, BUILDINGS, FENCES. §840 for use in his house, he will be negligent should he employ a pipe simply adequate to a pressure of ten pounds to the square inch, in the case of a pressure of one hundred pounds. And this principle is universal. Large masses of water are im- mensely powerful and highly dangerous ; hence they require, when held by artificial means, corresponding strength in the restraining substances, and the greatest care and precaution, together with ample scientific learning, in those who plan and execute the work.^ And precautions should be taken for all grist-mill or saw-mill, or if he manu- factures rockets wherewith to celebrate "the glorious fourth," or if he has a water-pipe for his bath tub, or a gas pipe for illuminatioi], — each being a thing "which, if it should escape, may cause damage to his neighbor, — he does so at his peril. If it does escape, and cause damage, he is responsible, how- ever careful he may have been, and whatever precautions he may have taken to prevent the damage." It is needless to say that such is not the law in any common-law country. We have seen, ante, § 833, note, that something like this was once held iu England as to fire, but it is so nowhere now. Black- bum's leading illustration of the doctrine he lays down, "the case," he obsei'ves, "that has most commonly occurred, and which is most frequently to be found in the books, is as to the obligation of the owner of cattle which he has brought on his land, to prevent their escaping and doing mischief. The law as to them seems to be perfectly settled from early times ; the owner must keep them in at his peril, or he will be answerable for the natural consequences of their es- cape ; that is, with regard to tame beasts, for the grass they eat and tram- ple upon, though not for any injury to the person of others, for our ancestors have settled that it is not the general nature of horses to kick, or bulls to gore ; but if the owner knows that the beast has a vicious propensity to attack man, he will be answerable for that too." p. 280 of Law Eep. 1 Ex. Look- ing back to a preceding section, ante, § 801, we see that this is the rule estab- lished by the common law in the absence of fences. If one ' ' brought on his land " a hungry ox untethered, and there was better pasturing on the adjoining land of a neighbor, the natural and probable consequence would be that, in the ab- sence of a fence, the animal would walk over and eat and trample upon the neighbor's grass. This would be an act of gross negligence in the owner of the ox, not requiring so much as to be sub- mitted to a jury. So that this case does not go even one step toward estab- lishing the learned judge's rule. And the rest of his illustrations may be sev- erally disposed of in the same or some similar manner. The reasoning, there- fore, in this Fletcher and Eylands case, so far as it proceeds on ground other than negligence, is the individual rea- soning of the judges, and not the rea- soning of the law. If the same men should descend from the bench and be- come jurists, they would cast aside the microscope, always necessary in the ju- dicial office, and of a value exceeding computation, and, taking the field-glass instead, sweep the horizon with a result beneficial to the law in a degree im- measurably beyond anything in the present contemplation of the legal profession. 1 New York v. Bailey, 2 Denio, 433; WendeU v. Pratt, 12 Allen, 464. 387 § 842 PAETICULAB PLACES AND THINGS. [BOOK V. extraordinary exigencies in the future, reasonably to be antici- pated.^ Then, — § 841. Act of God. — If, after all precautions have been made, excluding the idea of negligence, the overwhelming power which is technically called the act of God ^ intervenes and works injury, the party is not .responsible. It was so held where, after one had collected large pools of water on his land, a sudden and extraordinary rainfall, amounting to vis major, swelled the feeding stream and swept away the em- bankments, resulting in damage to another.^ These cases will sometimes lead to — § 842. Conflicting Bights. — We saw in a preceding chapter that, in cases not involving the question of negligence, there will sometimes arise conflicts of rights between contiguous owners. And the only rule which we could discover for them was, that the right which the law deems superior, in which- ever party it lies, will prevail, and the inferior must yield.* Now, as a general principle, it is plain that one engaged in mining for coal cannot throw a mixture of water, sand, and clay down upon the land of another, destroying it for cultiva- tion, and escape responsibility to him.^ But how, if the for- mer's land is valuable for mining, and useless for every other purpose, and he can work it only by inflicting harm on a neighbor ? The majority of the Pennsylvania court held, that one operating a coal mine in the ordinary manner may, upon his own land, pump the water from it into a stream which forms the natural drainage of the basin wherein it is situated, though thereby swelling the stream,® and so impairing the quality of its water as to render it unfit for domestic use, to the great injury of the lower owners. But this was strictly coal land, good for nothing else, and it could be mined in no > Ante, § 440 ; Gray v. Hams, 107 * Ante, § 105-107. Mass. 492. And see Pixley v. Clark, ' Robinson v. Black Diamond Coal 35 N. Y. 520. Co. 50 Cal. 460 ; Butler v. Peck, 16 2 Ante, § 166-172. Ohio State, 334. ' Nichols V. Marsland, Law Eep. 10 = -^q^ as a general rule permis- Ex. 255. Similar to this case is Ma- sible. Livingston r. McDonald, 21 dras By. v. Carvatenagarnm, Law Rep. Iowa, 160. 1 Ind. Ap. 364, 9 Moak Eug. 289. 388 CHAP. XXXVII.] LANDS, BUILDINGS, FENCES. §843 Other way. So that to prevent this use by the owner would in effect take from him his property .^ § 843. ■Walla and BuUdings. — One who erects on the border of his land any structure which, if it falls, will injure adjoin- ing premises or persons thereon, must exercise reasonable care in its original construction, and subsequently in keeping it in a safe condition. And if he fails in this, or in the suit- able preservation of what another has put upon his land, whereby neighboring persons or things suffer damage by its falling, he must make recompense.^ Plainly, within the rule that the care should be commensurate with the gravity of the consequences of an accident,^ the caution required to avoid the charge of negligence will in some of these circumstances be very considerable. But where a fire had left a wall stand- ing,* and the owner caused it to be carefully inspected by a competent person who, as well as himself, believed it to be safe, he was held not answerable for an injury suffered by another through its falling.^ > Pennsylvania Coal Co. v. Sander- son, 3 Am. Pa, 126, ovemiling Sander- sou r. Pennsylvania Coal Co. 5 Nori-ia, Pa. 401. And see Crompton v. Lea, Law Rep. 19 Eq. 115 ; Gerrish v. Un- ion Wharf, 26 Maine, 384 ; Victory v. Baker, 67 N. Y. 366. 2 Lynds v. Clark, 14 Mo. Ap. 74 ; Mullen V. St. John, 57 IS. Y. 567. » Ante, § 840. * Ante, § 415. 6 Schell V. Second Nat. Bank, 14 Minn. 43. There are cases wherein the judges seem to have lapsed into a course of inconsiderate dicta on this subject, similar to those explained in a note a little way back. Ante, § 839, note. Thus, in Kappes v. Appel, 14 Bradw. 170, it was held, in accordance with the text, that the owner of a house which from want of repair falls on his neigh- bor's, is liable for the damages. For it is negligence, beyond all question, to per- mit one's house to stand without repair till it tumbles. Thereupon, in a head- note to this case, we read: "An owner of land has the same duty to keep on his own land a house or wall built thereon, as the filth in his cesspool or the water in his reservoir or the snow upon his TOof. His duty is to keep it in such a state that his neighbor may not be injured by its fall." Here is a bringing in of foreign matter, not all of which is relevant. We have seen how it is with the reservoir. Ante, § 839. As to the roof, if a man so constructs it that the snow will be projected on his neighbor's ground, there is no question of negligence ; it is the same as though he so pointed a fire-arm that the ball would enter his neighbor's barn. There is not the slightest analogy between tliis case and that of a negligently con- structed or negligently kept wall or house. Again, in Gorham v. Gros.s, 125 Mass. 232, a landowner had contracted with a firm of masons to build a party wall ; it was done, and the wall ac- cepted. Then the wall fell on the ad- joining premises and did damage, to recompense which the owner was sued. 389 § 846 PARTICULAR PLACES AND THINGS. [BOOK V. § 844. Putting on One's Own Chrownd that from which Nat- ural or other like Forces will bear Injury to Another : — Nuisance. — This is a wrongful act known under the name of nuisance. It has already been treated of in a separate chapter.! § 845. Doing on On^s Own Ground what may bring harm, to other Persons or their Property there : — As to Trespassers. — The owner of land is entitled to keep it in whatever condition he will, so long as he violates no duty to another. And he owes no duty to one who comes upon it without right ; so that such a person, if injured in consequence of the ill condition of the premises, can maintain no action against him.* Thus, one crossing another's grounds unau- thorized fell into a pool of water over which a crust had formed resembling dry land, and it was held that the owner was not responsible for the damage, being under no obligation to keep the place safe for trespassers.^ The same rule applies to trespassing animals ; if a horse, trespassing, falls into a pit and dies, or a trespassing cow is killed by drinking maple syrup negligently left in a sugar orchard, no right of action accrues to the owner of the animal.* This doctrine is limited to cases in which the land-owner does not step aside to inflict a purposed harm. But — § 846. Wilful Injury to Trespasser. — We saw in our earlier " There was evidence,'' said the learned same ill work, in an opinion which, judge in delivering the opinion, " tend- properly understood, is mere dictum. ing to show that the fall of the wall i Ante, § 409-432. was occasioned by negligence in buUd- ^ Ante, § 60 ; Hargreaves v. Deacon, ing it without sufficient stays or sup- 25 Mich. 1 ; Victory v. Baker, 67 N. Y. ports, or in building it in such cold 366 ; Lary v. Cleveland, &c. Rid. 78 weather that the mortar froze as soon Ind. 323 ; Evansville, &c. Rid. v. as laid and was afterwaixis softened by GriflBn, 100 Ind. 221 ; Maenner v. Car- a sudden thaw." p. 238. The owner roll, 46 Md. 193 ; Kohn v. Lovett, 44 being deemed responsible for this negli- 6a. 251 ; Gillespie v. McGowon, 4 Out. gence, it was held, as of course, that he Pa. 1 44. must pay the damages. But, just as ^ Union Stock-yards, &c. Co. v. in the reservoir case of Rylands and Rourke, 10 Bradw. 474. Fletcher, explained in the preceding * Blyth v. Topham, Cro. Jac 168 ; note, the learned judge who delivered Bush v. Brainard, 1 Cow. 78. Com- the opinion was not content to leave pare with Jones v. Nichols, 46 Ark. the decision here ; he travelled on, 207 ; Beck v. Carter, 68 N. Y. 283 ; usurping jurist ground, and did the Hanghey v. Hart, 62 Iowa, 96. 390 CHAP. XXXVII.] LANDS, BUILDINGS, FENCES. § 847 chapters that there is a marked distinction between a careless and a wilful injury .1 And though one is unlawfully on an- other's premises, the latter will be answerable should he, in- stead of removing him by just enough of force to accomplish the purpose, needlessly beat him,^ or wilfully inflict on him any other physical harm.^ This sort of question occasionally arises where an owner undertakes to protect his grounds or buildings by some automatic force. If he could invent a ma- chine possessed of a perfect knowledge of the law and of facts, standing at the beginning of a difficulty in the exact position occupied by the jury and the court of last resort after it is over, there would be- a vast diminution in the expense of sup- porting police and detectives. One of the methods, sometimes resorted to, is the setting of — § 847. Spring-guns. — A spring-gun is an engine which may do grievous damage to one treading upon its wire. Looking at the question in the light of principle, if a man sets such a gun to guard his dwelling-house, and a burglar, attempting to break in at night, is by it injured or killed, the owner is under neither a civil nor a criminal liability ; because he had the right to take life, or use any less force, for the protection of his habitation and to prevent a felony. And so the law is be- lieved to be.* Yet whatever be the location of the spring-gun, it being laid, not accidentally or carelessly, but with the pur- pose of inflicting harm, should now the trespasser, unwarned, receive from it an injury which would be unlawful were it to proceed from the owner's own hand if present, a liability is, in principle, and it is believed on the authorities, incurred.^ But if the person trespassing is notified that there are spring- guns, the case has been deemed to have become analogous to that of a barbed wall, which a man knowing its condition at- tempts to scale in the night ; the spring-guns create a barrier which he can pass only at his peril.^ What qualification this 1 Ante, § 16, 142-154. ^ Bird v. Holbrook, 4 Bing. 628 ; 2 Ante, § 61, 824 ; Clark v. New Jay v. Whitfield, stated, 3 B. & Aid. - York, &c. Rid. 40 Hun, 605. 308 ; Hooker v. Miller, 37 Iowa, 613 ; « Hargreaves n. Deacon, 25 Mich. Yictory v. Baker, 67 N. Y. 366, 370. 1^ 4. 6 iiott V. "Wilkes, 3 B. & Aid. 304. * 1 Bishop Crim. Law, § 854-856. And see Jordin v. Crump, 8M. &W. 391 § 849 PARTICULAR PLACES AND THINGS. [BOOK V. doctrine may require there are no means of precisely stating on authority. In most circumstances, the announcement of a purpose to do upon a contingency what would otherwise be unlawful is no protection to the subsequent doer. Should one threaten to shoot another on finding him walking across his field, then execute the threat, he would be answerable, at least, to the criminal law.^ And something of this doctrine must, in some forms of the fact, find its way into the civil suit. For many years back, down to the present time, Eng- lish statutes have made the setting of spring-guns criminal. § 848. As to Persons rightfully on Premises. — The owner of land owes to all persons rightfully upon it the duty to keep it in a condition reasonably safe to them. And one injured through a neglect of this duty may have of him compensation.* Thus, — § 849. Instances. — If the proprietor of a wharf negligently permits it to rot down, one rightfully on it, injui'ed by the fall, may recover of him the damages.® Upon a wharf where for- eign vessels were unladen, a custom-house ofiicer was in the night searching for smuggled goods, and he fell into the water through an opening left unlighted and unguarded : the wharf- owner was held answerable to him for the injury.* Proprie- tors of a fair ground allotted a portion to target-shooting, but neglected to give notice thereof. A person admitted hitched his horse among other horses, and it was shot. The propri- etors were adjudged liable.^ It is the same if, in like circum- stances, a negligently constructed building breaks down and does damage.^ More particularly as to what is negligence, — 782 ; Loomia v. Terry, 17 Wend. 496 ; Mich. 261 ; Post v. Stockwell, 44 Hun, Palmer v. Dealing, 93 N. Y. 7 ; Balti- 28 ; Johnson v. Bruner, 11 Smith, Pa. more, &c. EM. v. Bose, 65 Md. 485; 58; Learoyd o. Godfrey, 138 Mass. 315. Taylor v. Carew Manuf. Co. 140 Mass. » Albert v. The State, 66 Md. 325. 150. " Low V. Grand Trunk Ey. 72 Maine, 1 1 Bishop Grim. Law, § 875, 876. 313. And see Simpson v. The State, 59 Ala. * Conradt v. Clauve, 93 Ind. 476. 1 ; Johnson v. Patterson, 14 Conn. 1. " Latham v. Roach, 72 III. 179 ; ^ Harris v. Perry, 89 iN. Y. 308, Currier ». Boston Music Hall Assoc. 312 ; Welch v. McAllister, 15 Mo. Ap. 135 Mass. 414. In Edwards v. New 492 ; Stratton v. Staples, 69 Maine, 94 ; York, &c. Eld. 98 N. Y. 245, the court Shattuck V. Eand, 142 Mass. 83 ; Brod- was divided as to the responsibility of erick v. Detroit Union Eld. &c. Co. 56 the lessor of the building. See also 392 CHAP. XXXYII.] LANDS, BUILDINGS, FENCES. § 853 § 850. ITon-compliance with Law. — Within the principle that to omit what a statute commands is negligence,^ if one builds in disobedience, — for example, not providing the law- required elevator railings or fire-escapes, — then if injury to another follows therefrom, his liability for the damages is, as respects the element of negligence, fixed. But the injured person, to recover them, must also have been rightfully in the place, and free from Contributory negligence.^ § 851. 'Within structure. — The arrangements within a building where workmen are employed, or other people are coming and going, should be made with a view to avoiding accidents. A breach of this duty will render the proprietor answerable to one injured thereby, if properly at the place of the accident, and not contributorily negligent. The particu- lars are numberless and varying.* Also, — § 852. The Approaches — to the building, so far as they are imder the control of the proprietor, should be made reason- ably safe to persons rightfully using them. A neglect of this duty creates the responsibility we are now considering.* § 853. Enticement. — The proprietor who entices a person or thing upon his premises cannot treat the case as one of unlawful intrusion. Thus, if on his own land near a highway or a neighboring house he sets a trap baited with meat wliich will send an odor out into the air, and a dog that smells it is caught, he is answerable to the owner of the dog.* In like manner, while the mere neglect to notify trespassing men off one's premises will not create a liability to them,^ any acts Francis v. Cockrell, Law Eep. 5 Q. B. comb, 48 Vt. 127 ; Clark v. Famous 501. Shoo, &c. Co. 16 Mo. Ap. 463 ; Wanna- 1 Ante, § 140, 445, 652. maker v. Burke, 1 Am. Pa. 423 ; Clark 2 McRickard v. Flint, 13 Daly, 541 ; v. Barnes, 37 Hun, 389 ; Johnson v. Taylor v. Carew Manuf. Co. 143 Mass. Bruner, 11 Smith, Pa. 58. 470 ; Willy v. Mulledy, 78 N. Y. 310 ; * Buckingham v. Fisher, 70 111. 121; Parker r. Barnard, 135 Mass. 116. And Chapman v. Eothwell, Ellis, B. & E. see Lee v. Smith, 42 Ohio State, 458. 168 ; Kohn v. Lovett, 44 Ga. 251. « THeSv. Broom, 70 Ga. 2S6 ; Taylor ^ Townsend v. Wathen, 9 East, 277, V. Carew Manuf. Co. 140 Mass. 150 ; 280, 281. Russell V. Tillotson, 140 Mass. 201 ; ^ Union Stock-yards, &c. Co. v. Handyside v. Powers, 145 Mass. 123 j Rourke, 10 Bradw. 474 ; Pittsburgh, Ryan v. Wilson, 87 N. Y. 471 ; Palmer &c. Ry. v. Bingham, 29 Ohio State, V. Dealing, 93 N. Y. 7 ; Pierce v. Whit- 364. 398 § 855 PABTICULAB PLACES AND THmGS. [BOOK V. holding out an inducement or enticement will.* This rule has a wide application to — § 854. Young Children. — A child too young to be controlled by reason, therefore not improperly led by its instincts, re- ceives from the law the protection which its special nature requires. For example, a man who leaves on his own ground open to the highway, or upon or beside any public place, a dan- gerous machine likely to attract children, will be liable to one injured by playing with it, if he neglected precautions against such an accident.^ On this principle, railroads are held re- sponsible, under proper circumstances, for injuries to young children playing with their turn-tables.^ But where there is nothing in the nature of allurement, an owner of land or other property is not obliged to encumber it with special safeguards for trespassing children, who will have against him only the same claims as adults under the like circumstances.* § 855. Removing Things from one's Own Chound: — Another's Effects. — One who discovers on his own premises what belongs to another may put it off, but not in a way to do it or its owner needless damage.^ Thus, a man coming into possession of land, and finding thereon a block of stone of another, may remove it to some adjacent spot, but not to a distant one.® When the thing has been properly taken to a suitable place, and there left for the use of the owner, if the latter does not employ reasonable diligence in taking it away, 1 Evansville, &c. Rid. v. GrifEii, 100 Minn. 481 ; Mangan v. Atterton, Law Ind. 221 ; Campbell o. Portland Sugar Eep. 1 Ex. 239 ; Miller «. Woodhead, Co. 62 Maine, 552 ; Murphy v. Boston, 104 N. Y. 471 ; Gillespie v. McGowan, &c. Eld. 133 Mass. 121. 4 Out Pa. 144 ; Miles v. Atlantic, &c. 2 Coppner v. Pennsylvania Co. 12 Rid. 4 Hughes, 172 ; GaUigan v. Meta- Bradw. 600 ; Keffe v. Milwaukee, &c. comet Manuf. Co. 143 Mass. 527. And Ey. 21 Minn. 207 ; Porter o. An- see Fallon v. Central Park, &c. Eld. 64 heuser-Busoh Brewing Assoc. 24 Mo. N. Y. 13 ; Powers v. Hai-low, 53 Mich. Ap. 1. 507 ; Bransom v. Labrot, 81 Ky. 638 ; 8 Stout V. Sioux City, &c. Rid. 2 Eudd ». Eichmond, &c. Eld. 80 Va. DD. 294 ; Nagel v. Missouri Pac. Ey. 546 ; Mackey v. Vicksburg, 64 Missis. 75 Mo. 653 ; Gulf, &c Ry. v. Styron, 777. 66 Texas, 421 ; St. Louis, &c. Rid. v. ^ Berry v. Carle, 3 Greenl. 269 ; Bell, 81 111. 76. Grier v. Ward, 23 Ga. 145. * Chicago, &c. Rid. v. McLaughlin, ^ Porsdick v. Collins, 1 Stark. 173. 47 111. 265 ; Emerson v. Peteler, 35 394 CHAP. XXXVII.] LANDS, BUILDINGS, FENCES. § 858 and from the neglect he suffers loss, he will be without remedy.^ § 856. Own Soil. — It is within fundamental principles that an owner may take away anything from his land, even the soil, when thereby he does not injure another.^ And some- times he may, even to another's damage.^ For example, the owner of mineral lands has been held entitled to remove all the minerals, though thereby water accumulates and passes off to the injury of an adjoining owner.* We need not con- sider this class of cases further here, something more of them will appear in the next chapter. § 857. Something 'of the Parties : — Participation. — We saw, in a preceding chapter,^ on what principles the various actors in a tort are liable for the damages. One, to be holden, must in some way have participated in it, but the form of participation is immaterial. Thus, — § 858, Owner of Building — Tenant — Grantee. — If the painter of a house fastens his hanging staging to the cornice, which was made for ornament and not for this sort of use, the house-owner will not be liable should it fall and injure him.^ And where one making repairs in a penitentiary fell down the elevator opening, he was held to have no claim against a con- tractor for the services of the convicts, who had over the elevator no control.' So a landlord is not liable for a nuisance created by his tenant, where the latter, and not himself, is under the duty to repair ; * as, where a neighbor's cellar is overflowed by a leaky supply pipe.^ But in cases of this sort, a tenant in possession under a lease requiring him to keep the premises in repair, is answerable ; '"^ yet not where he has a 1 United States Manuf. Co. v. Ste-, 8 Kalis v. Shattack, 69 Cal. 593 ; vens, 52 Mich. 330. Pretty v. Bickmore, Law Eep. 8 C. P. ' Ante, § 12, 98, 102. 401 ; Moore v. Oceanic Steam Nav. Co. 8 Antei § 14, 102-107. 24 Fed. Kep. 237. Yet see Ingwersen • Lord' V. Carbon Iron Manuf. Co. v. Rankin, 18 Vroom, 18 ; Leonard v. 15 Stew. Ch. 157. Decker, 22 Fed. Eep. 741. s Ante, § 517 et seq. ' Harris v. Cohen, 50 Mich. 324. 6 Fanjoy v. Scales, 29 Cal. 243. See And see Hanse v. Cowing, 1 Lans. 288 ; Khron v. Brock, 144 Mass. 516. Mnller v. Stone, 27 La. An. 123. ' Cunningham v. Bay State, &c. Co. w Fisher v. Thirkell, 21 Mich. 1 ; 93 N Y 481. And see Sinton ». But- Pretty ». Bickmore, supra ; Union Brass ler, 40 Ohio State, 158. Manuf. Co. v. Lind.say, 10 Bradw. 583. 395 § 880 PARTICULAR PLACES AND THINGS. [BOOK V. mere holding from month to month without covenants.^ One ■who sells or leases to another a house or other thing which, or in which, is a nuisance, under circumstances indicating his concurrence in its continuing, must pay the damages to a third person injured thereby.* But the lessee or grantee him- self cannot commonly maintain against the grantor or land- lord an action in this sort of case.^ § 859. other Questions, — more or less like these, are liable to arise. But their affinity is with the procedure, there- fore they will not be particularly examined in the present connection.* § 860. The Doctrine of this Chapter restated. The buildings on land are a part of the land itself. Fences are erected to prevent cattle straying or entering. Without a fence, the owner is at common law required to keep his cattle on his own grounds, and if they trespass on another's he is liable for the damages. But this is not held in all our States ; and, in all, there are statutes creating a duty to fence, and burdens on those who disobey. And still, whether there are fences or not, no person may lawfully, without a permis- sion either express or implied, go upon the land of another, or cast or cause to flow upon it any physical substance, or over it, while inhabited, any noxious or offensive odors or vapors. One who permits another to come upon his land must see that it is in a condition physically safe ; and if, through any neglect in the discharge of this duty, the other after so coming is injured while himself free from negligence, 1 Griffith V. Lewis, 17 Mo. Ap. 605. 26 Ohio State, 393 ; Bartlett v. Boston 2 Helwig V. Jordan, 63 Ind. 21 ; Gas-light Co. 122 Mass. 209 ; Kent v. Fow V. Roberts, 12 Out. Pa. 489 ; Mar- Todd, 144 Mass. 478 ; Woram v. Noble, tin V. Blattner, 68 Iowa, 286 ; Knauss 41 Hun, 398 ; Sullivan v. Davis, 29 V. Brua, 11 Out. Pa. 85. Kan. 28 ; Hussey v. Ryan, 64 Md. 426 ; * Cowen V. Sunderland, 145 Mass. Odell v. Solomon, 99 N. Y. 635 ; Mc- 363 ; Kabus ■/. Frost, 50 N. Y. Super. Gill v. Compton, 66 111. 327 ; Moulton 72 ; Tuttle v. Gilbert Manuf. Co. 145 v. Moore, 56 Vt. 700 ; Sarauelson v. Mass. 169. Cleveland Iron Min. Co. 49 Mich. 164; * Edwards v. New York, &o. Rid. Parcell v. Grosser, 13 Out. Pa. 617. 98 N. Y. 245 ; Bnrdick v. Cheadle, 396 CHAP. XXXTII.J LANDS, BUILDINGS, FENCES. § 860 he must recompense him. A trespasser on the land may be gently turned back, or, refusing to depart on request, forced back, in a way not needlessly to injure him ; but he cannot be unnecessarily beaten, or in any circumstances killed. Dwelling-houses are in law places of retreat and asylum from persons not of the family, but other buildings furnish little or no protection to their occupants. One may use his own land as he will, except that, as in all the other activities of life, he must exercise carefulness, so as not unnecessarily to injure another. These general propositions have their detailsj a repetition whereof is not here desirable. 397 § 863 PARTICULAR PLACES AND THINGS. [BOOK V. CHAPTER XXXVIII. EASEMENTS AND SERVITUDES. § 861. Introduction. 862-865. In General. 866-876. Private Ways. 877-903. Under anS Upper Waters. 904-919. Partitions and Supports. 920-924. Light and Air. 925. Doctrine of Chapter restated. § 861. How Chapter divided. — We shall consider, I. The Doctrine in General ; II. Private Ways ; III. Under and Upper Waters ; IV. Partitions and Supports ; V. Light and Air. I. The Doctrine in General. § 862. Terms. — There are refinements in the use of the terms " easement " and " servitude," not entering into the law itself, as to which writers differ. Explanations of them would be foreign to the purposes of this chapter. Employing these words in a way deemed by the present writer justifiable, while yet for it in exact form there is not the precedent of a univer- sal usage, — § 863. Defined. — Tlie terms " easement " and " servitude " are correlates ; the easement being a right in the nature of an estate, and the servitude its corresponding burden. More exactly, an easement is an incorporeal hereditament or chattel interest, attached to the person of an individual or to the public, or to the land of either, in another's land ; a servitude is the burden on land imposed by the easement. There can be no 398 CHAP. XXXVm.J EASEMENTS AND SERVITUDES. § 864 easement without a servitude, or servitude without an ease- ment.^ Thus, — § 864. niuatrations. — The riglit of the occupant of one piece of land to use water ,2 or the drains,^ or light and air,* from another ; of one person to go and remain at pleasure * or deposit things ® on another's land, or bring his vessels to another's wharf,^ or have a way over land of another ; ^ or of one land-owner to compel an adjoining one to maintain a par- tition fence,^ — each of these is an easement. And the illus- trations are numberless. We shall not consider all in this chapter ; since — 1 I am not aware that we have for these terms any definitions which have become standard. Kent says : " Under the head of easements may be included all those privileges which the pubUc or the owner of neighboring lands or tene- ments hath in the lands of another, and by which the servient owner, upon whom the burden of the privilege is imposed, is obliged to suflfer or not to do something on his own land for the advantage of the public, or of the domi- nant owner to whom the privilege be- longs. These easements are incorporeal rights, and imposed upon corporeal property for the benefit of the public or of other corporeal property." 3 Kent Com. 419. Washburn, Easements, 3, says: "The essential qualities of ease- ments are these : 1st, they are incorpo- real ; 2d, they are imposed on corporeal property, and not upon the owner thereof ; 3d, they confer no right to a participation in the profits arising from such property ; 4th, they are imposed for the benefit of corporeal property ; and 5th, there must be two distinct tenements, — the dominant, -to which the right belongs, and the servient, upon which the obligation rests. But it is not necessary that the dominant and servient estates should be in conti- guity with each other." It is perceived that this defining, contrary to mine, excludes the possibility of a man's own- ing a mere peiBonal easement, or ease- ment in gross ; as, for one who has no land, or without respect to land of his own, to pass over land of another. But it is not disputed that rights of this sort exist, and I see no good reason for excluding them from the definition. Washburn, at the place just cited, pro- ceeds : "A contract for a right to pass over the lands of another is an easement extending only to a temporary disturb- ance of the owner's possession. The grantee of such an easement is not the owner or occupant of the estate over which the way is used." See also Dark V. Johnston, 5 Smith, Pa. 164 ; Big Mountain Imp. Co.'s Appeal, 4 Smith, Pa. 861 ; Pierce v. Keator, 70 N. Y. 419 ; Parsons v. Johnson, 68 N. Y. 62 ; Tabor v. Bradley, 18 N. Y. 109, 111. ^ Manning v. Wasdale, 5 A. & E. 758 ; Race v. Ward, 4 Ellis & B. 702 ; Ivimey v. Stocker, Law Eep. 1 Ch. Ap. 396 ; Steams v. Janes, 12 Allen, 582. * Pyer v. Carter, 1 H. & N. 916. * Parker v. Foote, 19 Wend. 309 ; Dyer v. Sanford, 9 Met. 395. s Fuhr V. Dean, 26 Mo. 116. * Big Mountain Imp. Co.'s Appeal, 4 Smith, Pa. 361 ; Pollard v. Barnes, 2 Gush. 191. ' Sargent v. Ballard, 9 Pick. 251. 8 Esling V. Williams, 10 Barr, 126 ; Kieffer v. ImhofT, 2 Casey, Pa. 438 ; Cook u Chicago, &c. Rid. 35 111. 460. 9 Cheetham v. Hampson, 4 T. E. 318 ; Eider v. Smith, 3 T. B. 766, 768. 399 § 867 PABTICULAR PLACES AND THINGS. [BOOK V. § 865. What here. — Not all the law of easements is within the sphere of this work. Largely it pertains to contract, or to prescription, which is a contract proved by use ; and to the part of the law of contract commonly relegated to the head of real estate.^ Public ways are easements, yet they are partly within the criminal law : to the part which is civil, and non-contract, a chapter is assigned further on. We shall in this chapter, doubtless leaving behind something not wholly ir- relevant, consider simply, in addition to what has already been said, the easements indicated by its remaining sub-titles. II. Private Ways. § 866. Defined. — A private way is the easement of one person, or of any number of persons less than the public at large, to pass over the servient land of another, in the man- ner, at the times, on the location, and for the purpose, allotted or agreed for the particular way.^ It is either appurtenant or in gross. Thus, — § 867. Appurtenant. — Most ways are appurtenant ; that is, 1 Ante, § 6. churcli, to a private house or village, 2 Something of Deflnitiona. — The or to fields, then it is a private way." convenience, to the reader or practi- Austin's Case, 1 Vent. 189. Kent men- tioner, of having hefore him the sort of tions a private way as an "incorporeal condensed statement of the law of his hereditament " (we shall see, that it is subject which is commonly known hy not always such, but it may be a mere the term " definition," is so great that it life estate), and shortly says, that it is a marvel how scarce the truly service- " is a right of private passage over an- able definitions are in our books. I other man's ground." 3 Kent Com. 419. mean, those which present the full- Herein he follows Blackstone, who orbed idea, separated from whatever is terms it "the right of going over an- superfluous, and not a mere segment of other man's ground." 2 Bl. Com. 35. the sphere, either with or without need- And Washburn copies the same segment less attachments. I can find in the of a defining. Easements, 161. The books no definition of a private way only objection to this short definition answering this call ; though, partly in is, that it is a mere scrap of the idea, the nature of definition, or as defini- presenting no rounded view of the thing tions in part, we have many useful and meant. It satisfies the literary taste : instructive passages. Thus, from Lord for it is plain and direct, unincumbered Hale: " If a way lead to a market, and by verbiage, making little demand on were a way for all travellers, and did the attention, and not overloading the communicate with a great road, &c. it feeblest understanding. Its non-useful- is an highway ; but if it lead only to a ness is its only legal defect. 400 CHAP. XXXVIII.J EASEMENTS AND SERVITUDES. § 868 instead of being personal to the individual, they are appurte- nances of some particular land and inseparable therefrom, so that any one entitled to use the land as owner or other- wise may enjoy the ways over its servient lands.^ A convey- ance of the dominant land conveys its appurtenant ways ; ^ and, if a part is sold to one person and the rest to another, both purchasers may enjoy them,^ the ordinary rule being that a way appurtenant to the whole is appurtenant to every parcel of it however minutely divided.* The inclination of interpretation is to make every way appurtenant, instead of in gross ; ^ or, more strongly, a way will never be presumed to be in gross wheli it can be construed as appurtenant.^ But — § 868. In Gross. — A way may be, and sometimes is, in gross. The meaning of which is, that it is the way of a par- ticular individual, personal to him, and not attached to any land.^ Like a way appurtenant, it is an incorporeal right ; and plainly it may be for a stated number of years, or to ex- pire on a contingency,* or for the life of its owner. Perhaps there is no absolute impediment of reason to its being made hereditable ; as, where it is created by a deed to a man and his heirs. But this would be, at least, a great practical incon- venience in the law, and the courts ordinarily ^ refuse to permit it ; holding that, in all cases, whatever be the terms of its creation, it dies with the individual owner, nor during his 1 Shroder v. Brenneman, 11 Hams, Thorpe v. Brumfitt, Law Eep. 8 Ch. Pa. 348 ; Skull v. Glenister, 16 C. B. Ap. 6.50. N. s. 81. ° Sanxay v. Hunger, 42 Ind. 44. 2 Kent V. Waite, 10 Kck. 138 ; Lide It has been held that, where the owner V. Hadley, 36 Ala. 627 ; Rhea v. For- of a tract of land conveys half of it by syth, 1 Wright, Pa. 503; Moore v. Grose, a deed reserving a right of way across 43 Ind 30 ; Cannon v. Boyd, 23 Smith, it, and giving to the purchaser a cor- Pa. 179. responding right across the unsold half, * Watson V. Bioren, 1 S. & R. 227 ; both ways ai-e in gross. Wagner v. Underwood v. Carney, 1 Cush. 285; Hanna, 38 Cal. 111. And see Garrison Bartlett v. Prescott, 41 N. H. 493. ■». Eudd, 19 111. 558. 4 Whitney v. Lee, 1 Allen, 198 ; '3 Bl. Com. 241. Miller v. Washburn, 117 Mass. 371. * Hall v. Armstrong, 53 Conn. 554. And see PettingiU v. Porter, 3 Allen, ' In Massachusetts, a way in gross 349 ; McCarty v. Kitchenman, 11 is said to be hereditable and assignable. Wright, Pa. 239. Goodrich v. Burbank, 12 Allen, 459, B Washb. Easm. 161. And see 460, 461. 26 401 869 PARTICULAR PLACES AND THINGS. [book v. life is it assignable.^ Nor yet can the owner make it appur- tenant to his lands.^ § 869. Creation. — We need not minutely inquire into the methods of creating private ways. In brief, they are vary-" ing ; as, by grant,^ by reservation in a deed of the land,* by prescription which presumes a grant,^ necessity,^ a laying out under the authority of a statute." Evidently, in some of the States, there may be a private way by dedication,^ at least where it consists of the substitution of a new way for an old one ; ^ but the English and probably the general American doctrine is, that, though there may be a limited dedication of a public way,i" there can be no private way by dedication." 1 3 Kent Com. 420 ; 2 Bl. Com. 35, 36 ; Boatman v. Laaley, 23 Ohio State, 614 ; Post V. Pearsall, 22 "Wend. 425, 432 ; Garrison v. Eudd, 19 111. 658. 2 Ankroyd v. Smith, 10 C. B. 164, 14 Jur. 1047 ; Boatman v. Laaley, supra. " Senhouse v. Christian, 1 T. B. 560 ; Roberts v. Karr, 1 Taunt. 495 ; Duncan v. Louoh, 6 Q. B. 904 ; Dick- inson V. Whiting, 141 Mass. 414 ; Baker v. Frick, 45 Md. 337 ; Rowell v. Doggett, 143 Masis. 483 ; "Watts v. Kel- son, Law Eep. 6 Ch. Ap. 166. * Ante, § 867, note ; "Wiswell v. Minogne, 57 "Vt. 616 ; Myers v. Dunn, 49 Conn. 71 ; Brunton v. Hall, 1 Q. B. 792 ; Dand v. Kingscote, 6 M. & "W. 174 ; Bowen v. Conner, 6 Cnsh. 132. « Cheney v. O'Brien, 69 Cal. 199 ; Jamaica Pond, &o. Corp. v. Chandler, 121 Mass. 3 ; Zigefoose v. Zigefoose, 69 Iowa, 391 ; Black v. O'Hara, 64 Conn. 17 ; Parks v. Bishop, 120 Mass. 340 ; Gay V. Boston, &c. Rid. 141 Mass. 407 ; "Wheeler v. Clark, 58 N. Y. 267 ; Deer- field V. Connecticut River Rid..' 144 Mass. 325 ; Smith v. New York, &c. Rid. 142 Mass. 21 ; Plimpton v. Con- verse, 42 "Vt. 712 ; Gayetty v. Bethune, 14 Mass. 49 ; Connor v. Sullivan, 40 Conn. 26 ; "Webster v. Lowell, 142 Mass. 324. * Derrickson v. Springer, 5 Harring. 402 Del. 21 ; Sanxay v. Hunger, 42 Ind. 44 ; Brown v. Berry, 6 Coldw. 98 ; Bass V. Edwards, 126 Mass. 445. ' Flagg V. Flagg, 16 Gray, 175, 178; Robinson v. Swope, 12 Bush, 21 ; Kee- ling's Road, 9 Smith, Pa. 358 ; Metz- ler's Road, 12 Smith, Pa. 151 ; People V. Richards, 38 Mich. 214 ; Jacocks v. Newhy, 4 Jones, N. C. 266 ; Hick- man's Case, 4 Harring. Del. 680 ; John- son ». Stayton, 5 Harring. Del. 448 ; Jones V. Barclay, 2 J. J. Mar. 73 ; Poeopson Road, 4 Harris, Pa. 15. In some of these cases, constitutional ob- jections to the statute have been made and overruled. In other cases, it has been adjudged unconstitutional. Stew- art V. Hartman, 46 Ind. 331 ; Clack v. "White, 2 Swan, Tenn. 540 ; Brewer v. Bowman, 9 Ga. 37 ; Crear v. Crossly, 40 111. 176 ; Nesbitt v. Trumbo, 39 111. 110 ; Bankhead v. Brown, 25 Iowa, 540 ; Taylor v. Porter, 4 Hill, N. Y. 140 ; Ban- v. Flynn, 20 Mo. Ap. 383. See Sholl a. German Coal Co. 118 111. 427. 8 Lamed v. Lamed, 11 Met. 421 j Smith V. Barnes, 101 Mass. 275. " Pope I'. Devereux, 5 Gray, 409. M Stafford v. Coyney, 7 B, & C. 257. 11 "Vestry of Bermondsey v. Brown, Law Rep. 1 Eq. 204 ; Bailey ». Culver, 12 Mo. Ap. 175. CHAP. XXXVIII.J EASEMENTS AND SERVITUDES. § 872 It is immaterial to tlae rights of the parties how the way origi- nated, though sometimes an inquiry into its origin will be helpful in determining its location and permissible uses. As to which, — § 870. Location. — The owner of a private way is per- mitted to pass over the servient land only on the line of its location.! And we saw in a preceding chapter, that an ob- struction of it does not, to the same extent as of a public way, authorize the person using it to travel upon adjoining lands.^ § 871. Uses. — Commonly, but not necessarily, a private way is limited to particular uses, expressed in the deed or inferable from the "prescription creating it. Then the owner has no right to employ it for other uses.^ Thus, a way for all carriages is not therefore such for all cattle,* and one for a specified purpose cannot be travelled for another.^ A foot- way is not a way for carriages also,^ but a carriage-way is likewise a footway.^ There are some peculiarities attaching to the — § 872. Way of Necessity. — If one conveys to another, out of a parcel of land,^ a part lying' neither on the highway nor on the grantee's other land, it will be useless to the new owner unless he can have access to it ; hence, by presumption of law, the deed carries with it to the grantee a right of way over the unconveyed part.® And this rule applies as well to an equi- table as to a legal conveyance,^" and it applies to land set off on execution.^i But the mere fact that the grantee can reach 1 Smith V. Lee, 14 Gray, 473 ; Long Eex v. Burgess, 2 Bur. 908 ; Cousens v. V. Gill, 80 Ala. 408 ; Hutton v. Ham- Rose, Law Rep. 12 Eq. 366. boro, 2 Fost. & F. 218 ; George v. Cox, ' Davies v. Stephens, 7 Car. & P. 114 Mass. 382 ; Bannon v. Angler, 2 570. Allen, 128 ; Miller v. Bristol, 12 Pick. 8 Woodworth v. Raymond, 51 Conn. 550. 70 ; Oliver v. Hook, 47 Md. 301. 2 Ante, § 162. 9 2 Bl. Com. 36 ; Howtou v. Frear- ' Atwater v. Bodfish, 11 Gray, 150 ; son, 8 T. R. 50 ; Pernam v. Wead, 2 Wimbledon, &o. Conserv. v. Dixon, 1 Mass. 203 ; Stewart o. Hartman, 46 Ch. D. 362 ; Bradbum v. Morris, 3 Ch. Ind. 331 ; Brigham v. Smith, 4 Gray, D. 812 ; Williams v. James, Law Eep. 297 ; Davies f. Sear, Law Rep. 7 Eq. 2 C. P. 577. 427 ; Kimball v. Cocheoho Eld. 7 Fost. <• Ballard v. Dyson, 1 Taunt. 279. N. H. 448 ; Smyles v. Hastings, 22 s Cowling 0. Higginson, 4 M. & W. N. Y. 217. 245 ; Jackson v. Stacy, Holt, N. P. 455. i° Simmons v. Sines, 4 Abb. Ap. 246. « Eowell V. Doggett, 143 Mass. 483 ; " Schmidt v. Quinn, 136 Mass. 575. 403 § 873 PARTICULAR PLACES AND THINGS. [BOOK V. the land more shortly by passing over the grantor's other land does not create this sort of way ; ^ and still the necessity need not be of the very highest sort, a reasonable necessity suffices.^ There may be circumstances in which the necessity will carry two or more ways,^ but ordinarily only one, and this it is com- petent for the grantor to select or define.* The grantee can use the way only for purposes within the reasonable contem- plation of the parties at the time of its creation, not for such as subsequent changes may render desirable.^ When the necessity ceases, — for example, by the grantee's acquiring adjoining land over which he has a way of his own, — this right of way, founded on the necessity which no. longer exists, terminates.® § 873. Construct and Repair. — A right of way is not sim- ply the right to pass over the servient land, but it includes also the right to enter upon sucli land, put it in condition for the particular use, and keep it so.' The owner of the servient land is not under obligation to do this work,^ unless by agree- ment or prescription.^ In building or repairing a private way, the dominant owner may use materials which he finds on its 1 Motes V. Bates, 74 Ala. 874. tion, the grantee may select for himself. a Goodall v. Godfrey, 63 Vt. 219 ; Holmes v. Seely, 19 Wend. 507; Chase Cihak V. Klekr, 107 111. 643 ; Pettin- v. Perry, 132 Mass. 582, 584. gill V. Porter, 8 Allen, 1. See Hall v. ^ London v. Riggs, 13 Ch. D. 798 ; McLeod, 2 Met. Ky. 98 ; Hyde v. Ja- Seeley v. Bishop, 19 Conn. 128 ; Serff maica, 27 Yt. 443 ; Lawton v. Rivers, v. Acton Local Board, 31 Ch. D. 679. 2 McCord, 445 ; Seabrook v. King, 1 ^ Viall «. Carpenter, 14 Gray, 126; Nott & McC. 140 ; Screven v. Gregorie, Holmes v. Goring, 2 Bing. 76, 9 Moore, 8 Rich. 158. 166 ; Baker v. Crosby, 9 Gray, 421 ; 8 Nichols V. Luce, 24 Pick. 102. Carey v. Rae, 58 Cal. 159 ; Abbott v. * Bolton V. Bolton, 11 Ch. D. 968 ; Stewartstown, 47 N. H. 228 ; Wissler Russell V. -Jackson, 2 Pick. 574, 578, v. Hershey, 11 Harris, Pa. 333. where Wilde, J. says : "All that a per- ' Senhoiise v. Christian, 1 T. R. 560 son entitled to such an easement can Atkins u. Bordman, 2 Met. 457, 467 reasonably claim, is a convenient way ; Gerrard i). Cooke, 2 N. R. 109, 115 and, if this is allowed by the owner of Brown v. Stone, 10 Gray, 61. the land, he has no cause to complain. ^ Wynkoop v. Burger, 12 Johns. To the person entitled to the easement 222 ; Osbom v. Wise, 7 Car. & P. 761; it is immaterial where the way is lo- Puryear v. Clements, 53 Ga. 232. cated, so that he has a convenient way ; ' Rider v. Smith, 3 T. R. 766 ; but to the owner of the land it may be Doane ». Badger, 12 Mass. 65 ; Greene exceedingly important." If the servient v. Canny, 137 Mass. 64. owner declines to make the desigua- 404 CHAP. XXXVIII.] EASEMENTS AND SERVITUDES. § 875 path, but he can take nothing away ; for what is not so used belongs to the servient owner.^ § 874. The Servient Owner — may use the land as he pleases, except that he must not obstruct or impair the way.^ How far he may go herein will depend upon the nature of the way, in a measure upon views special to particular judges on questions as to which opinions differ, and sometimes on the terms of a statute. He may build over the way, leaving a sufficient and convenient . arched passage, duly lighted.^ One obtained a right of way in an established lane " for the con- venient occupation" of his adjoining farmland, and he was held to be " entitled to all the convenience which, as it then existed, it could a£ford in the management of the farm;" therefore the servient owner could not put a gate across the lane.* But commonly the right of the servient owner to erect gates and bars, easily opened and closed, is recognized by the courts, and sometimes it is expressly provided for by statutes.^ § 875. Remedy. — For an unauthorized obstruction of the way an action at law will lie,® and in proper circumstances a bill in equity.' So also the way-owner may remove unlawful obstructions.* If herein, or in the use of the way, he tran- scends his privilege, the servient proprietor will have his 1 Phillipa V. Bowers, 7 Gray, 21 ; Jefcoat, 11 Rich. 529 ; Amondson v. Emails V. Turnbull, 2 Johns. 313. Severson, 37 Iowa, 602. See Devore v. 2 Underwood v. Carney, 1 Cuah. 285, Ellis, 62 Iowa, 505. 292 ; Blanchard v. Allen, 3 Cow. 220 ; 6 3 ui. Com. 241 ; Boyden v. Achen- Capers v. Wilson, 3 McCord, 170 ; At- hach, 86 N. C. 397 ; Steel v. Grigshy, kins V. Bordman, 2 Met. 457, 467. 79 Ind. 184 ; Brimton v. Hall, 1 Q. B. » Sutton V. GroU, 15 Stew. Ch. 213 ; 792 ; Duncan v. Louch, 6 Q. B. 904 ; Atkins V. Bordman, supra ; Richard- Allen u. Ormond, 8 East, 4 ; Gushing son ■». Pond, 15 Gray, 387. 0. Adams, 18 Pick. 110. * Dickinson v. Whiting, 141 Mass. ' Schaidt v. Blaul, 66 Md. 141 ; 414. Compare with Brownell v. Dyer, Bean v. Coleman, 44 N. H. 539 ; Mc- 5 Mason, 227. Cann ». Day, 57 111. 101 ; Kash v. s Baker v. Frick, 45 Md. 337 ; New England Mut. Life Ins. Co. 127 Bakeman v. Talbot, 31 N. Y. 366 ; Mass. 91 ; Fox v. Pierce, 50 Mich. Houpea v. Alderson, 22 Iowa, 160 ; 500 ; MoCue v. Ealston, 9 Grat. 430. McTavish v. Carroll, 17 Md. 1 ; Max- « Webber 1). Sparkes, 10 M. & W. well V. McAtee, 9 B. Monr. 20 ; Hinks 485 ; Quintard v. Bishop, 29 Conn. V. Hinks, 46 Maine, 423 ; Stevens v. 366. Allen, 5 Dutcher, 68 ; The State v. 405 § 878 PARTICULAR PLACES AND THINGS. [BOOK V. action,^ to which it will be no answer that no damage was done beyond the disturbance of a right.^ § 876. Third Persons. — As to third persons, the principles considered in our last chapter apply.^ One owes to tres- passers no duty to keep his ways in repair ; and only persons invited on a private way, or having a right to use it, can have damages for an injury suffered from its unsafe condition.* But where the owner of the way expressly or by implication opens it to others, he may be responsible for injuries through defects of which he is aware ; as, where it is practically public, and used by the public with his knowledge and permission.^ III. Under and Upper Waters. § 877. Underground : — How regarded. — Only as the result of investigations neces- sarily imperfect do we know of the existence of underground currents of water. Mere percolations are more obvious. But all beneath the surface is so obscure that to establish a sys- tem of legal rules for easements in these natural waters under- ground would be practically impossible, and the facts would ordinarily be so uncertain to the owners of the soil that they could not conform to the rules if made. Moreover, if these difficulties were surmounted, still more evil than good would come from opening the courts to litigation over easements and servitudes in these invisible percolations and voiceless rills.® So that — § 878. Doctrine defined. — Waters placed by nature below the surface of the ground, and beyond ordinary observation, are exempt from the rules governing those above. So long as they remain thus undisclosed, there can be no easement in them and they are subject to no servitude. The owner of the 1 Davenport v. Lamson, 21 Pick. 177 ; Louisville, &o. Canal v. Murphy, 72. 9 Bush, 522. 2 Appleton V. Fullerton, 1 Gray, 186; « Campbell D.Boyd, 88 N. C. 129, 131. Tuttle V. Walker, 46 Maine, 280. * And see the reasonings in the cases, ' Ante, § 845-854. prominent among which is Chasemore «. * Nugent V. Wann, 1 McCrary, 438 ; Richards, 7 H. L. Cas. 349, 5 Jur. N. s. Birnhaum v. Crowninshield, 137 Mass. 873. 406 CHAP. XXXVIII.] EASEMENTS AND SERVITUDES. § 882 surface soil may at all times, while in the honest pursuit of his own interests, extract what he can, without liability to the owner of other land injured, and subject to have his supply cut off by another who likewise has occasion to draw from the same vein.^ But when the water has once risen or been brought to the surface, it becomes subject to the rules of over- ground waters.^ Thus, — § 879. 'Wells. — Land-owners may, on their own premises, dig wells and use the water from them to any extent they severally need, and priority of occupation gives no priority of right ; so that, regardless of the order of the digging, no one can claim anything of another for having thereby made his well or his spring dry.^ In a controversy between neighbor- ing land-owners, where the subterranean water was ample for both, an adjustment was ordered in equity whereby neither should be deprived of his supply.* § 880. 'Water for Mill. — A river which turned a mill was largely fed by percolations from lands wherein, after the mill had become ancient, a well was sunk to supply a town with water. By the pumpings from the well the water for the mill was diminished. But the mill-owner was adjudged to be with- out remedy.® Also, — § 881. Mining. — One injured by the loss of water which a neighboring owner abstracts in mining operations can enforce from him iio compensation.^ Again, — § 882. Support. — One has no easement in the waters under * Cases cited to the next nine sec- Greeley, 45 N. Y. 671 ; Delhi v. You- tions, and Goodale ». Tuttle, 29 N. Y. mans, 45 N. Y. 362 ; Lybe's Appeal, 459 ; New Albany, &c. Eld. v. Peter- 10 Out. Pa. 626. Contra, Smith v. son, 14 Ind. 112 ; Bloodgood ». Ayers, Adams, 6 Paige, 435. 108 N. Y. 400 : Cole Silver Min. Co. ■». * Burroughs v. Saterlee, 67 Iowa, "Virginia, &c. Water Co. 1 Saw. 470 ; 396. Chatfield v. Wilson, 27 "Vt. 670, 28 ^ Chasemore v. Richards, 7 H. L. Vt. 49. Cas. 349, 5 Jur. N. s. 873 ; s. c. in Ex. ' Grand Jonction Canal v. Shogar, Cham. 2 H. & N. 168, 3 Jur. N. s. 6 Ch. Ap. 483. 984. ' Ocean Grove Camp Meeting v. ^ Acton v. Blundell, 12 M. & W. Asbury Park, 13 Stew. Ch. 447 ; Chase 324 ; Ballacorkish Silver, &c. Co. v. V, Silverstone, 62 Maine, 175 ; Ellis Harrison, Law Rep. 5 P. C. 49 ; Halde- V. Duncan, 21 Barb. 230 ; Frazier v. man v. Bruckhart, 9 Wright, Pa. 514. Brown, 12 Ohio State, 294 ; Bliss n. 407 § 885 PAETICULAB PLACES AND THINGS. [BOOK T. the land of another for the support of his own land. So that, if the latter, by draining his land, causes the soil of the former to subside, the injury is without remedy.^ § 883. Malicious. — Since a wilful injury may be actionable when a like harm inflicted in the discharge of a duty, or in the doing of a rightful thing, would not be,^ one would seem to be liable who deprives another of underground waters sim- ply to do him a wrong, with no expectation of benefit to him- self.^ Yet a part of the courts, apparently looking upon the right we are considering as absolute, hold it to be with- in the rule* that one exercising a right is not accountable for his motives.^ If we accept as sound in law the ethi- cally just doctrine that equity may restrain a man from drawing a greater quantity of underground water than he needs, to the cutting off of another's supply,® it results that the right is not thus absolute, and a mere malicious exercise of it, for the express purpose of injuring another, is an action- able wrong. § 884. statutes. — A statute may be in terms which will create a liability for drawing off underground waters.^ So — § 885. Agreement — Prescription. — Parties may bind them- selves, as to these waters, by contract.^ But, though prescrip- tion is a contract proved in a particular way, the special nature of this sort of thing precludes it.^ To illustrate : if I see a well on my neighbor's land, I have no power to inter- fere, and no occasion to announce any purpose as to my own land. Then, should this state of things continue during the prescription period, there can be no presumption that we bar- 1 Popplewell V. Eodkinson, Law Eep. ' Trowbridge v. Brookline, 144 Mass. 4 Ex. 248. 139. 2 Ante, § 142-147. « Johnstown Cheese Manuf. Co. b. « Chesley ». King, 74 Maine, 164 ; Veghte, 69 N. Y. 16 ; Dickinson v. Greenleaf v. Francis, 18 Pick. 117 ; Grand Junction Canal, 7 Exch. 282. Haldeman v. Bruckhart, 9 Wright, Pa. ' Chasemore v. Richards, 7 H. L. 514, 521 ; Roath v. Drisooll, 20 Conn. Cas. 349, 5 Jur. N. s. 873 ; Eoath ». 533. Drisooll, 20 Conn. 533 ; Frazier v. * Ante, § 103, 503. Brown, 12 Ohio State, 294 ; Hanson 6 Phelps V. Nowlen, 72 F. Y. 39 ; v. McCue, 42 Cal. 303. See Acton v. Frazier v. Brown, 12 Ohio State, 294 ; Blundell, 12 M. & W. 324 ; Greenleaf Chatfield «. Wilson, 28 Vt. 49. v. Francis, 18 Pick. 117. 6 Ante, § 879. 408 CHAP. XXXVIII.] EASEMENTS AND SERVITUDES. § 889 gaiued for it, since there was nothing to call out a controversy or a compromise. § 886. Fouling. — Whether one can pollute a neighbor's underground waters to his injury, and escape liability, is a question on which there has been a difference of opinion. It is adjudged in England that he cannot, " on this ground," said Brett, M. R. " that, although nobody has any property in the percolating water, yet such water is a common source which everybody has a right to appropriate, and that there- fore no one is justified in injuring the right of appropriation which everybody else has." ^ But in many circumstances, — as, where the nature and courses of the underground waters are unknown, which is the common case, — the application of this doctrine would be difficult and uncertain ; so that, if it is accepted, it should be only with qualifications.^ § 887. Part Underground. — If a stream flows at places above the surface and at others below, so that its course can be traced, it is not, within our doctrine, underground water.^ § 888. Watercourses above Ground : — Distinction. — The above-ground watercourses, in law lan- guage termed simply watercourses, do not follow either the rules governing underground waters, just stated, or exactly those of surface waters. § 889. Term defined. — A watercourse is the perennial or intermittent* flow of waters of whatever dimension,^ from permanent sources, in a stream of ascertained limits, and as nature left it ; ^ whence, in legal language, the term denotes also the easements and servitudes pertaining thereto.'^ 1 Ballard v. TomUnsoii, 29 Ch. D. ^ Luther v. Winnisimmet Co. 9 115, 122, reversing 26 Ch. D. 194. Gush. 171 ; Earl v. De Hart, 1 Beas- * And see Brown v. lUins, 25 Conn, ley, 280 ; Jeffers v. Jeffers, 107 N. Y. 583. 650 ; Parks i). Newburyport, 10 Gray, * Diekinson v. Grand Jnnetion Ca- 28 ; Stanchfield v. Newton, 142 Mass. nal, 7 Exch. 282, 300, '301 ; Wheatley 110 ; Enlrich ». Eichter, 37 Wis. 226 ; V. Bangh, 1 Casey, Pa. 528 ; Hebron Barnes v. Sabron, 10 Nev. 217 ; Eulrich Gravel Koad v. Harvey, 90 Ind. 192 ; r. Eichter, 41 Wis. 318 ; Gibbs v. Wil- Saddler v. Lee, 66 Ga. 45. liams, 25 Ean. 214 ; Benson a. Chi- * Ferris ». Wellborn, 64 Missis. 29 ; cago, &c. Eld. 78 Mo. 504. KanffmanD. Griesemer, 2Casey, Pa.407; ' A search in the books for defini- Pyle V. Eichards, 17 Neb. 180. tions of this term ends in the usual 5 Giliett V. Johnson, 30 Conn. 180. result that nothing very serviceable ap- 409 §890 PARTICULAR PLACES AND THINGS. [book T. § 890. Doctrine definea. — Since nature made for these liv- ing waters their channels and caused them to flow therein, impartially distributing their beneficence upon the lands all the way from their springs to their resting-places in the lakes and the ocean, it is an impossibility as well of law as of fact that any measured portion of them should adhere to any measured portion of the soil, in a way to become the property of the man who owns the motionless ground.^ Therefore the law follows nature ; each land-owner along the stream is enti- tled to get out of it whatever good he can,^ — as, to cause the gravitation of its waters to turn his mill,^ to divert them into pears. Washburn, Easements, 209, says that "the most acchrate and compendi- ous " definition is by Bigelow, J., thus : " A watercourse is a stream of water, usually flowing in a definite channel, having a, bed and sides or banks, and usually discharging itself into some other stream or body of water. To con- stitute a watercourse, the size of the stream is not important ; it may be very small, and the ilow of the water need not be constant. But it must be something more than a mere surface drainage over the entire face of a tract of land, occasioned by unusual freshets or other extraordinary causes." Luther v. Winnisimmet Co. supra, at p. 174 In Jeffers v. Jeffers, 107 N. Y. 650, 651, the court observes that " a water- course, as defined in the law, means a living stream, with defined banks and channel, not necessarily running all the time, but fed from other and more per- manent sources than mere surface water." Referring to Barkley v. Wilcox, 86 N. Y. 140, 143. In the latter ease, Andrews, J. defines : "A natural watercourse is a natural stream flowing in a defined bed or channel, with banks and sides, having permanent sources of supply. It is not essential to constitute a water- course that the flow should be uniform or uninterrupted." These neater defi- nitions than Bigelow's were not pub- lished when Washburn wrote. See also Eulrich v. Richter, 37 Wis.. 226 ; Fryer V. Warne, 29 Wis. 511. But no one of 410 these definings covers the latter branch of the definition as given in my text. Abbott, Law Diet. Watercourse, quotes 1 Steph. Com. 659, 693, thus : " A watercourse is a right which a man may have to the benefit or flow of a river or stream. This right includes that of having the course of the stream kept free from any interruption or disturb- ance to the prejudice of the proprietor, by the acts of persons without his own territory, — whether owing to a diver- sion of the water, or to its obstruction, or pollution by offensive commixture." And he adds, from Whart. Law Diet. : " A watercourse is a species of incorpo- real hereditament ; being a right which one has to the benefit of the flow of a river or steam," &c. Unlike as these two forms of the defining seem to be, each is substantially correct ; the one, covering the first part of the definition as given in my text ; the other, the second. 1 Embrey v. Owen, 6 Exch. 353 ; Eace V. Ward, 4 Ellis & B. 702 ; Bark- ley V. Wilcox, 86 N. Y. 140, 146. ^ Gardner v. Newburgh, 2 Johns. Ch. 162, 164 ; McCord v. High, 24 Iowa, 336 ; Cowles v. Kidder, 4 Fost. N. H. 364 ; Pugh v. Wheeler, 2 Dev. & Bat. 50 ; Omelvany v. Jaggers, 2 Hill, S. C. 634 ; Shamleffer v. Council Grove, &c. Mill, 18 Kan. 24 ; Ford v. Whitlock, 27 Vt. 265 ; Johnson v. Jordan, 2 Met. 234, 239. ' Springfield v. Harris, 4 Allen, 494; CHAP. XXXVIII.] EASEMENTS AND SERVITUDES. § 891 temporary pauses within artificial embankments for ornament or use,^ to conduct them through his grounds in fructifying rills, which if not exhausted he returns to the natural channel when their work is done,^ — but not in a way or to an extent to deprive a lower owner of his equal rights,^ while yet the doctrine of equal x'ights itself permits a reasonable diminution of the stream to the disadvantage of such lower owner.* The correlate rights of the parties herein constitute easements on the one side and servitudes on the other, originating in nature and adopted by the law.^ § 891. Bargainings and Prescription. — The rights of parties in these waters may be regulated by agreements between them ; ® hence, therefore, by prescription.'' But to some ex- tent they are within the practical diflBculties which prevent prescription in underground waters.® For example, one who employs the power of a stream to turn his mill does nothing adverse to the owner of an unoccupied mill-site above,® or of lands which may thereafter require irrigation ; ^^ so that no length of user of the mill can prevent the exercise at any time of these dormant mill and irrigating privileges. In the words Bliss V. Kennedy, 43 111. 67 ; Burden * Weston v. Alden, 8 Mass. 136, as V. Mobile, 21 Ala. 309 ; Plumleigh v. to which, see Cook v. HuU, supra ; Col- Cawson, 1 Oilman, 544 ; Thurher v. rick u. Swinburne, 105^ N. Y. 503 ; Martin, 2 Gray, 394 ; Gould v. Boston Clinton v. Myers, 46 N. Y. 511. Duck Co. 13 Gray, 442 ; Clinton v. ^ And see Gary v. Daniels, 8 Met. Myers, 46 N. Y. 511. 466, 480 ; Crittenton v. Alger, 11 Met. 1 Norbury v. Eitchin, 9 Jur. N. s. 281 ; Dickinson v. Grand June. Canal, 132. 7 Exch. 282, 299 ; Farris v. Dudley, 78 ^ Anthony v. Lapham, 5 Pick. 17^ ; Ala. 124 ; Brakely v. Sharp, 2 Stock. Messinger's Appeal, 13 Out. Pa. 285 ; 206. "Weiss V. Oregon Iron, &c. Co. 13 Ore- 6 Ortman v. Dixon, 13 Cal. 33 ; gon, 496 ; Sampson i). Hoddinott, 1 Goodrich v. Burbank, 12 Allen, 459 ; C. B. N. s. 590, 3 Jur. N. s. 243. MandevUle v. Comstock, 9 Mich. 536 ; * Embrey v. Owen, supra ; Cook v. Le Fevre v. Le Fevre, 4 S. & E. 241 ; Hull, 3 Pick. 269 ; Arnold ». Foot, 12 Clark v. Close, 43 Iowa, 92. Wend. 329 ; Colbum v. Eicharfls, 13 1 Mason v. Hill, 5 B. & Ad. 1 ; Mass. 420 ; Wadsworth v. Tillotson, Watkins v. Peck, 13 N. H. 360 ; Jen- 15 Conn. 366 ; Blanchard v. Baker, 8 nison v. Walker, 11 Gray, 423 ; Ivimey GreenL 253 ; Davis v. Getchell, 50 v. Stocker, Law Kep. 1 Ch. Ap. 396. Maine, 602 ; Bliss v. Kennedy, 43 111. 8 Ante, § 885. 67 ; Baker ». Brown, 55 Texas, 377 ; * Thurber v. Martin, 2 Gray, 394. Moulton V. NewbuTyport Water Co. 137 i" Embrey v. Owen, 6 Exch. 353 ; Mass. 163 ; Pennsylvania Eld. v. Mil- Broadbent v. Eamsbotham, 11 Exch. ler, 2 Am. Pa. 34. 602. 411 § 894 PARTICULAR PLACES AND THINGS. [BOOK V. of Shaw, C. J. " it must be some use inconsistent with and therefore adverse to the right of others, which can be acquired by prescription ; such as diverting the water from its natural course." ^ Thus, — § 892. Diverting Water. — As intimated by this learned judge, one has no right, except as stated in a preceding sec- tion,^ to divert a stream from its natural channel to the injury of a lower owner. If he does it, an action will immediately lie against him,^ for he is exercising what he claims as his right, adversely to such owner's right.* Within this doctrine, one who during the prescription period has taken water for irrigation without objection from those below him, cannot be called to account by them for afterward withdrawing more than his just proportion, if he continues simply to use what he has done before.^ So, — § 893. Plowing. — If one so dams a stream that it over- flows lands above his own, or injures a mill there, he does an act adverse to the rights of their owner, for which an action will at once lie.^ Then, by continuing this uninterruptedly during the prescription period, he acquires the right from the law's presumption of a grant.'^ Again, — § 894. Pollution. — One has no right to pollute a stream to the injury of a riparian proprietor.^ But, within limits per- haps, this right may be acquired by prescription.® The same may be said of an — 1 Gould V. Boston Duck Co. 13 Gray, ^ Brown v. Bowen, 30 N. Y. 519. 442, 451. ' Cowell v. Thayer, 5 Met. 253, 256; 2 Ante, § 890. Baldwin v. Calkins, 10 Wend. 166. » Mason v. Hill, 3 B. & Ad. 304 ; » Goldsmid v. Tunbridge Wells Imp. Tuthill V. Scott, 43 Vt. 525 ; Porter v. Com. Law Kep. 1 Ch. Ap. 349 ; Attor- Durham, 74 N. C. 767 ; Williamson d. ney-General v. Guardians of Poor, 20 Look's Creek Canal, 78 N. C. 156 ; Ch. D. 595 ; Hill v. Smith, 32 Cal. 166 ; Garwood v. New York Cent. &c. Eld. Carhart v. Auburn Gas-light Co. 22 83 N. Y. 400. Barb. 297 ; Lockwood Co. v. Lawrence, * Polly V. MoCaU, 37 Ala. 20 ; 77 Maine, 297 ; Jackman v. Arlington Haight V. Price, 21 N. Y. 241 ; Smith Mills, 137 Mass. 277. V. Adams, 6 Paige, 435 ; Pillsbury ». ' Crossley v. Lightowler, Law Sep. Moore, 44 Maine, 154 ; Campbell b. 2 Ch. Ap. 478 ; Fletcher o. Bealey, 28 Smith, 3 Halst. 140 ; Beeston v. Weate, Ch. D. 688. And see Cotton v. Pocas- 5 Ellis & B. 986. set Manuf. Co. 13 Met. 429 ; White v. B Messinger's Appeal, 13 Out. Fa. Chapin, 12 Allen, 516. 285. 412 CHAP. XXXVIII.J EASEMENTS AND SERVITUDES. § 898 § 895. Increased Plow. — To increase the flow of a water- course by turning into it other water, to the injury of a ripa- rian owner, is an actionable wrong.^ It therefore follows that the wrong may be converted into a right by prescription. § 896. statutes, — in some of the States, more or less vary the foregoing rules of the common law. But, as each practi- tioner will have before him the legislation of his own State and the decisions thereon, nothing further need be particu- larized here.^ §897. Surface Water: — Judicial Differences. — There are two opinions on this sub- ject, widely antagonistic ; namely, — § 898. Filling Depressions in Land. — By the opinion which, it is submitted, is the better founded both in legal reason and in public policy, one may fill up with soil the pools and the other depressions in his land to any extent required for its good management, not to the obstructing of a watercourse within the expositions just made,^ but to the turning back, upon another's adjoining lands, of surface water thence flow- ing. This results from the right of every man to use his own property as he will, though incidentally to the injury of an- other, if he does not interfere with the other's fixed and abso- lute rights, and sometimes if he does.* And surface water is a thing too unstable and shifting to be the subject of a fixed and absolute right.^ When, therefore, one owning land on a lower grade than his neighbor's, so that the latter's surface water was accustomed to flow over it, fiUed it up and built a 1 Stanchfield v. Newton, 142 Mass. ' Ante, § 892. 110 ; TUlotson . Starring, 5 Mackey, 582 ; Costa k. Whitehead, 20 La. An. 341; Ingals V. Plamondon, 75 111. 118 ; Koe- Jamison v. Duncan, 12 La. An. 785; nig V. Haddix, 21 111. Ap. 53. Pierce v. Lemon, 2 Houst. 519 ; Voll- 2 Ante, § 915. mer's Appeal, 11 Smith, Pa. 118. ' Ante, § 912. ' Bradbee v. Christ's Hospital, 5 « Brown v. Werner, 40 Md. 15 ; Scott, N. R. 79, 4 Man. & G. 714 ; Cubitt V. Porter, 8 B. & C. 257 ; Phil- Stedman ». Smith, 8 Ellis & B. 1 ; Eno lips V. Bordman, 4 Allen, 147 ; Eno v. v. Del Vecchio, 4 Duer, 63, 6 lb. 17 ; Del Vecchio, 4 Duer, 53 ; Webster «. Phillips v. Bordman, 4 Allen, 147 ; Stevens, 5 Duer, 553 ; List v. Horn- Milne's Appeal, 31 Smith, Pa. 54. brook, 2 W. Va. 340. ' Stedman v. Smith, supra ; Craw- ^ Hunt V. Ambruster, 2 C. E. Green, shaw v. Sumner, 56 Mo. 517 ; Partridge 208. V. Gilbert, 15 N. Y. 601 ; Evans v. 8 Sauer v. Monroe, 8 Harris, Pa. Jayne, 11 Harris, Pa. 34. 219 ; Childs .;. Napheys, 2 Am. Pa. » Ante, § 910. 426 CHAP. XXXVIII.l EASEMENTS AND SERVITUDES. 5 921 responsible for any injury inflicted through unreasonable de- lay or want of due care.^ This subject might be somewhat further continued ; but we should soon find ourselves where the explanations, to be useful, must be extensive, involving dis- similar statutes, forms of the agreement, and particulars of the prescription. The subject itself is almost foreign to the purposes of this volume. Therefore the unfoldings of it will here close. V. lAgM and Air. § 920. Differences. — On the subject of this sub-title, the English law has been widely departed from in the United States, the decisions iu our several States are not quite har- monious, and varying statutes have added to the complica- tions. No prudent practitioner will advise upon it without first studying carefully his own local statutes and adjudica- tions. Still some general views will be a helpful introduction to such study. § 921. Air. — The word " air " is joined to "light" in this sub-title, because such is the common form of language in our books. But the two are not alike. " It is," said a learned English equity judge,' " only in very rare and special cases, involving danger to health, or at least something very nearly approaching it, that the court would be justified in inter- fering on the ground of diminution of air." ^ In the present work, the law of the corruption of air is explained in the chapter on " Nuisance." ^ As air does not, like the beams of light, travel simply in straight lines, but pervades all things, we may doubt whether the cutting off of air from a habitation is ever actionable, if the purity of it remains undiminished. An interx'uption of the velocity of its flow would often be un- pleasant, but an action therefor, where the light had sufficient room, could probably not be maintained.^ 1 3 Kent Com. 437 ; Crawshaw «. » Ante, § 412, 414, 416, 426. Samner, sapia ; Pfluger v. Hocken, 1 * And see 3 Kent Com. 448 ; Webb Fost. & F. 142. V. Bird, 10 C. B. N. s. 268, 13 C. B. ' Lord Chancellor Selbome, in Lon- N. s. 841, 8 Jur. N. s. 621, as to air for don Brewery v. Tennant, Law Rep. 9 a windmill. Ch. Ap. 212, 221. 427 § 924 PABTICULAE PLACES AND THINGS. [BOOK V. § 922. Easement in Light — Why. — Light visits US from all directions. But the ownership of land, while it reaches to " an indefinite extent upwards as well as downwards," ^ can have no lateral expansions, else the lines of every owner would intermingle with those of every other. Since, therefore, my neighbor is entitled to occupy his lands ad caelum, I can have none but vertical light except by his permission. Yet, at this point, the law presents its practical aspect. Because light pervades the whole atmosphere^ and visits man from every side, no one is permitted to sue another for having refreshed and strengthened himself from light which had travelled over his grounds.^ And still an owner may extend his structures upward, cutting off the light from adjoining estates. Yet any owner may abandon this right in favor of another's es- tate ; by which abandonment there are created an easement and servitude of light in the respective estates.^ A common method is by — § 923. Contract. — The easement of li^ht may be created by a direct grant* or by a reservation in a deed of the land.^ So, if one sells a parcel of his own land, with a house having windows which overlook unsold land of his, the grantee takes the easement of so much light from it 'as is essential to the reasonable enjoyment of the estate conveyed.^ § 924. Prescription. — Since one whose land is overlooked by windows from land of andther has no right of action against him,^ it follows that, upon the ordinary principle of prescrip- 1 2 Bl. Com. 18. United States v. Appleton, 1 Sumner, * Compare with ante, § 890. 492 ; Palmer v. Fletcher, 1 Lev. 122 ; s Moore v. Eawson, 3 B. & C. 332 ; Swansborough v. Coventry, 9 Bing. Embrey v. Owen, 6 Exoh. 353, 373 ; 305, 2 Moore & S. 362 ; Compton v. Barker v. Richardson, 4 B. & Aid. 579 ; Richards, 1 Price, 27. Contra, Keiper Pond V. Metropolitan Elev. Ry. 42 v. Klein, 51 Ind. 316 ; Keats v. Hugo, Hun, 567 ; Honseli). Conant, 12Bradw. 115 Mass. 204. And see Riviere ». 259. Bower, Ey. & Moody, N. P. 24 ; * Brooks V. Reynolds, 106 Mass. 31; Maynard v. Esher, 5 Harris, Pa. 222 ; Bumham v. Nevina, 144 Mass. 88, 94; "Washb. Easm. 494-497, 504, 505. Harwood v. Tompkins, 4 Zab. 425. ' Turner o. Spooner, 1 Drewry & S. 6 Cooper V. Louanstein, 10 Stew. 467, 7 Jur. N. s. 1068 ; Tapling' ■». Ch. 284. Jones, 11 H. L. Cas. 290, 13 C. B. N. s. •■ Rennyaon's Appeal, 13 Norris, Pa. 876. 147 ; Havens i». Klein, 51 How. Pr. 82; 428 CHAP. XXXYIII.] EASEMENTS AND SERVITUDES. § 925 tioii,^ au owner of a house with windows opening upon grounds of another cannot forbid his building up against them, how- ever long the house has stood. Still it was early settled in England, under one or another of various forms of reasoning, or as an anomaly in the law, " that," in the words of Wash- burn, " one may prescribe for the right of light and air to come to his windows unobstructed across the land of another, if enjoyed for twenty years, or the period of ordinary prescrip- tion." ^ And in 1832 this doctrine was affirmed by statute, and the right made " absolute and indefeasible." ^ In Dela- ware* and a few of our other States,^ this doctrine is ac- cepted as an inheritance from England ; but, in most of them, it is rejected, either as being violative of the rules of prescrip- tion, or as not adapted to our new and growing country.® § 925. The Doctrine of this Chapter restated. Owing to the permanent nature of land, to the constant moving of men and things upon and over it, to the erection of buildings thereon, and to the making of excavations therein, it becomes impossible that any man's ownership should so in- clude every material substance, from the surface upward to heaven and downward to the earth's centre, as to cut off all right and use from every other person. One cannot grasp and hold the air, the sunbeams, or the flowing rivers ; each of these will travel onward to bless his neighbors. In each, 1 ABte, § 912. Dutcher, 4 Stew. Ch. 217 ; Ray v. 2 Washb. Easm. 493. Among the Sweeney, 14 Bush, 1 ; Turner v. Thomp- cases, some of which he refers to, aie son, 58 Ga. 268 ; Stein v. Haack, 56 Moore ». Eawson, 3 B. & C. 332 ; Al- Ind. 65 ; Keiper v. Klein, 51 Ind. 316 ; dred's Case, 9 Co. 67 h, 58 b; Cross v. Mullen v. Strieker, 19 Ohio State, 135 ; Lewis, 2 B. & C. 686, 690 ; Eenshaw v. Parker v. Foote, 19 Wend. 309 ; Myers v. Bean, 18 Q. B. 112 ; Daniel v. North, Gemrael, 10 Barb. 537 ; Ward v. Feal, 11 East, 372 ; Cotterell v. Griffiths, 4 37 Ala. 500 ; Kichardson v. Pond, 15 Esp. 69. Gray, 387 ; Cherry v. Stein, 11 Md. « 2 & 3 Will. 4, c. 71 ; Harbidge v. 1 ; Haverstick v. Sipe, 9 Casey, Pa. 368; Warwick, 3 Exch. 552. Hubbard v. Town, 33 Vt. 295 ; Morri- * Clawson v. Primrose, 4 DeL Ch. son v. Marquardt, 24 Iowa, 35 ; Napier 643. V. Bulwinkle, 5 Rich. 311 ; Klein v. * Lapere v. Lnckey, 23 Kan. 534 ; Gehrung, 25 Texas, Sup. 232 ; Pierre v. Gerber v. Grabel, 16 111. 217. Femald, 26 Maine, 436. * Ante, § 912 and note ; Hayden v. 429 § 925 PARTICULAR PLACES AND THINGS. [BOOK V. they, like himself, have rights. And the same is true of other things involving the like reasons. Out of all, therefore, grow natural easements and servitudes ; and, in analogy to them, we have artificial ones, created by contracts, prescrip- tions, and statutes. In the main, the law of this title fol- lows nature ; but it has a few technical rules. And it permits people to buy and sell these rights, and otherwise to regulate the enjoyment of them, the same as other subjects of property, with the like limitation that it must be done after the law's forms and methods. The particulars having been explained throughout the chapter, they need not be here repeated. 430 CHAP. XXXIX. J PERSONAL CHATTELS. § 928 CHAPTER XXXIX. PERSONAL CHATTELS. § 926. Elsewhere. — The chapter entitled " Conversion of Goods " ^ treats of a common form of wrong to personal chat- tels. And the expositions in the greater part of the chapter on " Lands " ^ are almost equally applicable to chattels, espe- cially to those of a permanent sort. Thus, — § 927. Vessel. — A ship or other like vessel is personal property. But, precisely as under the law of real estate,^ if, through the owner's carelessness, one lawfully upon it is in- jured, the owner, or under the maritime rules the vessel itself, must compensate him. It was so, for example, where a man in the dark tumbled to his injury down an open hatchway, which had been negligently left unlighted.* And where a warehouseman's employee, at work on a vessel's deck, was hurt by the falling of a skid which a sailor had carelessly un- fastened, the vessel was adjudged to be liable.® But contribu- tory negligence will be a bar in this class of cases, the same as in the corresponding ones of negligence on land.^ And the ship-owner, like the owner of land,^ will not be respon- sible for an accident to a trespasser.^ These several illustra- tions of the analogy of personal property to real are likewise within the general law of — § 928, Negligence. — Following the rules in negligence,® one 1 Ante, § 396 et seq. « The Privateer, 14 Fed. Eep. 872 ; 2- Ante, § 819-859. Anderson v. Scully, 31 Fed. Eep. 161. » Ante, § 845-854. ' Ante, § 845. * The Guillenno, 26 Fed. Eep. 921. ' Severy v. Nlckei-son, 120 Mass. And see Belford v. Canada Shipping Co. 306. 35 Hnn. 347. » Ante, § 433-484. 6 The Polaria, 26 Fed. Eep. 735. 431 § 930 PARTICULAR PLACES AND THINGS. [BOOK V. in possession of another's personal property, however law- fully, and though entitled to use it, will be answerable for any injury to it through a want of due care. For example, a person towing a vessel with a tug, if he negligently draws her too fast, to the damaging of her cargo by a partial submer- siou, must make good the loss.^ And the hirer of a horse is responsible for any harm to it resulting from a lack of proper care, or a wrongful use, but not for its becoming sick with- out his fault.2 So any person who, by any other negligent act, does a damage to another's personalty, must recompense him.* More in general, — § 929. 'Wrongful Act. — Any wrongful act, it is immaterial by what name called, whereby one injures the goods of an- other,* or impairs his apparent ownership,* — as, where he sells or buys them unauthorized,^ — or disturbs the possession of them,'^ or withholds them from the true owner,* or from a person entitled to the possession-,^ or otherwise deals with them in a way excluding the owner's dominion,^" will subject the doer to the payment of damages to the person injured.!^ At the same time, — § 930. Loss of Ownership. — Whatever be the wrong done to the chattel of a person who is without fault, and however another may deprive him of the possession, or deny his right thereto, the law will still hold the ownership to be in him, to 1 Baird v. Daly, 68 N. Y. 547. « Ante, § 404 ; Church v. McLeod, 2 Ante, § 405 ; Hall v. Warner, 60 58 Vt. 541 ; Scudder o. Anderson, 54 Barb. 198 ; Wentworth v. McDnffle, 48 Mich. 122 ; Brayman v. Whitcomb, 134 N.. H. 402 ; Brewster v. Warner, 136 Mass. 525 ; Hardy v. Clendeniug, 25 Mass. 57. Ark. 436. 8 Lotan V. Cross, 2 Camp. 464. ' Drew ». Spaulding, 45 K. H. 472 ; * Moore ». Robinson, 2 B. & Ad. Woodruff ». Halsey, 8 Pick. 333 ; Stan- 817 ; Beardslee v. French, 7 Conn. 125 ; ley «. Gaylord, 1 Cush. 536 ; Carrnthers Angus V. Radin, 2 Southard, 815 ; v. Hollis, 8 A. & E. 113 ; Wheeler v. Dolph V. Ferris, 7 Watts & S. 367 ; Lawson, 103 K. Y. 40. Faff V. Slack, 7 Barr, 254 ; Payne v. 8 Ante, § 406 ; Binstead v. Buck, 2 Smith, 4 Dana, 497 ; White v. Brant- W. Bl. 1117 ; Lord v. Wardle, 8 Bing. ley, 37 Ala. 430. N. C. 680 ; Dusky v. Rudder, 80 Mo. 5 Richards v. Symons, 8 Q. B. 90 j 400 ; Weston v. Carr, 71 Maine, 356. Mead v. Jack, 12 Daly, 65 ; Johnson * Roberts v. Wyatt, 2 Taunt. 268. V. Farr, 60 N. H. 426 ; Tobin v. Deal, w Ante, § 403. 60 Wis. 87 ; Badger u. Hatch, 71 Maine, i^ Ante, § 22 et seq. 562. 432 CHAP. XZXIX.] PERSONAL CHATTELS. § the exclusion of the claim of every wrong-doer. In early times, there were exceptions to this rule, but they have been wearing away with the progress of civilization ; until now, in the United States, the exceptions are only trivial seeming ones, or such as proceed necessarily from the due order of society. As to some particulars, — § 9S1. stolen Goods. — The larceny of goods, with the trans- fer of them by the thief to third persons however innocent, and on however valuable a consideration, will in no circum- stances deprive the original owner of his ownership there- in. And, wherever he finds them, he is entitled to take them into his possession.' Or, if the innocent receiver sells them, he is liable to the owner for their value.^ In England, this is qualified by the doctrine of — § 932. Market Overt. — Sales in " market overt " — which, says Blackstone, " in the country is only held on the special days provided for particular towns by charter or prescription, but in London every day except Sunday," ^ and every shop in London * is a market overt for the sort of goods commonly sold in it — are, by the common law of England, if the pur- chaser is without fault, an effectual transfer of the owner- ship, even as to stolen goods.® But statutes have reversed this, as to stolen goods, after the conviction of the thief.® In the United States, the doctrine of market overt is not received.^ § 933. Goods iPraudulently Obtained, — not speaking now of those criminal frauds which, like larceny, transfer no title to the person obtaining them,^ — where a defeasible title vests 1 Bishop Con. § 676 ; White v. Spet- « Walker v. Matthews, 8 Q. B. D. tigue, 13 M. & W. 603 ; Lee d. Bayes, 109 ; Scattergood v. Sylvester, 15 Q. B. - 18 0. B. 599 ; Basset v. Green, 2 Duv. 506. 560. ' Hardy v. Metzgar, 2 Yeates, 347 ; 2 Eobinson v. Skipworth, 23 Ind. Lecky v. McDermott, 8 S. & R. 500 ; 311. And see Peer v. Humphrey, 2 A. Dame v. Baldwin, 8 Mass. 518 ; Towne & E. 495. V. Collins, 14 Mass. 499 ; Griffith v. 8 2 Bl. Com. 449. Fowler, 18 Vt. 390 ; Wheelwright v. * Otherwise in the country. Anony- Depeyster, 1 Johns. 471 ; Roland v. mous, 12 Mod. 521. Gundy, 5 Ohio, 202 ; Browning v. Ma- * Lyons v. Be Pass, 11 A. & E. 326 ; gill, 2 Har. & J. 308. See Heacock v. Crane v. London Dock Co. 5 Best & S. Walker, 1 Tyler, 338, 341. 313. 8 Nohle V. Adams, 7 Taunt. 59. 28 438 § 935 PARTICULAR PLACES AND THINGS. [BOOK V. in the wrong-doer, may be so transferred to a bona fide pur- chaser for a valuable consideration that the original owner, by whose laches they passed out of his own possession, cannot retake them.^ § 934. Wreck, — says Blackstone, " by the ancient common law, was where any ship was lost at sea, and the goods or cargo were thrown upon the land ; in which case these goods, so wrecked, were adjudged to belong to the king. For it was held that, by the loss of the ship, all property was gone out of the original owner." ^ This doctrine was gradually modified by statutes and by the courts ; so that, at tlie present time, probably nothing of it is left in England, certainly nothing in the United States. The marine disaster does not take from the owner his property ; ^ if it floats to land he may have it ; * if derelict at sea, though he may have it, salvage is allowed.^ The subject of wrecks is in some measure regulated by statutes. § 935. Goods Abandoned. — One may relinquish his owner- ship. He does so, for example, if he casts from him an article of personal property, intending to abandon it. The ownership is thereby transferred to any one who takes it with the intent to appropriate it to himself ; ® though, until such taking, it remains in the original owner.' But not everything technically called an abandonment has this effect. Thus, goods abandoned at sea do not become the property of the finder ; ^ for the relinquishment is not voluntary, with the intent to terminate the ownership. And, in marine insurance, the abandonment of a vessel or cargo to the underwriters 1 Explained Bishop Con. § 672, 673 ; actual taking of the thing into posses- Sheppard v. Shoolhred, Car. & M. 61 ; sion, in distinction from a mere finding Titcomb v. Wood, 38 Maine, 561 ; and the manifestation of an intent to Mowrey v. Walsh, 8 Cow. 238. See appropriate it. Eads d. Brazelton, 22 Dodd V. Arnold, 28 Texas, 97. Ark. 499. 2 1 Bl. Com. 290. 5 The Island City, 1 Black, 121 ; ' 2 Kent Com. 321-323; Hamilton ». The Laura, 14 Wal. 336. And see 2 Davis, 6 Bur. 2732 ; Constable's Case, 5 Bishop Grim. Law, 876 and note. Co. 106 a. ° 2 Bishop Crim. Law, § 878 ; Mc- 4 Wyndham's Case, 2 Mod. 294 ; Goon v. Ankeny, 11 111. 558. Whitwell V. Wells, 24 Pick. 25 ; Clark ' Haynes's Case, 12 Co. 113. V. Chamberlain, 2 M. & W. 78. And « Whitwell v. Wells, 24 Pick. 25. see 2 Kent Com. 359. There must be an 484 CHAP. XXXIX.] PERSONAL CHATTELS. § 936 simply transfers the ownership to them, and no third person can acquire an interest therein.^ § 936. Lost. — To lose goods is not to ahandon them. Therefore the ownership does not pass away from the loser,^ even after a long lapse of time.^ This is well illustrated in the criminal law, wherein it is by most courts held that there may be larceny of lost goods.* But the finder of them may, as against all persons except the owner, treat them as aban- doned, so that his title to them will be valid unless or until the owner appears and claims them.^ If, for example, one picks up an article, from the floor of another's shop, which a stranger has there dropped and lost,^ or lost money from the floor of a hotel "^ or railroad car,^ he may hold it against the claim of the proprietor of the place. But equally in the law of larceny and in civil jurisprudence, a thing mislaid ^ is not to be treated as lost within cur present rules. Following which distinction, wlien one entering a barber's shop found upon a table the pocket-book of a preceding customer, acci- dentally left there, the court held that he was not entitled to retain it as against the shop-owner, though at the time of the litigation it did not appear who was the owner of the pocket- book.i" This distinction may appear, to one reflecting on it, a little thin and practically too uncertain. If, in the case of the money left on the barber's table, it had been dropped on his floor, the person discovering and claiming it would have held it ; being put a little higher, on the table, it went to the shop-owner. Still, as this sort of question must be settled in some way, the solution it has thus received is open to as little 1 3 Kent Com. 318, 319 ; Comegys mngham, 1 Met. 112 ; Tancil v. Sea- V. Vasse, 1 Pet. 193, 214 ; The Mohawk, ton, 28 Grat. 601 ; Bowen v. Sullivan, 8 Wal. 153. 62 Ind. 281. ' Armory v. Delamirie, 1 Stra. 505 ; ° Bridges v. Hawkesworth, 15 Jnr. McLaughlin v. Waite, 5 Wend. 404 ; 1079. Chase v. Corcoran, 106 Mass. 286 ; ' Hamaker v. Blanchard, 9 Norris, Wood V. Pierson, 45 Mich. 313. Pa. 377. ' Livermore u. White, 74 Maine, * Tatum v. Sharpless, 6 Philad. 18. 452. ' 2 Bishop Critn. Law, § 879 ; Kin- * 2 Bishop Crim. Law, § 880-883. caid v. Eaton, 98 Mass. 139. » Armory v. Delamirie, supra ; Durfee '" MoAvoy v. Medina, 11 Allen, 548. V. Jones, 11 R. L 588 ; Ellery v. Cun- ... 435 § 938 PARTICULAR PLACES AND THINGS. [BOOK V. objection as any. If the owner of the money, while laying it upon the table, had in words committed it to the barber, by whom he was unknown, for safe keeping, then had forgotten what he did with it, no one would question the barber's supe- rior right. And it may well be assumed that he meant some- thing like this when, instead of dropping it on the floor, he laid it on the table, — an act of care which could proceed only from a purpose. Furthermore, the administering of the law is impossible without an occasional recognition of lines more or less shadowy. Again, — § 937. Care of Thing found. — Though one finding a thing is under no duty carefully to keep it,^ if he takes and misuses it to its injury he must respond in damages to its owner should he appear.^ § 938. Mixing. — Where the owner of goods wrongfully mixes them with another's, so that they cannot be identified and separated, he thereby relinquishes them to the other, aud is entitled to no part of the intermixture.^ For he can derive no advantage from his own wrong,* and the party without fault is under no duty to surrender any of his goods to pre- vent loss to the tort-feasor.^ But where the goods are distin- guishable,® or the intermingling occurred without the owner's fraud or fault,'' he will be protected in such way as the cir- cumstances permit.* Thus, if the logs of two owners become innocently intermingled past identification, each may have his proportion of the lumber they produce.® Or if, for storage, the grain of different persons is by the warehouseman put 1 Ante, § 446. 86 ; Ward u. Eires, 1 Eol. 133 ; Weil 2 Mulgrave v. Ogden, Cro. Eliz. v. Silverstone, 6 Bush, 698. 219 ; MurgoO v. Cogswell, 1 B. D. * Ante, § 54 et seq. Smith, 359. 6 gimg p. Glazener, 14 Ala. 695. 8 The Idaho, 93 U. S. 575, 585 ; « GoflF v. Brainerd, 58 Vt 468 ; Eyder i). ' Hathaway, 21 Pick. 298; Smith v. Sanborn, 6 Gray, 1 34 ; Queen Hart V. Ten Eyok, 2 Johns. Ch. 62 ; v. Wernwag, 97 N. C. 383. Steams v. Herriok, 132 Mass. 114 ; ' Pratt v. Bryant,- 20 Vt. 333. Adams v. "Wildes, 107 Mass. 123 ; Beach ' Wetherbee v. Green, 22 Mich. 311; V. Schmultz, 20 111. 185 ; Brackenridge Pratt v. Bryant, 20 Vt. 333 ; Monmouth V. Holland, 2 Blackf. 377 ; Lehman v. First Nat. Bank v. Dunbar, 118 III. 625. Kelly, 68 Ala. 192 ; Seavy v. Dearborn, ' Martin v. Mason, 78 Maine, 452. 19 N. H. 351 ; Robinson v. Holt, 39 See Clark v. Nelson Lumber Co. 34 N. H. 557 ; Brakeley v. Tuttle, 3 W. Va. Minn. 289. 436 CHAP. XXXIX.] PERSONAL CHATTELS. together pursuant to a usage not objected to, the mass will be treated by the law as their common property, owned in propor- tion to their respective deposits. In which proportion, they must severally sustain the loss from any shrinkage.^ And after the shares of all but one have been withdrawn, the latter owns the remainder in severalty, and he can hold it against the warehouseman and his transferees so long as it can be identified.^ Views have occasionally been expressed in some measure differing from these ; but the author submits that this statement of the doctrine embodies the true reasoning of the law, and the result of, at least, the better-considered authorities.^ 1 Dole V. Olmstead, 36 111. 150 ; Brown v. Northcutt, 14 Oregon, 529. And see Inglebright v. Hammond, 19 Ohio, 337. " Young V. Miles, 23 "Wis. 643. Otherwise while the shares remain mixed. Preston v. Witherspoon, 109 Ind. 457. As to fowls mixed, see Leon- ard V. Belknap, 47 Vt. 602. s Another View. — Cooley, Torts, 53, 54, after stating some propositions in substantial accord with my text, adds : " Even if the commingling were malicious or fraudulent, a rule of law which would take from the wrong-doer the whole, when to restore to the other his proportion would do him full jus- tice, would be a rule whoUy out of har- mony with the general rules of civil remedy, not only because it would award to one party a redress beyond Ms loss, but also because it would compel the other party to pay, not damages, but a penalty. The infliction of penalties by way of civil remedy is not favored in the law [referring to WiUard Eq. 56 ; Sanders v. Pope, 12 Ves. 282 ; Grigg V. Landis, 6 C. E. Green, 494] ; on the other hand, the law inclines against them, construing contracts so as to avoid them, and in many cases giving relief against them in equity, where the parties have expressly stipulated for them. [Referring to Crane v. Dwyer, 9 Mich. 360 ; White v. Port Huron, &c. Ey. 13 Mich. 356 ; Wing v. Bailey, 14 Mich. 83 ; Jaquith v. Hudson, 5 Mich. 123 ; Grigg v. Landis, 6 C. E. Green, 494 ; MoKim ti. White Hall Co. 2 Md. Ch. 510 ; Skinner v. Dayton, 2 Johns. Ch. 526 ; Skinner v. White, 17 Johns. 357 ; Livingston v. Tompkins, 4 Johns. Ch. 415 ; Cythe o. La Fontain, 51 Barb. 186 ; Baxter v. Lansing, 7 Paige, 350 ; Hagar v. Buck, 44 Vt. 285 ; Walker v. Wheeler, 2 Conn. 299 ; Bowen v. Bowen, 20 Conn. 127 ; War- ner V. Bennett, 31 Conn. 468 ; Hors- burg u. Baker, 1 Pet. 232 ; Smith o. Jewett, 40 N. H. 530 ; Sanders v. Pope, 12 Ves. 282 ; Davis v. West, 12 Ves. 475 ; Northcote v. Duke, Amb. 511 ; 2 Story Eq. Jur. § 1319 ; Willard Eq. Jur. 56.] Therefore the law in these cases does justice between the parties as nearly as, under the circumstances, is practicable, by dividing between them the commingled mass according to their respective propoi'tions. [Referring to, Lupton V. White, 15 Ves. 432 ; Spence V. Union Marine Ins. Co. Law Rep. 3 C. P. 427; Ryder®. Hathaway, 21 Pick. 298 ; Robinson v. Holt, 39 N. H. 557 ; Moore v. Bowman, 47 N. H. 494 ; Willard v. Rice, 11 Met. 493 ; Bryant V. Ware, 30 Maine, 295 ; Hesseltine v. Stockwell, 80 Maine, 237 ; Holbrook v. Hyde, 1 Vt. 286 ; Adams v. Meyers, 1 Saw. 306.] Nor is this method of ar- ranging their interests limited to the 437 §939 PABTICULAB PLACES AND THINGS. [book V. § 939. Form Changed. — Though the form of personal prop- erty has heen rightfully or wrongfully changed, while the owner has not parted with his title, he may have it, wherever found, in its new shape.^ Thus, one whose wood another has converted into coal may, if he chooses, take the coal.^ And a person whose corn another has wrongfully made into whiskey is entitled to the whiskey .^ If a trespasser cuts trees and makes them into railroad ties, the owner of the land may have cases in which the commingled mass is exactly the same with the separate par- ticles : it is sufficient that it is practi- cally the same, so that the separation of that which is equivalent in quantity or measure wiU. give to the party whose property has been wrongfully taken that which is substantially equivalent in kind and value. This rule has been ap- plied to the case of quantities of saw- logs, belonging to different parties, but commingled together ; and it is held that to give the party whose logs are lost the option of taking from the mass an equivalent in quantity and quality, or of demanding the value, is all that in justice he can require." Eeferring to Stephenson v. Little, 10 Mich. 433 ; Jenkins v. Steanka, 19 Wis. 139 ; Eyder V. Hathaway, 21 Pick. 298 ; Hesseltine V. Stockwell, 30 Maine, 237 ; Smith v. Morrill, 56 Maine, 666. I add a refer- ence to Schulenberg o. Harriman, 21 Wal. 44, 64. Of Course, the reader who is investigating this subject will look into the cases cited on the one side and on the other, and determine for himself how far they sustain any particular proposition. As I understand the ques- tion, when two persons appear before the court equally innocent, there must be an equitable adjustment of their re- spective claims, or justice cannot be done between them. And for a case of this sort the methods stated in the fore- going extract appear to be good. But if a man, to perpetrate a fraud on an- other, mingles goods with his past iden- tification, the law explained in my text does ndt, as this extract seems to imply, 438 undertake to forfeit them as a penalty for the wrong. It simply refuses to listen to one who comes complaining that he had endeavored to violate the law's rules of justice, but by miscarriage had failed, and asking the court to help him out of the difficulty. Or, to put the case less strongly, though the court may resort to equitable principles for the adjustment of the rights of two inno- cent persons whose goods have been un- fortunately commingled, a fraudulent one, who has unsuccessfully attempted to cheat the other by a mixing, ought, at least, to be compelled to prove title to the goods he demands. And he does not do this, in accordance with the or- dinary rules of the law, when he shows that some of the goods may probably be his, while others are not, and he can give no intimation which of the particu- lar ones are of the one class and which of tlie other. Certainly it is not a vio- lation of the ordinary rules of legal jus- tice for the court to refuse to pick up a stumbling assaulter of the rights of in- nocent men. On the other hand, it is the common course of the court, and but common justice, to leave such a party, unaided by the judicial hand, to lie in the bed which he has made for himself. Ante, § 54-65. ^ Betts V. Lee, 5 Johns. 348 ; Curtis V. Groat, 6 Johns. 168 ; Babeock v. Gill, 10 Johns. 287 ; Freeman v. Mc- Lennan, 26 Kan. 151 ; Stevens v. Briggs, 5 Pick. 177 ; Worth v. Northam, 4 Ire. 102 ; Gallup v. Josselyn, 7 Vt. 834. 2 Riddle v. Driver, 12 Ala. 590. * Silsbury v. MoCoon, 3 Comst. 379. CHAP. XXXIX.] PERSONAL CHATTELS. § 941 them even as against an innocent purchaser.^ Nor is it mate- rial what the transmutation is ; while the owner can trace and identify the thing,^ he may have it.^ Yet this doctrine has its equitable limits, not probably definable by exact rule. Thus, it has been deemed that one taking another's materials in good faith * believing them to be his, and manufacturing them by much labor, — as, where he converts standing trees into hoops, — may hold the product as against the true owner of the materials.^ Or, if the materials of two or more persons enter into a manufactured article, it belongs to the one who furnished the principal part.^ § 940. A Lawsuit — may transmute the ownership of a chattel, in the way pointed out in a preceding chapter.^ § 941. The Doctrine of this Cha/pter restated. The duty of the owner of property to take such care of it, and keep it in such a condition, as to avoid injuries to third persons coming lawfully in contact with it, does not depend on the sort of property, but it is the same in respect of per- sonal chattels as of real estate. One is not required to em- ploy precautions in the interest of trespassers ; but, for a neglect whereby harm comes to another in lawful contact with a chattel, the owner or person having the charge of it must respond in damages. On the other hand, he who unlawfully injures another's chattel, or disturbs the apparent ownership, or the possession, may be compelled by the owner to make him proper compensation. A lawsuit to enforce this sort of claim will in some circumstances transmit the ownership to the wrong-doer, in part or full return for the money which the court requires him to pay. Otherwise no wrong done to it or its owner will deprive him of the ownership. 1 Strubbee v. Cincinnati Ry. Trns- 363; Hyde u.'Cookson, 21 Barb. 92; tees, 78 Ey. 481. Betts v. Lee, 5 Johns. 348. 2 Silsbury v. McCoon, 4 Denio, 332. 6 -Wetherbee v. Green, 22 Mich. 311. « Williams v. MeClanahan, 3 Met. » Pulcifer v. Page, 32 Maine, 404 ; Ky. 420. Merritt v. Johnson, 7 Johns. 473 ; Greg- * Otherwise if in bad faith, or " wil- ory v. Stryker, 2 Denio, 628. fully as a trespasser." 2 Kent Com. ' Ante, § 399, 408. 439 § 943 PARTICULAR PLACES AND THINGS. [BOOK V. CHAPTER XL. PRIVATE DEFENCE OF SELF AND PROPERTY. § 942. In Another 'Work, — the author has so far treated of this subject as to render any full exposition of it here unneces- sary.i Yet a few elucidations are desirable. Thus, — § 943. Trespassing Persons and their Animals. — We have considered by what means one may remove trespassing per- sons from his house or grounds, and what automatic forces he may employ as preventives.^ He may with due care drive from his land another's cattle or other creatures unlawfully there,^ yet he must not kill or harm them.* Beyond which, he has his action for damages against the general or special owner.5 Assuming that a man may set on his land spring- guns as a protection against trespassing men who have notice of them,^ there appears to be no corresponding doctrine as to their trespassing animals ; for the owner of an animal cannot teach it the precautions which he might himself exercise.^ 1 1 Bishop Crim. Law, § 836-877. 258 ; Matthews ». Fiestel, 2 E. D. !* Ante, § 824, 825, 846, 847 ; Abt Smith, 90 ; Dodson v. Mock, 4 Dev. & V. Burgheim, 80 111. 92 ; Foshinder v. Bat. 146 ; Melntire v. Plaisted, 57 Svitak, 16 Keh. 499. N. H. 606 ; Hobson v. Perry, 1 Hill, fi« Gilman v. Emery, 54 Maine, 460 ; S. C. 277 ; McCoy ». Phillips, 4 Rich. Wood V. La Rue, 9 Mich. 158 ; Totten 463 ; Ford v. Taggart, 4 Texas, 492. V. Cole, 33 Mo. 138 ; Humphrey v. ^ Dolph v. Ferris, 7 Watts & S. 867 Douglass, 11 Vt. 22, 10 Vt. 71 ; Cory Weymouth v. Gile, 72 Maine, 446 V. Little, 6 N. H. 213 ; Davis v. Camp- Noyes v. Colby, 10 Fost. N. H. 143 bell, 23 Vt. 236. Partenheimer v. Van Order, 20 Barb. * Ante, § 550 ; Com. Dig. Trespass, 479. D ; Spray v. Ammerman, 66 111. 309 ; « Ante, § 847. Ladue v. Branch, 42 Vt. 574 ; Cantrell ' Dog-spears. — Still, in England, V. Adderholt, 28 Ga. 239; Tyner v. after some difference of judicial opinion, Cory, 5 Ind. 216 ; Bost ■». Mingues, 64 it appears to be settled that one may, N. C. 44 ; Livermore ». Batchelder, 141 without responsibility for a dog killed, Mass. 179 ; Amick v. O'Hara, 6 Blackf. set dog-spears for the preservation of his 440 CHAP. XL.] DEFENCE OF SELF AND PROPERTY. § 946 When, therefore, one to prevent a repetition of trespasses by his neighbor's fowls, spread on his land poisoned food, and notified him of it, he was still held liable for injuries to them from eating it during a subsequent trespass.^ A fortiori, one who has told the owner of hens that he will kill them when next found on his grounds must pay the damages if he does it.^ Practically the right of action for damages is often a very in- adequate remedy for petty and persistent annoyances from neighboring poultry and dogs,^ and the subject is worthy of more legislative attention than it generally receives. § 944. Resistmg Trespass to Person. — One may resist a trespass to his person, therein employing the force necessary, yet no more.* In defence of his castle,^,or to preserve his life or avoid great bodily harm, he may, when inevitable, kill the assailant ; but in other circumstances he must yield, and seek redress from the law, rather than take lif e.^ Hence, — § 945. To Property. — No trespass to mere property, not done with intent to perpetrate a felony, will justify the killing of the aggressor, or the committing of a riot, forcible de- tainer, or other crime ; yet, short of this, the owner may make resistance by whatever force is necessary.^ And, if the de- fence of one's personalty requires, not otherwise, he may kill another's attacking animal.^ § 946. The Doctrine of this Chapter restated. While the law tenders its judicial redress to every one in- jured in person or property, it also accords to him certain natural rights of defending each by his own private strength, game, especially if he gives notice to the 1 lb. § 875 ; Corey v. People, 45 owner of the dog. Jordin v. Crump, 8 Barb. 262 ; United States v. Bartle, 1 M. & W. 782, and the cases cited by Cranch C. C. 236 ; Commonwealth «. the court. Kennard, 8 Pick. 133. 1 Johnson v. Patterson, 14 Conn. 1. ^ Wright v. Bamscot, 1 Saund. 84 ; 2 Clark V. Keliher, 107 Mass. 406. Morse v. Nixon, 8 Jones, N. C. 35 ; * See ante, § 68. King v. Kline, 6 Barr, 318 ; Ford ■». * Ante, § 199, 200. Taggart, 4 Texas, 492 ; Boecher v. Lutz, 5 Ante, § 816. 13 Daly, 28 ; Livermore ». Batchelder, 6 1 Bishop Grim. Law, § 858, 865, 141 Mass. 179 ; Hinckley v. Emerson, 4 868-870, and connected places. Cow. 851. 441 § 946 PARTICULAR PLACES AND THINGS. [BOOK V. And herein he may have the assistance of others.^ But, except to save his own life, to protect himself from great bodily harm, to resist a breaking into his castle, or the commission of a felony ,2 he must avoid the taking of human life. And, beyond this, he will be a wrong-doer whenever he opposes a trespasser by a force needless in kind or degree, thereby inflicting on him an avoidable injury. To the criminal law he will be an- swerable whenever his resistance is so tumultuous as to create a breach of the peace ; but not always to the civil.^ A tres- passing animal may be driven away ; yet not needlessly beaten to its damage, or killed, because this extreme measure is not ordinarily necessary. But if necessary to the defence of the person,* or even of property,^ the beating or killing will be permitted. 1 1 Bisliop Crim. Law, § 877. see Denver, &o. Ey. v. Harris, 122 IT. S. 2 lb. § 842, 843, 849, 853, 867. 597. » Ante, § 197 and note, 825. And « Ante, § 106. 5 Ante, § 945. 442 CHAP. XLr.] PUBLIC WAYS. § 948 CHAPTER XLI. PUBLIC WAYS. § 947. Introduction. 94^-956. In General of Subject. 957-988. Establishing and Repairing. 989-1001. Owners and Dwellers along. 1002-1004. Third Persons Injuring. . 1005-1021. Rights and Wrongs in Using. 1022. Doctrine of Chapter reiitated. § 947. How Chapter divided. — We shall consider, I. In General of the Subject ; II. Establishing and Repairing the Way ; III. The Owners and Dwellers along Public Ways ; IV. Third Persons Injuring a Public Way; V. Rights and Wrongs in using Public Ways. I. Jbi Q-eneral of the Subject. § 948. Defined. — A public way, otherwise termed a high- way ,i is any way,^ whether upon land or water, over which all the public have the equal right to pass,^ either generally, or in a defined and limited manner,* or upon a condition, or to transport goods.® Still, — 1 3 Kent Com. 432 ; Reg. v. Saintiff, supra ; Stafford v. Coyney, 7 B. & C. Holt, 129, 6 Mod. 255 ; Allen v. Or- 257. mond, 8 East, 4, 6 ; Vantilburgh v. s 2 Bishop Crim. Law, § 1266. Shann, 4 Zab. 740; Commonwealth v. " Every thoroughfare which is used by Hubbard, 24 Pick. 98, 101. the public, and ia, in the language 3 Ante, § 866. of the English books, ' common to all ' Rex V. Richards, 8 T. E. 634, 637 ; the kipg's subjects,' is a highway, People ». Jackson, 7 Mich. 432. whether it be a carriage-way, a horse- * "The word 'highway' is the ge- way, a footway, or a navigable river." nus of all public ways, as well cart, 3 Kent Com. 432. Consult also Mac- horse, and footway." Reg. v. Saintiff, ember v. Nichols, 34 Mich. 212 ; Poole 443 § 952 PARTICULAR PLACES AND THINGS. [BOOK V. § 949. Flexible — (in Statute). — The term " highway," like most others even in our legal language, is a little flexible in meaning. So that, for example, it may in a statute signify something more or less than as just defined.^ Now, — § 950. Civil and CJriminai. — The subject of public ways belongs both to our civil and criminal law. Obstructions of them and neglects to keep them in repair are indictable.^ Hence, for the crime viewed as a wrong to the public, a mere partaker of the general detriment cannot maintain an action ; but one who has suffered a special damage, can.^ For ex- ample, if by reason of an indictable obstruction, a person has been compelled to travel circuitously to a point which he had occasion to reach,* or if his vehicle has been overturned,^ the author of the obstruction must compensate him. In the pres- ent chapter, wrongs connected with public ways will be con- sidered only in their civil aspect. § 951. Common Carriage-ways — (" Street "). — A " street " is a highway, the term being commonly limited in meaning to one in a city or village.^ The ordinary foot and carriage- ways, whether of town or country, are those concerning which legal questions most frequently arise ; and the greater part of the elucidations of this chapter relate primarily to them, while generally the principles are equally applicable to all the rest. Some preliminaries regarding the other ways will be helpful ; thus, — § 952. Bridge. — This structure, for bearing travel over a V. Huskinson, 11 M. & W. 827 ; Wood Hunger, 91 Ind. 64 ; Wilder v. De Cou, V. VeaJ, 5 B. & Aid. 454 ; The State v. 26 Minn. 10 ; Matlock v. Hawkins, 92 Nudd, 3 Fost. N. H. 327 ; The State v. Ind. 225 ; Pain v. Patrick, 8 Mod. 289, Johnson, Phillips, N. C. 140. 291 ; Smith v. Smith, 2 Pick. 621, 623. 1 Blackstone v. Worcester, 108 Mass. * Hart v. Basset, T. Jones, 166 ; 68 ; Glass v. The State, 30 Ala. 529 ; Chichester v. Lethbridge, Willes, 71. The State v. Harden, 11 S. C. 360 ; Sen- 5 Taylor v. Boston Water Power Co. eca Road v. Auburn, &c. Rid. 8 Hill, N.Y. 12 Gray, 415. 170 ; Cleaves v. Jordan, 34 Maine, 9 ; ^ Cox v. Louisville, &c. Rid. 48 Ind. Jones V. Andover, 6 Pick. 58 ; Harding 178 ; Morris v. Bowers, Wright, Ohio, V. Medway, 10 Met. 465 ; Waterford v. ,749 j Glasgow v. St. Louis, 87 Mo. 678; Oxford, 59 Maine, 450. Brace v. New York Cent. Eld. 27 N. Y. * 2BishopCrira. Law, § 1264 etseq. 269, 271; Conner v. New Albany, 1 ' Ante, § 71 ; Patterson v. Detroit, Blackf. 88. &c. Eld. 66 Mich. 172 ; Powell v. 444 CHAP. XLI.J PUBLIC WATS. § 953 stream or chasm, is, if public, a part of the highway.^ It may be laid out, built, and kept in repair as such ; ^ or, what is more common, its construction aud care may be regulated by statutes special to bridges, or to the particular bridge.^ Sometimes, under statutory authority, it is built by private enterprise and supported by tolls.* In all which cases, those responsible for its condition must compensate persons injured through their negligence in its construction or repair, after the same rules which apply to the other parts of a public way.^ But they have not the liabilities of common carriers ; for they have not possession or even custody of the passing people and effects.^ § 953. Over Navigable Waters. — Whether, or to what ex- tent, navigable waters shall be obstructed for the benefit of land-travel is a question exclusively for the sovereign power. And though the legislature may delegate to an inferior branch of the government the authority to decide it, a mere jurisdic- tion to lay out public ways will not be construed as a permis- sion to establish a bridge over such waters.'^ A statute may give the right, and impose suitable conditions.^ In the ab- 1 Bishop Stat. Crimes, § 301 ; The ^ Heacook v. Sherman, 14 Wend. State V. Gloucester, 11 Vroom, 302. 58 ; Tift v. Jones, 74 Ga. 469 ; Whit- 2 Jaquish v. Ithaca, 36 Wis. 108 ; man v. Groveland, 131 Mass. 553 ; Bex 17. Yorkshire W. R. Lofft, 238 ; Whipple v. Walpole, 10 N. H. 130 ; Perley v. Chandler, 6 Mass. 454-; The Dygert v. Schenck, 23 Wend. 446 ; State V. Campton, 2 N. H. 513 ; The Bardwell v. Jamaica, 15 Vt. 438 ; Ban- State V. Canterbury, 8 Fost. N. H. 195 ; dall v. Cheshire Turnpike, 6 N. H. 147; Stark V. People, 118 III. 459. Weisenherg v. Winneconne, 56 Wis. 8 Sheldon v. The State, 59 Vt. 36 ; 667 ; Dickie v. Boston, &e. Eld. 131 People V. Supervisors, 21 IlL Ap. 271 ; Mass. 516 ; Nowell v. Wright, 3 Allen, McKethan o. Cumherland, 92 N. C. 166 ; Holmes v. Hamburg, 47 Iowa, 243 ; Logan v. People, 116 111. 466 ; 348 ; Townsend v. Susquehannah Tum- Pittsburg V. Clarksville, 58 N. H. 291. pike, 6 Johns. 90. * Flecker v. Rhodes, 30 Grat. 795 ; ^ Grigsby v. Chappell, 5 Rich. 443 ; Union Bridge v. Spaulding, 63 N. H. Frankfort Bridge v. Williams, 9 Dana, 298 ; Dyer v. Tuskaloosa Bridge, 2 403. Port. 296 ; Compton r. Waco Bridge, ' Commonwealth v. Coombs, 2 Mass. 62 Texas, 715 ; Maxwell v. Bay City 489, 492 ; Arundel v. MoCuUoch, 10 Bridge, 46 Mich. 278 ; Young v. Buck- Mass. 70 ; Commonwealth v. Charles- ingham, 5 Ohio, 485 ; Commonwealth town, 1 Pick. 180 ; Maxwell v. Bay City V. New Bedford Bridge, 2 Gray, 339 ; Bridge, 41 Mich. 453. People V. Thompson, 21 Wend. 235, 23 ^ Commonwealth v. Breed, 4 Pick. Wend. 537 ; Charies Eiver Bridge u. 460 ; Baltimore v. StoU, 52 Md. 435 ; Warren Bridge, 7 Pick. 344. Commonwealth v. Taunton, 7 Allen, 309. 445 § 954 PARTICULAB PLACES AND THINGS. [BOOK V. sence of any interference by the Congress or courts of the United States, this power is complete in the States ; ^ and it is believed that, as to navigable waters limited to a particular State, and so situated that there can be no connected line of commerce by water between them and any other State or country, the authority of the State is exclusive.^ But, " to regulate commerce with foreign nations and among the sev- eral States," ^ Congress may in all other cases take the con- trol and exclude the State's, both removing obstructions already made under State authority, and rendering nugatory State legislation in the future ; * the doctrine being, that while and so far as the national power sleeps, the States may act, but no longer or further. And still the United States tribu- nals will, in cases of danger to commerce suificiently extreme, interpose by injunction.^ Hitherto we have had some national legislation of a general sort regulating bridges and other like obstructions,^ and detailed permissions to build particular bridges,^ but no general taking of the jurisdiction from the States. § 954. Ferry. — A ferry is a public boat-way over waters between two points of land, or the franchise of it, for all per- sons travelling on foot or with their vehicles, paying toU.^ 1 Gilman v. Philadelphia, 3 Wal. ones. See the various law dictionaries, 713 ; Pound v. Turek, 95 U. S. 459 ; also Newton v. Cubitt, 12 C. B. N. s. Willamette Iron Bridge v. Hatch, 125 32 ; Munroe v. Thomas, 5 Cal. 470 ; U. S. 1. Thomas v. Armstrong, 7 Cal. 286 ; Mil- 2 Veazie v. Moor, 14 How. IT. S. ton v. Haden, 32 Ala. 30 ; The State v. 568, 573, 574. Wilson, 42 Maine, 9 ; New York v. 8 Const. U. S. art. 1, § 8. Starin, 106 N. Y. 1 ; Clark v. Union * Gilman v. Philadelphia, supra ; Ferry, 35 N. Y. 485. I hesitated Willamette Iron Bridge v. Hatch, supra, whether or not to insert in my defini- ^ Gilman v. Philadelphia, supra, and tion, after the common forms, the ele- other cases above cited ; Albany Bridge ment of toll. In Attorney-General v. Case, 2 Wal. 403 ; Silliman v. Hudson Boston, 123 Mass. 460, 468, Gray, C. J. Eiver Bridge, 1 Black, 582. observes ; " The definition of a ferry in " R. S. of U. S. § 5244-6255. the early books is ' a liberty by prescrip- ' Hannibal, &c. Eld. v. Missouri tion, or the king's grant, to have a boat Eiver Packet Co. 125 TJ. S. 260 ; People for passage upon a great stream for car- V. Kelly, 76 N. Y. 475 ; Miller v. New riage of horses and men for reasonable York, 109 U. S. 385. toll.' And according to all the authori- ' Bishop Stat. Crimes, § 301 a. ties, English and American, the grant Looking into the books for definitions, of a ferry, in its very nature, implies the I do not discover any very serviceable takingoftoUs by the grantee." Among 446 CHAP. XLI.] PUBLIC WAYS. 954 By the English rulings, this franchise appears to be deemed, in its nature, without express terms, exclusive ; ^ but in the United States it is otherwise,^ while yet its particular terms may render it so here.^ One who accepts the grant of a ferry is thereby " bound to keep a boat for the public good," * and reasonably to transport all applicants.^ He is a common car- rier, and is usually, not in all circumstances, said to have in his possession his passengers and their effects ; so that to them he is under the ordinary responsibilities, with the privi- leges, of other conunon carriers.® The ferries over the navi- gable waters are not, like the bridges, subject to the national jurisdiction; but they proceed from State authority uncon- trolled, sometimes from that of two adjoining States.^ It is the cases to which he refers are North, &c. Ferry v. Barker, 2 Exch. 136, 149 ; Fay, Petitioner, 15 Pick. 243, 249, 250 ; Newbiiigh, &c. Turnpike v. Mil- ler, 5 Johns. Ch. 101, 112 ; Aikin v. Western Rid. 20 N. Y. 370, 379, 386. In matter of fact our fei-ries are sup- ported by tolls. Yet, on the other hand, it is correct in language to speak of a free ferry. So, also, there may he a private "ferry," and it would not he within our definition. The keeper of a public ferry, we shall see, is a common carrier ; but the keeper of a private one — as, a mill-owner who conveys his cus- tomers to and from his miU without charge — is not such ; his liabilities to persona conveyed being less. Self v. Dunn, 42 Ga. 528. It foUows that the element of pay, expressed in our detini- tion by the word "toll," is essential to the ferry as commonly understood in our law, though there may be a differ- ent sort of "ferry" without it. And this view is confirmed by the fact that all our definitions of a "common carrier" contain also, and justly, in some form of words, the idea of remuneration. 1 Newton v. Cabitt, supra. * Fanning v. Gregoire, 16 How. TJ. S. 524 ; East Hartford v. Hartford Bridge, 10 How. U. S. 511 ; Shorter v. Smith, 9 Ga. 517 ; Perrin v. Oliver, 1 Minn. 202 ; Bush v. Peru Bridge, 3 Ind. 21 ; Power V. Athens, 99 N. Y. 592. ' New York v. Starin, supra. * Payne v. Partridge, 1 Show. 255, 257 ; Richards v. Fuqua, 28 Missis. 792 ; Letton v. Gooddeu, Law Bep. 2 Eq. 123. 5 Pate V. Henry, 5 Stew. & P. 101 ; Wallen v. McHeniy, 3 Humph. 245. 8 Harvey v. Bose, 26 Ark. 3 ; Comp- ton V. Van Volkenbnrgh, 5 Vroom, 134 Cohen v. Hume, 1 McCord, 439 ; Whit- move V. Bowman, 4 Greene, Iowa, 148 Miles V. James, 1 McCord, 157 ; Ruth- erford V. McGowen, 1 Nott & McC. 17 Pomeroy v. Donaldson, 5 Mo. 36 Fisher v. Clisbee, 12 111. 344 ; Slimmer V. Merry, 23 Iowa, 90 ; Wilson v. Ham- ilton, 4 Ohio State, 722 ; Wilson v. Shulkin, 6 Jones, N. 0. 375 ; Powell v. Mills, 37 Missis. 691 ; White v. Win- nisimmet Co. 7 Cush. 155 ; Yerkes v. Sabin, 97 Ind. 141 ; Loftus v. Union Ferry, 84 N.' Y. 455 ; Burton v. West Jersey Ferry, 114 U. S. 474. ' Conway v. Taylor, 1 Black, 603, 633 ; Marshall v. Grimes, 41 Missis. 27 ; Starin v. New York, 115 U. S. 248 ; Weld V. Chapman, 2 Iowa, 624 ; New- port V. Taylor, 16 B. Monr. 699 ; Peo- ple V. Babcock, 11 Wend. 586. 447 § 958 PAETICULAB PLACES AND THINGS. [BOOK V. perceived, therefore, that they are public ways, yet differing considerably from the land-roads. § 965. Navigable Waters. — All navigable waters, whether inland or ocean, are public ways.^ Therefore, for example, one who obstructs a river is liable in damages to a person thereby specially injured in his lawful navigation of it.^ And if one's vessel or other substance is sunk, to the endangering of navigation, he should, for the protection of the public, put over it a buoy.^ The power to authorize and remove obstruc- tions is within the explanations given as to bridges,* § 956. Other Public 'Waya. — Public squares,^ turnpike roads, plank roads, railroads,® canals,^ and some other things of the like sort are classed as public ways, but they need not be further explained in this connection. II. EstdblisMng and Mepairing the Way. § 957. Order of Exposition. — We shall consider the subject of this sub-title as to, First, By whom and how the ordaining and making of the way ; Secondly, On whom and how the responsibilities for its condition ; Thirdly, After what pre- liminaries the liability to third persons attaches ; Fourthly, In what condition the way must be put and kept ; Fifthly, Permitting steam and other cars thereon ; Sixthly, Licensing other obstructions. § 958. First. By whom and how the Ordaining and Making of the Way: — Ordaining. — The methods of creating highways differ some- what in the respective States. Perhaps in all there may be a 1 Bishop Stat. Crimes, § 302-804 ; Co. 2 Bosw. 106 ; Onderdonk v. Smith, 2 Bishop Crim. Law, § 1271 ; Walker 21 Fed. Kep. 588. V. Allen, 72 Ala. 456 ; Shaw t'. Oswego * Ante, § 953 ; Pound v. Turck, 95 Iron Co. 10 Oregon, 371 ; Eex v. Ham- U. S. 459 ; Hase v. Glover, supra, mond, 10 Mod. 382 ; Huse v. Glover, s 2 Bishop Crim. Law, § 1269. 119 IT. S. 543. 6 lb. § 1270 ; Baltimore, &c. Turn- 2 Benson v. Maiden, &e. Gas-light pike v. Cassell, 66 Md. 419 ; Nobles- Co. 6 Allen, 149 ; Rose ■». Miles, 4 M. viUe, &o. Gravel Eoad v. Cause, 76 Ind. & S. 101 ; Omslaer v. Philadelphia Co. 142. 31 Fed. Rep. 354. ' Exchange Fire Ins. Co. v. Dela- 8 Harmond ». Pearson, 1 Camp. 515. ware, &c. Canal, 10 Bosw. 180. And see Taylor v. Atlantic Mut. Ins. 448 CHAP. XLI.] PUBLIC WAYS. §959 way by dedication, which consists of the owner of land signi- fying in any appropriate manner, with or without writing, his consent that a particular portion of it may be used for a pub- lic way, followed by an acceptance by the proper authorities, or by a public use, in pursuance of such dedication.^ After a dedication, and rights acquired thereunder, the owner is es- topped to revoke it;^ and, after its acceptance and use by a municipal corporation, it is estopped in like manner.^ There are also public ways by prescription.^ But in all our States the common method is for the proper officers to lay out the way under the authority of a statute, dispossessing when necessary the land-owner by the right of eminent domain, and making him compensation.* § 959. 'Who Build and Repair. — The statutes determine what person or corporation shall build and repair the high- ways. Not often, but in exceptional instances, the duty is cast upon the adjoining land-owners either generally,® or in respect of sidewalks,^ or paving ; * or, in consideration of the 1 ManderscHd v. Dubuqne, 29 Iowa, 73 ; Brooks v. Topeka, 34 Kan. 277 ; In re Pearl St. 1 Am. Pa. 565 ; Kath- man u. Norenberg, 21 Neb. 467 ; St. Louis V. St. Louis University, 88 Mo. 155 ; Prouty v. Bell, 44 Vt. 72 ; Wisby V. Bonte, 19 Ohio State, 238 ; Hawley V. Baltimore, 33 Md. 270 ; Moses v. St. Louis Sect. Dock Co. 84 Mo. 242 ; Eo- zell V. Andrews, 103 N. Y. 150 ; Boj'er V. The State, 16 Ind. 451 ; Macon v. Franklin, 12 Ga, 239 ; Hoole *. Attor- ney-General, 22 Ala. 190 ; Proctor v. Lewiston, 25 111. 153 ; Banks v. Og- den, 2 Wal. 57 ; Curtiss v. Hoyt, 19 Conn. 154 ; Simmons v. Cornell, 1 R. I. 519 ; Baldwin v. Buffalo, 35 N. Y. 375 ; Kennedy v. Cumberland, 65 Md. 514. 2 Macon v. Franklin, 12 Ga. 239 ; Haynea v. Thomas, 7 Ind. 38 ; Mankato V. Willard, 13 Minn. 13 ; Leffler v. Bur- lington, 18 Iowa, 361 ; Cincinnati it. Whit*, 6 Pet. 431. ' Leavenworth v. Laing, 6 Kan. 274 ; Gallagher v. St. Paul, 28 Fed. Eep. 305. * Veale v. Boston, 135 Mass. 187 ; 29 Krier's Private Boad, 23 Smith, Pa. 109 ; Bumham ». McQuesten, 48 N. H. 446 ; Green ». Bethea, 30 Ga. 896 ; Commonwealth v. Old Colony, &c. Eld. 14 Gray, 93 ; Lewiston v. Proctor, 27 111. 414; Stetson v. Faxon, 19 Pick. 147. 5 Ante, § 119, 120 ; Eandall v. Con- way, 63 N. H. 513 ; Hendershot v. The State, 44 Ohio Stat«, 208 ; Galbraith v. Littiech, 73 111. 209 ; Warren v. Davis, 43 Ohio State, 447 ; Taylor v. Wobum, 130 Mass. 494 ; Winchester v. Capron, 63 N. H. 605 ; Trickey v. Sehlader, 52 111. 78 ; Cooper v. Detroit, 42 Mich. 584 ; Bkckman v. Halves, 72 Ind. 515 ; United States v. Eailroad Bridge, 6 McLean, 517. ' Menasha b. The Portage, 26 Wis. 534. 7 Marquette v. Cleary, 37 Mich. 296 ; Manchester v. Hartford, 30 Conn. 118 ; Plattsmouth v. Mitchell, 20 Neb. 228. " Baltimore v. Johns Hopkins Hos- pital, 56 Md. 1 ; Sheley v. Detroit, 45 Mich. 431. 449 § 961 PARTICULAR PLACES AND THINGS. [BOOK V. value of the way to the land-owner, he assumes it by agree- ment.^ But commonly this work is done by a municipal cor- poration on which a statute casts the duty.^ If the corporation accepts what a private person has built, it is under the same obligation to keep it in repair, followed by the same liabilities for neglect, as if constructed by itself.^ Hence, — § 960. Secondliy. On whom and how the Mesponsibilities for , , its Condition : — Determined by Statute. — The person or corporation build- ing a public way is not necessarily responsible thereafter for its condition.* This question is in many cases — as, for ex- ample, in respect of township highways in New England ^ — settled by express statutory terms.® But oftener the respon- sibility comes indirectly from the statute, as a result of the rule that the person or corporation whereon the law casts the duty of construction or repair is answerable to third persons injured through its neglect.'' The exceptions to this rule re- late to certain municipal or quasi municipal corporations, under the interpjretations of a part of the States, — a question elucidated in a preceding chapter.^ And, — § 961. Under Contract. — ■- Though the corporation respon- sible for the condition of the streets lets out the work of repair to a contractor, its liabilities are not thereby diminished, — as explained in a preceding chapter.® Nor is it made otherwise 1 Lowell V. Proprietors of Looks, &e. 507 ; Perkins v. Oxford, 66 Maine, 545 ; 104 Mass. 18. See Brookdeld «. Walker, Acker v. Anderson, 20 S. 0. 495 ; Wil- 100 Mass. 94. lard v. Sherburne, 59 Vt. 361 ; Mehols ^ Ante, § 758. v. Minneapolis, 30 Minn. 545. ' Manchester ■<). Hartford, supra ; 7 Ante, § 757, 758, 766 ; Tritz v. The State v. Useful Manuf. Soc. 15 Kansas, 84 Mo. 632 ; Russell v. Canas- Vroom, 502. tota, 98 N. Y. 496 ; Marquette v. Cleary, * Carpenter v. Nashua, 58 N. H. 37; 37 Mich. 296 ; Sheridan d.- Salem, 14 Nelson v. Ganisteo, 100 JJ. Y. 89 ; Tay- Oregon, 328 ; Saulsbury v. Ithaca, 94 lor V. Yonkers, 105 BT. Y, 202 ; Platts- N. Y. 27 ; Bohen v. Waseca, 32 Minn, mouth V. Mitchell, 20 Neb. 228 ; 176 ; Bunch v. Edenton, 90 N. C. Streeter v. Breckemridge, 23 Mo. Ap. 431. 244 ; Barnes o. Newton, 46 Iowa, 567 ; 8 Ante, § 749, 750, 755-759, 766. Willey V. Ellsworth, 64 Maine, 57. » Ante, § 602-605 ; Jacksonville v. * Ante, § 766. ' Drew, 19 Fla. 106 ; Brooks v. Somer- ^ Papworth v. Milwaukee, ,64 Wis. ville, 106 Mass. 271; Hawxhurst ». New 389 ; Wentworth «. Rochester, 63 N. H. York, 43 Hun, 588. 244 ; Bemls v. Arlington, 114 Mass. 450 CHAP.' XLI.] PUBLIC WATS. § 964 by a statute requiring the contract to be with the lowest bidder.^ Of course, — § 962. Two Answerable. -— The contractor, in a case like this, would himself be answerable to any person suffering through a negligent performance of his contract duty.^ On the same primiiple, if a house-owner on a street has a cellar- covering, which forms a part of the sidewalk, defectively made and secured, and the city has notice of it, such owner and city are severally and jointly compellable to pay the damages to a person injured by breaking through the covering.^ And in all other cases within the same reason, a like liability of two or more parties — as, the municipal corporation and an indi- vidual — follows.* § 963. Thirdly. After what Preliminaries the Liability to Third Persons attaches : — Negligence. — It must be borne in mind that, in the absence of purposed wrong, the ground of liability in these cases is negligence ; for example, a city is answerable to a person in- jured by a defect in a street, because it neglected some duty relating thereto. And without negligence there is no liability.^ Thus,— § 964. Latent Defect. — For the ill consequence of latent defects in a way, existing without any default in the mimici- pality, it is not responsible unless, after due notice and time, 1 Mahanoy v. Scholly, 3 Norris, Pa. Breen, 77 Ind. 29. And see Moore ». 136. Gadsden, 93 N. Y. 12 ; Rouse v. Somer- 2 Ante, § 518, 522, 529, 530, 602- ville, 130 Mass. 361 ; Delory v. Canny, 607, 960 ; Brooks v. Somerville, 106 144 Mass. 445 ; Moore v. Gadsden, 87 Mass. 271. N. Y. 84. » Peoria v. Simpson, 110 111. 294. » Hume v. New York, 47 N. Y. 639, And see Stephani w. Brown, 40 111. 646 ; Taylor v. Yonkers, 105 N. Y. 202, 428. 205; Chicago v. Smith, 48 111. 107 * Sides V. Portsmouth, 69 N. H. 24 ; Stafford v. Oskaloosa, 57 Iowa, 748 Grove e. Kansas, 75 Mo. 672 ; Dotton Chicago v. Glanville, 18 Bradw. 308 V. Albion, 50 Mich. 129 ; Scranton v. Goodale v. Portage Lake Bridge, 55 Catterson, 13 Norris, Pa. 202 ; Barnes Mich. 413 ; Davis v. Central Vei-mont V. Newton, 46 Iowa, 567 ; Mansfield i>. Rid. 55 Vt. 84. This doctrine is in Moore, 21 111. Ap. 326 ; Eunz v. Troy, some States qualified by the terms of 104 N. Y. 344 ; Urquhart v. Ogdens- the statute. Ward v. Jefferson, 24 Wis. burgh, 97 N. Y. 238 ; Taylor •». Yon- 342 ; Goodnongh v. Oshkosh, 24 Wis. keis, 105 N. Y. 202 ; Huntington v. 549. 451 § 966 PARTICULAR PLACES AND THINGS. [BOOK V. it neglects its duty of repair ,i or unless it was discoverable on due care.2 Again, — § 965. Independent Causes. — If, from causes for which the municipality is not responsible, — as, from the owner of a coal-hole under a sidewalk not keeping its cover properly se- cured,^ or from a stranger's removing a protecting barrier * or doing some other like unlawful act,^ or from the operation of the elements of- nature,® — the way becomes unsafe, the municipality is not responsible for the consequences until, after notice or something equivalent thereto, it neglects to make the repairs, or unless in some other manner it is placed in default. But where, by any proper showing, its default therein appears, responsibility attaches.^ Further as to — § 966. Notice. — The notice which will charge the munici- pality need not be actual ; facts from which it is inferable will suffice.^ A common case is where the jury infer it from the nature of the defect and the locality and duration of its existence.® Some appear to hold, that notice to any inhab- itant of a town,^" or member of a town board of supervisors,^ or officer of a city ,^2 though having no special authority over the ways, is notice to the town or city ; but others deem that, to constitute actual notice, in distipction from what is in- 1 Chicago V. Murphy, 84 lU. 224 ; Ry. 83 111. 405 ; Turner v. Indianapo- Scanlon v. New York, 12 Daly, 81 ; lis, 96 Ind. 51 ; Aurora v. Bitner, 100 Hanscom v. Boston, 141 Mass. 242. Ind. 396 ; Nichols v. Minneapolis, 33 And see Ozier v. Hineshurgh, 44 Vt. Minn. 430 ; Dotton v. Albion, 57 Mich. 220. 575 ; Sikes v. Manchester, 59 Iowa, 65. 2 Squires v. Chillicothe, 89 Mo. 226; « York v. Spellman, 19 Neb. 357 ; ■Weisenbcig v. Appleton, 26 Wis. 56; Heam v. Chicago, 20 Bradw. 249. Burt V. Boston, 122 Mass. 223. ^ Larmon v. District of Columbia, 5 ' Hanscom v. Boston, 141 Mass. 242. Mackey, 330 ; Hall v. Fond du Lac, * Klatt V. Milwaukee, 53 Wis. 196 ; 42 Wis. 274 ; Woodbury v. District of Mullen V. Rutland, 55 Vt. 77. Columbia, 5 Mackey, 127 ; EvansviUe 5 Requa v. Rochester, 45 N. Y. 129. v. Wilter, 86 Ind. 414 ; Washington v. 6 Taylor ». Yonkers, 105 N. Y. 202 ; Small, 86 Ind. 462 ; CoUey v. West- Ward V. Jefferson, 24 Wis. 342, 343, brook, 57 Maine, 181 ; Holt v. Penob- 344. See Blood v. Hnbbardston, 121 scot, 56 Maine, 15 ; Cook v. Anamosa, Mass. 233 ; Jaquish v. Ithaca, 36 Wis. 66 Iowa, 427. 108. i» Ham v. Wales, 58 Maine, 222. ' Lincoln v. Woodward, 19 Neb. ^i Jaquish v. Ithaca, 36 Wis. 108. 259 ; Cloughessey v. Waterbury, 51 ^ Dewey v. Detroit, 15 Mich. 807. Conn. 405 ; Schmidt v. Chicago, &c. 452 CHAP. XLI.] PUBLIC WAYS. § 969 ferable as just stated, it must be to one having some authority or special duty in the premises.^ Of course, — § 967. Not required. — In cases not within the reason re- quiring notice, none need be given. So that, for example, where a member of the police force, after painting the trap doors of a police station, carelessly propped them open, and a person fell upon them and was injured, the city was adjudged liable; the negligent act having proceeded from one of its own agents.2 And this rule applies to all cases in which the default is, in contemplation of law, that of the municipality itself.* Obviously, tljerefore, this doctrine of notice is wholly inapplicable to original defects in the way. § 968. Fourthly. In what Condition the Way must be put and kept : — Differences. — It is impossible that this subject should admit of exact definings of particular things which may, may not, and must, be within the limits set apart for a public way. The statutes differ in their terms. The situations differ. And the unwritten law, which common usage* and public sentiment create, as to the degree of excellence essential, is the most diverse element of all ; thougli, in the interest of uniformity in our books, this branch of the law is practically and chiefly presided over by the jury.* The result is that, even as the subject appears in our judicial reports, there are some differences among our States. Yet, in general terms, — : § 969. Doctrine defined. — So much of the right of way — a strip narrower or wider or the whole — as the particular travel requires,^ must be wrought into,- and otherwise made and kept 1 Cook V. Anamosa, 66 Iowa, 427 ; Mass. 450 ; Manchester v. Ericsson, 105 Donaldson v. Boston, 16 Gray, 508, 611. U. S. 347 ; Merrill v. Hampden, 26 And see Billings v. Worcester, 102 Mass. Maine, 234 ; Washburn v. Woodstock, 329 ; Ryerson v. Abington, 102 Mass. 49 Vt. 503 ; Drew v. Sutton, 55 Vt. 526 ; Monies v. Lynn, 119 Mass. 273. 586 ; Beeeher v. People, 38 Mich. 289. 2 Carrington v. St. Louis, 89 Mo. 208. » Monongahela City v. Fischer, 1 3 Brooks n. Somerville, 106 Mass. Am. Pa. 9 ; Keyes v. Marcellus, 50 271 ; Johnson v. Salem Turnpike, 109 Mich. 439 ; Tritz v. Kansas, 84 Mo. Mass. 522. 632 ; Seeley v. Litchfield, 49 Conn. « See Seeley v. Litchfield, 49 Conn. 134 ; Moore v. Roberts, 64 Wis. 538 ; 134. Crystal v. Des Moines, 65 Iowa, 602 ; * For exalnple, Sullivan v. Oshkosh, Dickey v. Maine Telegraph, 46 Maine, 55 Wis. 508 ; Loan v. Boston, 106 483. 453 § 972 PARTICULAR PLACES AND THINGS. [BOOK V. in, a reasoaablj safe condition for such travel; any negli- gence^ in which duty will create responsibility to persons injured thereby.^ Some of the particulars are, — § 970. Safety. — In civil jurisprudence, where one to main- tain an action must have suffered a special damage in distinc- tion from an inconvenience common to the entire community,^ the leading rule is that the way must be made safe.* This rule does not compel the corporation to violate the laws by removing things over which it has no control ; * but, within this limit, it creates responsibility for anything dangerous, if harm from it follows. Thus, — § 971. Overhanging. — A dweller upon a highway, who maintains a dilapidated house or other thing liable to fall on it, commits an indictable and abatable^ nuisance.^ If then the municipality, instead of removing a nuisance like this, — for example, a dangerous wall left by a fire,' or an insecurely fastened show-board near the street,® or an unsafe awning over the sidewalk,^'' — suffers the danger to stand, and dam- age follows, it must recompense the person injured. A statute requiring the town to keep its ways in " good repair " seems to have been interpreted as exempting it in cases of this sort." This doctrine is but a part of a wider one ; namely, — § 972. Outside of 'Way. — Whenever there is danger to travel from anything beside or proximate to a highway, though not within its limits, the party responsible for its condition must remove the danger, or give warning, or erect proper guards.^ One method is by a — 1 Ante, § 963. v. Fond du Lac, 31 Wis. 179 ; Talbot 2 Rome II. Dodd, 58 Ga. 238 ; Cen- v. Taunton, 140 Mass. 552 j McArthur tervUle v. Woods, 57 Ind. 192 ; Moch- r. Saginaw, 58 Mich. 357. ler V. Shaftsbury, 46 Vt. 580 ; Albee * Flanders v. Norwood, 141 Mass. 17. V. Floyd, 46 Iowa, 177 ; Congdon v. « Ante, § 429-432. Norwieh, 87 Conn. 414 ; Atlanta ii. '2 Bishop Crim. Law, § 1275. Champe, 66 Ga. 659 ; Boulder v. Niles, ' Grogan v. Broadway Foundry, 87 9 Colo. 415 ; Beq^na v. Eochester, 45 Mo. 321. But compare with Kiley v. N. Y. 129. Kansas, 87 Mo. 103. ' Ante, § 950 ; Benjamin ». Storr, ' Langan v. Atchison, 35 Kan. 318. Law Rep. 9 C. P. 400. i« Bohen v. Waseca, 82 Minn. 176. * Duffy i>. Dubuque, 63 Iowa, 171 ; " Taylor v. Peckham, 8 R. I. 349. Estelle D.Lake Crystal, 27 Minn. 243; w Temperance Hall Assoc, v. Giles, Madison D. Brown, 89 Ind. 48; Kelley 4 Vroom, 260;.BnuGh v. Edenton, 90 454 CHAP. XLI.] PUBLIC WAYS. § 975 § 973. Railing. — In the absence of any statutory command, railings are required along public streets and bridges where, and only where, a prudent precaution dictates. There can be and is no rule truly more exact, though the cases contain some minuter speculations.^ § 974. Lights, — unless required by a statute or by-law, need not be maintained in the streets either of city or country. Ho that one who meets with an accident due to the darkness can claim nothing of the municipality .^ Even an ordinance, directing the superintendent of streets to light them, has been interpreted as an affair of internal arrangement, giving third persons no right of action for injuries from its non-observance.^ Still, as precautions* against spfecial damages, lights have their legal as well as practical uses. Thus, if a pile of rub- bish is left at night in the street, the city may or not be liable to one injured by it, according as a light is attached to it or not.s § 975. Travelled Part of Way. — The part of the way worked for travel, whether wider than necessary or not,* or in any manner so left as to appear safe,^ must be put into a condition reasonably safe in fact, for use at all times both by night and by day.* A hitching-post,® stepping-stone,^" a post N. C. 431 ; Potter v. Castleton, 53 Vt. » Lyon v. Cambridge, 136 Mass. 419. 435 ; Cartright v. Belmont, 58 Wis. * Cartright v. Belmont, 58 Wis. 370 ; Drew v. Sutton, 55 Vt. 586 ; 370. Wheeler v. Westport, 30 Wis. 392. S King v. Cleveland, 28 Fed. Rep. 1 Branson i^. Southbury, 37 Conn. 835 ; Monies v. Lynn, 119 Mass. 273. 199 ; Barnes ». Chioopee, 138 Mass. 67 ; " Matthews ji. Baraboo, 39 Wis. 674. Haskell v. New Gloucester, 70 Maine, ' Saltmarsh v. Bow, 56 N. H. 428 ; 305 ; Beardsley v. Hartford, 50 Conn. Stark v. Lancaster, 57 N. H. 88 ; Taiib- 629 ; Daily v. Worcester, 131 Mass. man v. Lexington, 25 Mo. Ap. 218 ; 452 ; Hart v. Hudson River Bridge, 84 Aston v. Newton, 134 Mass. 507 j Hall N. Y. 56 J Willey v. Ellsworth, 64 v. Unity, 57 Maine, 529. Maine, 57 ; Gillespie v. Newburgh, 54 8 Ante, § 968 ; Halpin v. Kansas, N. Y. 468 ; Ward v. New Haven, 43 76 Mo. 335 ; Watson b. Kingston, 43 Conn. 148; Bunch ». Edenton, 90 N. C. Hun, 367 ; Etheridge v. Philadelphia, 431 ; Kelley v. Columbus, 41 Ohio State, 26 Fed. Rep. 43 ; Marshall v. Ipswich, 263 ; Veeder v. Little Falls, 100 N. Y. 110 Mass. 622. 343. * Macomber v. Taunton, 100 Mass. 2 Gaskins v. Atlanta, 73 Ga. 746 ; 256. Randall v. Eastern Rid. 106 Mass. 276 ; w Dubois v. Kingston, 102 N, Y Monongahela City v, Fischer, 1 Am. 219. Pa. 9. 455 § 976 PARTICULAR PLACES AND THINGS. [BOOK V. to protect a shade-tree,^ a gutter ,2 when severally proper in construction and location, being quasi necessaries, — though each of them is a sort of obstruction, the permitting of no one of them will create liability in the municipality. Nor will the omission of precautions against an extraordinary storm, not within the anticipations of ordinary prudence, have this effect.^ So likewise the way need be made safe only for the sort of travel reasonably to be anticipated ; * as, in a country town- ship, a bridge is not required to be of strength to support a steam threshing-machine of great weight, drawn by a traction engine.^ § 976. Trightening Horses. — The most common of all the uses of a highway is to drive over it with horses attached to vehicles. As no one is entitled to take upon it a load of ex- traordinary weight and ask protection from the municipality, so no one can claim protection from the vice of an ill-broken or easily frightened horse. But an object on a highway calcu- lated to frighten" a horse of ordinary gentleness is a nuisance, and he who is damnified by such a horse taking fright at it may have his remedy against the municipality.* It is but a truism to say that a way thus practically dangerous is not safe for this the commonest sort of travel.^ Yet we have some cases adverse.^ 1 ■Wellington v. Gregson, SI Kan. Judicial Seasoning distinguished 99 ; 2 Bishop Crim. Law, ^ 1277. from the Beasonlngs of the Law. — ^ Baker v. Madison, 56 Wis. 374. The need of jurists, to develop the ' Allen V. Chippewa Falls, 52 Wis. reasonings of the law in distinction 430. from the incorrect or imperfect reason- * Ante, § 969 ; 2 Bishop Crim. Law, iugs not unfrequently delivered from § 1276. the bench (ante, § 839 and note, 843 5 MeCormiok ii. Washington, 2 Am. and note, 908) may be illustrated by Pa. 185. the following. In Kingsbury v. Ded- s Clinton v. Howard, 42 Conn. 294 ; ham, 13 Allen, 186, 189, the question Macauley v. New York, 67 N. Y. 602 ; being whether or not a town was re- Nichols V. Athens, 66 Maine, 402. And sponsible for the consequences of fright- see Acker v. Anderson, 20 S. C. 495 ; ening a horse by a pile of gravel in the Edgerly v. Concord, 59 N. H. 341. middle of a highway, the court reasoned ' Ante, §529, 970. thus: "Upon careful consideration, it ' Fulton V. Eickel, 106 Ind. 501 ; seems to us that it would be giving Bemis v. Arlington, 114 Mass. 607. See an unwarrantable interpretation to the Stone w. Hubbardston, 100 Mass. 49. statutes which impose on towns the duty The present is a good opportunity for of keeping the highways within their introducing a specimen of — respective limits in safe and convenient 456 CHAP. XLI.] PUBLIC WATS. §977 § 977. Sidewalks, — for foot-travel, constitute parts of the ways.^ And the municipality is under the same liabilities to persons injured through defects in them as in the other parts.'' condition, and render them responsible for injuries arising from defects or want of reasonable repairs, to hold that the existence of an object within the limits of a way, or the state of the surface of the road, which may cause horses to take fright, constitutes a culpable neg- lect. It would be quite impracticable for a city or town, however diligent and careful it might be, to conform to such a standard of duty. A small piece of white paper lying on the surface of a way in a bright sunlight, a discolora- tion of a patch of the road by moisture or other cause rendering it darker than other portions, a little tuft of hay or seaweed lying by the side of the trav- elled path, these and other similar ob- jects which the highest diligence could not prevent or seasonably remove would expose towns to liability to actions for damages." Now, though this is not a very high specimen of judicial reason- ing, it is such as we often meet with in the reports. Its contrast to anything which may be deemed the reasoning of the law is exceedingly sharp and steep. The law's reasonings may be compared to the timbers in a building ; each one is fitted into the others, and together they constitute a self-supporting struc- ture. But what is thus extracted from the report fits into nothing and nothing fits into it. Therefore, though it is wrought lumber, it is no part of the structure. Thus, one of the timbers in our legal edifice is, that the law does not concern itself about trifles. Ante, § 35, 36. But the "small piece of white paper lying on the surface of a way" and the ".little tuft of hay" are things too triflng to fit into this or any other timber in our legal structure. The doctrine of negligence may he deemed one of the beams in our legal edifice. And by that doctrine the negligence must, to charge the party, have ac- quired a standard degree. Ante, § 438- 441. Since, therefore, timber must fit timber, the law's question would be, not whether the defendant should be held responsible for a want of care so minute as to become a practical impos- sibility, but whether the negligence in the case in hand had attained the law's standard. In other words, since the way was for travel by horse, and con- structed by persons who ought to know the nature of the animal, the question was, not whether those who made and kept it were minutely negligent, but whether their negligence was such in kind and degree as to render it, by the fright it was adapted to produce, an unsafe way for horse and driver. And this question is not, in the opinion from which I have quoted, even attempted to be grappled with. So that its rea- soning has no relation whatever to the reasoning of the law. Yet a very con- siderable proportion, though not all, and I shall not attempt to estimate how large a proportion, of the opinions in our reports are of this sort. And here we have a hint, not an unfolding, of the benefits which will result to our law from jurist writings, if the profession show such a purpose to encourage them as to bring jurists of the common law into existence. 1 Taber v. Grafmiller, 109 Ind. 206. 2 Bloomington o. Bay, 42 111. 503 Durant v. Palmer, 5 Dutcher, 544 Thomas v. Brooklyn, 58 Iowa, 438 Cramer v. Burlington, 45 Iowa, 627 Fumell V. St. Paul, 20 Minn. 117 Glantz V. South Bend, 106 Ind. 305 Schroth V. Prescott, 63 Wis. 652 ; Mc' Mahon v. New York, 33 N. Y. 642 Davenport v. Euckman, 10 Bosw. 20 Wallace u. New York, 2 Hilton, 440, Otherwise in Michigan, O'Neil v. D& troit, 50 Mich. 133. See Williams ». Grand Bapids, 59 Mich. 51. 457 § 980 PAETICULAE PLACES AND THINGS. [BOOK T. An insecure awning,^ or an unfenced excavation in an ad- joining lot/ may cast on the municipality liability for inju- ries following; so, not ordinarily, but in cases of special danger, openings from the sidewalk into adjacent basements, and the like, will have the same effect.^ As to, — § 978. Ice on Sidewalk. — In the winter, in our colder cities, it would be practically impossible for the governing power to keep all the sidewalks constantly free from the slippery con- ditions produced by ice and snow. And, whatever a city might profess, every prudent pedestrian would take his own precautions with him, thankful for any lack of occasion to use them. Therefore, as the general rule, cities and villages are not answerable to persons injured through this sort of defect,* unless something else is added thereto.® But when the accumulations have assumed dangerous shapes, and in various, other circumstances where the municipality is evi- dently in fault, it will be held responsible.^ § 979. Fifthly. Permitting Steam and other Oars in the Statutory Complications. — Any very helpful elucidation of this subject would involve wide unfoldings of differing multi- tudinous statutes, — quite impossible within our narrow space. In brief, — § 980. Tramways, — of whatever construction, if laid in a street, are in some degree an obstruction to its ordinary use ; so that, however beneficial on the whole, they are not lawful without legislative sanction. There are some differences of opinion, but by what we may assume to be the just doctrine, 1 Hrnne v. New York, 47 N. Y. 689. Cook v. Milwaukee, 27 Wis. 191 ; Cook 2 Bunch V. Edenton, 90 N. C. 431. v. Milwaukee, 24 Wis. 270. See Hubbell v. Yonkers, 104 N. Y. 6 Maucli Chunk v. Kline, 4 Out. Pa. 434 ; Doyle v. Vinalhaven, 66 Maine, 119 ; Kiuney ■». Troy, 108 N. Y. 567. 848 ; Wenzlick «. McCotter, 87 N. Y. 6 Broburg v. Des Moines, 63 Iowa, 122. 523, 526 ; Dooley v. Meriden, 44 Conn. « Fitzgerald v. Berlin, 64 Wis. 203 ; 117 ; Laudolt v. Norwich, 37 Conn. Day V. Mt. Pleasant, 70 Iowa, 193. 615 ; Hill v. Fond du Lac, 56 Wis. * Smyth «. Bangor, 72 Maine, 249 ; 242 ; Pomfrey v. Saratoga Springs, 104 Aurora w. Parks, 21 111. Ap. 459 ; Chase N. Y. 459 ; Stafford v. Oskaloosa, 64 V. Cleveland, 44 Ohio State, 505 ; Gros- Iowa, 251 ; Griffin v. Sanbornton, 44 senbach v. Milwaukee, 65 Wis. 31 ; N. H. 246. 458 ' • CHAP. XLI.] PUBLIC WATS. § 983 not even the corporation which has the care of the public ways can grant a valid permission to lay them, it must come from the legislature.^ At the same time, in the case of an ordinary surface road, the tracks whereof do not exclude the common vehicles or the pedestrians, the new use is not a new servitude entitling the abutters to a fresh compensation.^ § 981. Elevated Railroads — over the streets are a new use, permissible only on legislative authority and compensation to the abutters.^ § 982. Steam Railroads, — of the ordinary sort, sometimes allowed in the streets, are likewise a new use, grantable only by the legislature, with compensation to the abutters.* Now, — § 983. Consequences. — From these doctrines, from the di- verse statutes, and from the combinings therewith of the ordinary rules of the common law, various consequences pro- ceed. Ordinarily or generally, the municipality assigns to the railroad its location ; ^ but this does not render it liable to damages from its construction or use,^ or from the rail- road's wrongs.'' Nor does it relieve the municipality of re- sponsibility for what remains within its jurisdiction.^ On the 1 Reg. V. Train,. 2 B. & S. 640; burn, &c. Rid. 3 Hill, N. Y. 567 ; Falker Perry v. New Orleans, &c. Eld. 55 Ala. v. New York, &c. Ry. 17 Abb. N. Gas. 413 ; Davis v. New York, 4 Kernan, 279 ; Guess v. Stone Mountain Gr. &c. 506 ; MUhau v. Sharp, 27 N. Y. 611 ; Ky. 72 Ga. 320 ; Gulf, &c. Ry. v. Ful- Coleman ». Second Ave. Rid. 38 N. Y. ler, 63 Texas, 467 ; Spencer v. Point 201. See Brown v. Duplessis, 14 La. Pleasant, &c. Rid. 23 W. Va. 406 ; An. 842. Carson v. Central Eld. 35 Cal. 325 ; 2 Elliott V. Fair Haven, &c. Eld. Wolfe v. Covington, &c. Eld. 15 B. 32 Conn. 579 ; Hinchman v. Paterson Monr. 404 ; Seneca Koad i). Auburn, &c. Horse Eld. 2 C. E. Green, 75 ; Brook- Eld. 5 Hill, N. Y. 170 ; Davis v. Chi- lyn, &c. Eld. v. Coney Island, &c. Eld. cago, &c. Ey. 46 Iowa, 389. 35 Barb. 364 ; Porter v. North Mis- s Merchants Union Barb Wire Co. v. souri Eld. 33 Mo. 128. Chicago, &c. Ey. 70 Iowa, 105. ' Story V. New York Elev. Eld. 90 * Dillenbaoho. Xenia, 41 Ohio State, N. y. 122 ; Lahr v. Metropolitan Elev. 207 ; Olney v. Wharf, 115 111. 519 ; Ry. 104 N. Y. 268 ; Drucker v. Man- Frith v. Dubuque, 45 Iowa, 406. hattan Ey. 106 N. Y. 157 ; Peyser v. ' Callahan v. Des Moines, 63 Iowa, Metropolitan Elev. Ey. 13 Daly, 122, 705. 12 Daly, 70. • ' Steuben ville v. McGill, 41 Ohio * Imlay v. Union Branch Eld. 26 State, 235 ; Aston v. McClure, 6 Out. Conn. 249 ; Starr v. Camden, &c. Eld. 4 Pa. 322. Zab. 592 ; Presbyterian Society v. Au- 459 PARTICULAR PLACBB AND THINGS. [BOOK V. other hand, the railroad becomes answerable for its needless obstructions of the streets, resulting in damage.^ And its use of the streets thus jointly with the common use by private persons casts upon it a high responsibility, demanding special care ; ^ for the lack whereof, bringing injury to an individual, it must compensate him.^ §. 984. Sixthly. Licensing other Obstructions : — Generally TTnlawfal — (Nuisance). — An obstruction in a highway is, in law language, a public nuisance.* As such, it is an indictable wrong.^ And the general rule is, that the municipal corporation cannot by any license render it lawful, or relieve the doer or itself from civil responsibility therefor.* Thus, — § 985. Licensed Nuisance. — A town licensed a tripod and fire for candy-making on a street, — calculated, as a jury after- ward found, to frighten horses of ordinary gentleness. One's horse took fright thereat, doing damage, and the town was compelled to compensate him.^ Now, — § 986. Temporary Necessity. — More or less temporary ob- structions of the streets are unavoidable. If they are reduced to the minimum of the particular necessity, and if in proper cases they receive the municipal license, no action is main- tainable for any injury from them. The illustrations are such as come from the repair of the streets,^ the erection and repair of buildings beside them,^ the making of sewers and cellar drains,^** the laying of pipes for the domestic supply of water," 1 Bussian v. Milwaukee, &c. Ey. 56 v. Capron, 63 N. H. 605 ; Mikesell o. Wis. 825 ; St. Louis, &c. Eld. v. Capps, Durkee, 34 Kan. 509 ; Springfield v. 72 111. 188. Scheevers, 21 111. Ap. 203. 2 Toledo, &c. Ey. u Harmon, 47 111. ' Rashville v. Adams, 107 Ind. 298 ; Illinois Cent. Eld. v. Hutchinson, 475. 47 111. 408. 8 Ante, § 120 ; Tift v. Jones, 52 Ga. ' Robinson v. Western Pao. Eld. 48 538 ; Hamilton v. Vicksburg, &c. Eld. Cal. 409. 119 U. S. 280 ; Miller v. New York, * Eeg. V. Longton Gas Co. 2 Ellis & 109 U. S. 385 ; Westliche Post Assoc. E. 651; Morton ■». Moore, 15 Gray, 573, v. Allen, 26 Mo. Ap. 181. 576 ; Columbus v. Jaques, 30 Ga. 506 ; 9 Nolan ». King, 97 N. Y. 565 ; Gerrish v. Brown, 51 Maine, 256. See, Clark v. Fry, 8 Ohio State, 358. for the doctrine of private nuisance, i" Clark v. Fry, supra, ante, § 409-432. u Smith v. Simmons, 7 Out. Pa. 32 ; 6 2 Bishop Crim. Law, § 1272. Susquehanna Depot v. Simmons, 2 Am. « Ante, § 748, 754, 980 ; Winchester Pa. 384. 460 CHAP. XLI.j PUBLIC WAYS. the lading and unlading of goods,^ and many others. Yet each obstruction should be attended by the precautions which its special facts suggest ; in the absence whereof, the corpora- tion, the individual, or both will be answerable for the evil consequences.^ Again, — § 987. Special Occasions — call for their special uses of the streets, and require and permit the municipality to make ap- propriate arrangements for them. So that, where municipal authorities caused a rope to be stretched across a street for the protection of the fire department in a public parade, a per- son injured by contact with it was adjudged not entitled to damages.^ § 988. statutory Authority — for an obstruction will, within a principle explained in an early chapter,* relieve those per- mitting it from liability.^ And still the parties acting therein will be answerable for any negligence, or the infliction of needless harm.® III. The Owners and Dwellers along Public Ways. § 989. Extent of Ownership. — The public, that uses the ways, is not, in its collective capacity, a tiller of the soil, a worker of mines, or a gatherer of harvests. Its need of land is limited to the easement for the particular purpose ; so com- monly it appropriates no more. And the presumption of the law is, that the abutters on a public way own the fee to the centre, while the public is the proprietor simply of the ease- ment.'^ And in the absence of restraining words,^ a deed of 1 Merritt v. Fitzgibbons, 102 N. Y. « Ante, § 111. 362 ; Welsh v. Wilson, 101 N. Y. 254 ; ^ Moore •/. Lambeth Waterworks, Callanan v. Oilman, 107 N. Y. 360. 17 Q. B. D. 462. And see Irwin v. 2 Nolan V. King, supra ; Estelle v. Great So. Telephone Co. 37 La. An. 63.' Lake Ciystal, 27 Minn. 243 ; Grant o. « Ante, § 115 ; Nichols v. Minneap- Stillwater, 35 Minn. 242 ; Beardsley v. olis, 33 Minn. 430. And see Memphis Swann, 4 McLean, 333 ; Stuart v. Ha- Bell Telephone Co. v. Hunt, 1 6 Lea, vens, 17 Keb. 211 ; Jochem ». Eobin- 456 ; Portland, &c. Eld. v. Deering, 78 son, 66 Wis. 638 ; Appleton v. Nan- Maine, 61 ; Keefe o. Sullivan County tucket, 121 Mass. 161 ; Martinsville v. Eld. 63 N. H. 271. Shirley, 84 Ind. 546. ' Taylor v. Armstrong, 24 Ark. 102; * Simon v. Atlanta, 67 Ga. 618. Eice v. Worcester, 11 Gray, 283, note ; ' Gaylord v. King, 142 Mass. 495 ; Champlin v. Pendleton, 13 Conn. 23. 461 §990 PAETICDLAB PLACES AND THINGS. [book V. land on a street ^ or river ^ carries the fee to the centre. So a dedication or a prescription for a highway gives to the puhlic the easement only, not the fee.^ It is the same also where land for a way is taken by the right of eminent domain.* Of course, in most and perhaps all of these cases, this conclusion may be reversed by express words or intendment in the deed or act of transfer, so that the fee will not be in the adjoining owner.^ Then such owner will take an easement in the land over which is the way, for his special use in connection with the use by the public.® So that, in either event, he will have therein rights superior to those of the public at large.' Con- sequently, — § 990. Abutter's Rights. — An abutter, assuming him to own the fee, may get out of or take from the land whatever he can, so long as he does no injury to the way.* He is entitled to the grass and all else that grows on it.® The min- erals under it are his, and he may work the mines, yet not to interfere with the public use.^" Any private person who takes away earth from a highway ,^^ or for his individual benefit Van Amringe v. Bamett, 8 Bosw. 357 ; Cooke V. Green, 11 Price, 736 ; Holmes V. Bellingham, 7 C. B. N. s. 329, 6 Jur. N. s. 534 ; West Covington v. Freking, 8 Bush, 121 ; WlUoughby v. Jenks, 20 Wend. 96 ; Cortelyou v. Van Brandt, 2 Johns. 357, 363. 1 Berridge v. Ward, 10 0. B. N. s. 400, 7 Jur. N. s. 876 ; Keg. ». Board of Works, 4 B. & S. 526, 547, 548 ; Wit- ter V. Harvey, 1 McCord, 67 ; HoUen- beck V. Rowley, 8 Allen, 473. 2 Day V. Pittsburg, &c. Eld. 44 Ohio State, 406 ; Shirley v. Bishop, 67 Cal. 543. ' Lade v. Shepherd, 2 Stra. 1004 ; Gidney v. Earl, 12 Wend. 98. * Charleston Eice Mil. Co. v. Ben- nett, 18 S. C. 254 ; Holden ■*. Shat- tuck, 34 Vt. 336 ; Baker v. Shephard, 4 Fost. N. H. 208 ; Harris v. Elliott, 10 Pet. 25 ; Cole v. Drew, 44 Vt. 49 ; Pittsburgh, &c. Eld. v. Bruce, 6 Out. Pa. 23. 6 Smith V. Slocomb, 11 Gray, 280 ; 462 Yates V. Hathaway, 15 Johns. 447 ; Boston v>. Richardson, 13 Allen, 146; Grose v. West, 7 Taunt. 39 ; Hughes v. Providence, &e. Eld. 2 R. L 493 ; Mott V. Mott, 68 N. Y. 246 ; Banks v. Og- den, 2 Wal. 57 ; Des Moines v. Hall, 24 Iowa, 234 ; Harlow v. Rogers, 12 Cush. 291. 6 Story V. New York Elev. Rid. 90 N. Y. 122 ; Lahr v. Metropolitan Elev. Ry. 104 N. Y.. 268 ; Drucker v. Man- hattan Ey. 106 N. Y. 157. ' lb. ; Brakken v. Minneapolis, &c. Ey. 29 Minn. 41. 8 O'Linda v. Lothrop, 21 Pick. 292, 297; Reg. v. Mathias, 2 Fost. & F. 570; Stackpole v. Healy, 16 Mass. 33. ^ Woodruff V. Neal, 28 Conn. 165 ; Cole V. Drew, 44 Vt. 49 ; Adams v. Emerson, 6 Pick. 57 ; Lyman v. Ar- nold, 5 Mason, 195. 1" West Covington v. Freking, 8 Bush, 121. " Gidney v. Earl, 12 Wend. 98. CHAP. XLI.] PUBLIC WATS. § 991 occupies any part of it,^ or ploughs it,^ or removes from it trees or herbage not amounting to a nuisance,' or places any- thing upon it,* or erects any structure overhanging it,^ com- mits a trespass on the owner of tiie servient land, for which he is liable in the same manner as though it was unincum- bered by the way.^ But the municipality making or repairing it may use in such construction or repair the earth, stones, and gravel taken from any part, from the surface down to grade, upon the same or any other ^ part, without regard to the ownership of the fee at the several places.^ Yet to obtain materials for such jise it must not dig below grade, even though it fills the spaces with other soil.® And whatever is not thus rightfully appropriated to the way itself belongs, as well against the municipality as a private person, to the owner of the fee.^" An apt illustration is afforded by standing trees : the municipality may have their use for the shade and orna- ment" of the way ; ^^ but they belong to the owner of the fee, and, when rejected by those having the care of the street, he is entitled to remove and take them to his own use.^^ § 991. Abutters not Owning Pee. — The precise nature and extent of the special easement rights of an abutter who does not own the fee of the way,!' cannot be fully stated on author- ity ; the case not being common, and the question not having 1 Chester ■». Alker, 1 Bur. 133. ^o Kruegerw. Palatine, 20 Bradw. 420; 2 Eobbins v. Borman, 1 Pick. 122. Higginsu. Reynolds, 31 N. Y. 151, 156; ' Phifer v. Cox, 21 Ohio State, 248. Leonard v. Cincinnati, 26 Ohio State, * Lewis V. Jones, 1 Barr, 336. 447. ' Ante, § 417 ; Codman v. Evans, 5 ^^ Yet even this is denied, except Allen, 308. See Jenks v. Williams, 115 where they are purchased, or taken by Mass. 217. the right of eminent domain. Lancas- 8 Munson v. Mallory, 36 Conn. 165 ; ter v. Bichardson, 4 Lans. 136. Still it Hollenbeck v. Rowley, 8 Allen, 473. seems to me that the right of way in- ' But see Macon ». Hill, 58 Ga. 595. eludes the right to make it pleasant by ' Ante, § 874 ; Denniston v. Clark, shade, as well as smooth to the foot of 125 Mass. 216 ; Upham v. Marsh, 128 the traveller. And I think that, in Mass. 546. Timber. — I should say, most of our States, this is the practical in the absence of specific rulings, that fact of the law, however it may have the maker or repairer might use also originated. And see Everett v. Council the timber, — as, for example, in cor- Blnffs, 46 Iowa, 66. duroying or bridging, — but Baker v. '^ Wellman v. Dickey, 78 Maine, 29 ; Shephard, 4 Fost. N. H. 208, appears to Clark v. Dasso, 34 Mich. 86. But see be opposed. Castleberry v. Atlanta, 74 6a. 164. Bobert v. Sadler, 104 N. Y. 229. w Ante, § 989. 463 § 993 PARTICULAR PLACES AND THINGS. [BOOK V. often arisen. Plainly he is not entitled to forbid the removal, by public command, of a tree in the street, though set out by ' himself .1 Nor has he any other interest in the soil, viewed simply as a producer of what has value. But he may forbid perversions of the uses of the way, its unreasonable obstruc- tion, the shutting of it up, the cutting off of his light, and other like nuisances.^ And, in just reason, these special ease- ments of his should be construed to be precisely the same with those of the dwellers who own the fee to the centre ; the difference being that they, and not he, may enjoy also what the land produces or sustains. Thus, if the owner of the fee may ever use the untravelled part of a public way for the storage of lumber and carriages ^ or the maintaining of hay- scales, certainly the abutter with simply the easement cannot.* Leaving now this sort of distinction, — § 992. Access — to the street from one's premises and from the street to them, sometimes termed ingress and egress, is a right, or easement, in all who dwell thereon. The munici- pality is not required to construct a path for this purpose, but to permit it to be made and kept open by the owner. To ob- struct him herein to his detriment is actionable.^ The wrong assumes various forms ; thus, — § 993. Instances. — The street in front of one's premises cannot, without his consent, be made a stand for hacks.^ Any needless or persistent obstruction to the passing of cus- tomers to and from the shop of a trader ; "> a puppet-show in 1 Gaylord v. King, 142 Mass. 495. Brakken v. Minneapolis, &o. Ey. 29 2 Story V. New York Elev. Rid. 90 Minn. 41 ; Mahady v. Bushwiok Eld. N. Y, 122, and other cases cited ante, 91 N. Y. 148 ; Bumhani u. Boston, 10 § 989 ; Peyser v. Metropolitan Elev. Allen, 290 ; Park v. Chicago, &o. Ey. Ey. 13 Daly, 122 ; Kings County Fire 43 Iowa, 636 ; Lahr v. Metropolitan Ins. Co. I). Stevens, 101 N. Y. 411 ; Elev. Ry. 104 N. Y. 268 ; Textor v. Mahady v. Bushwick Rid. 91 N. Y. Baltimore, &c. Eld. 59 Md. 63; Frankle 148. V. Jackson, 30 Fed. Eep. 898 ; Smith * Judd V. Fargo, 107 Mass. 264 ; v. Leavenworth, 15 Kan. 81 ; Orme «. Chamherlain v. Enfield, 48 N. H. 356 ; Eichmond, 79 Va. 86. Piollet v.- Simmers, 10 Out. Pa. 95 ; « McCaffrey v. Smith, 41 Hun, 117 ; Palmer v. Sllverthorn, 8 Casey, Pa. 65 ; Slater v. Swann, 2 Stra. 872. Gerring v. Barfield, 16 C. B. N. s. 597. ' Wilkes v. Hungerford Market, 2 * Emerson v. Bahcock, 66 Iowa, 257. Bing. N. C. 281 ; Williams v. Tripp, ° Goodin v. Des Moines, 65 Iowa, 67; 11 R. I. 447. 464 CHAP. XLI.] PUBLIC WAYS. § 994 a window opposite, drawing crowds that block the approaches to the shop ; ^ a railroad track, laid in front of one's prem- ises,2 or telephone poles there erected,^ without due authoriza- tion ; suffering street or other cars to remain an unreasonable time before a dwelling-house ; * casting snow in heaps, and leaving it too long, in front of one's premises ; ^ permitting the street to be used as a market-place ; ® — each of these is a private nuisance, actionable or abatable by injunction, or both, according to the circumstances. Some of them are not only obstructions to the right of ingress and egi'ess, but are wrongs on other grounds likewise. § 994. Excavations. — The responsibilities of the fee-owner for excavations outside of street-lines, whereby another is injured, depend chiefly on principles stated in a preceding chapter.^ So long as he does not impair the due lateral sup- port,^ he may dig up his unincumbered soil to any extent he pleases, taking proper precautions.' And he owes no duty of precaution to a voluntary trespasser, who, therefore, is not entitled to damages for any injury therefrom.^" But to an in- voluntary trespasser, harmed by an unguarded excavation so near the street that one might fall into it while passing along with ordinary circumspection, he is answerable ; " for he owed to him the duty to seek his own interests with a careful Regard for the welfare of others.^ And it is the same where the 1 Jaques v. National Exhibit Co. 15 "> Ante, § 845-854. Abb. jr. Cas. 250. See Gallagher v. « Ante, §905-913; Milbum ». Fow- Dodge, 48 Conn. 387 ; People v. New ler, 27 Hun, 568. York, 18 Abb. N. Gas. 123 ; Elias v. » Buesching v. St. Louis Gas-light Sutherland, 18 Abb. N. Cas. 126. Co. 73 Mo. 219 ; Rowland ». Vincent, 2 Blesch V. Chicago, &c. Ry. 43 Wis. 10 Met. 371. 183 ; Bell v. Edwards, 37 La. An. 475. i" Hardcastle v. South Yorkshire, &c. 8 Broome v. Hew York, &c. Tele- Co. 4 H. & N. 67, 5 Jur. N. s. 150 ; phone Co. 15 Stew. Ch. 141. Hounsell v. Smyth, 7 C. B. N. s. 731, * Angel V. Pennsylvania Eld. 11 6 Jur. N. 8. 897 ; Binks v. South York- Stew. Ch. 58 ; Pennsylvania Eld. v. shire, &c. Co. 3 B. & S. 244. Angel, 14 Stew. Ch. 316. And see " lb. ; Beck©. Carter, 68 N. Y. 283; Hopkins ». Western Pac. Eld. 50 Cal. 190. Hadley v. Taylor, Law Rep. 1 C. P. 53; 5 Prime v. Twenty-third Street Rid. Barnes ». Ward, 9 C. B. 392, 14 Jur. 1 Abb. N. Cas. 63. 334 ; Wettor v. Dunk, 4 Post. & P. 6 McDonalds. Newark, 15 Stew. Ch. 298 ; Hayes «. Michigan Cent. Eld, 111 136 ; Lutterloh v. Cedar Keys, 15 Pla. U. S. 228, 235, 236. 306. >2 Ante, § 104, 115. 30 465 § 997 PARTICULAR PLACES AND THINGS. [BOOK V. owner has held out inducements or enticements, or given the public or individuals a permission, to go to the excavated place ;^ or, where cattle, that are injured, are lawfully ^ at large ;^ in which cases the excavation must be fenced or guarded.* Of course, — • § 995. ■Within street. — For the fee-owner's unlawful excava- tions within'the street, followed by injury, he is responsible like any other person. An insufficiently secured coal-hole in the sidewalk is an example.^ And where one. who was digging a coal-cellar under the sidewalk left the work so insuflSciently protected that a rain flooded, through it, a neighbor's cellar, damaging goods therein, he was compelled to compensate their owner .^ So — § 996. other Trespass. — The abutter is in like manner an- swerable for any other form of trespass on the right of way.'' Thus, if he so constructs his roof that it casts ice and snow on a passer-by,* or in violation of a by-law suspends a sign and it falls on a person in the street,^ or keeps his building on the way in a condition so unsafe that it does damage,^** or so carelessly unloads " or piles ^ things on the sidewalk that a pedestrian is injured, he must make compensation for the loss or suffering inflicted. § 99.7. Grade of Street. — As the ways are for the public, it is impossible the lot-owners should decide, each for himself, what the grade in front of their respective estates shall be ; for it would result in ascents and descents so steep as to ren- 1 Ante, § 848, 849, 853, 854 ; Beck Assoc. 89 N. Y. 498, 503, 505 ; 'SeS v. V. Carter, supra ; Graves v. Thomas, 95 Paddock, 26 Wis. 546. Ind. 361 ; Crogan v. SoMele, 53 Conn. * Shipley v. Fifty Associates, 106 186. Mass. 194 ; Garland v. Towne, 55 If. H. 2 Ante, § 845. 55 ; Walsh v. Mead, 8 Hun, 387. See » Haughey v. Hart, 62 Iowa, 96 ; Moore v. Gadsden, 87 N. Y. 84, 87, 88. Jones V. Nichols, 46 Ark. 207. • Salisbury v. Herchenroder, 106 * Buesching v. St. Louis Gas-light Mass. 458. Co. 73 Mo. 219. " Mullen v. St. John, 57 N. Y. 567 ; 6 Jennings v. Van Sohaick, 13 Daly, Vincett v. Cook, 6 Thomp. & C. 562, 438 ; Calder v. Smalley, 66 Iowa, 219 ; 4 Hun, 318. Dalay v. Savage, 145 Mass. 38 ; Irvin n Gleason v. Amsdell, 9 Daly, 393. V. Fowler, 5 Bob. N. Y. 482. '^ Maddox v. Cunningham, 68 6a. 6 Nelson v. Godfrey, 12 111. 20. 431. 7 Mairs v. Manhattan Real Estate 466 CHAP. XU.] PUBLIC WAYS. §997 der them impassable. Therefore the grade is, because it must be, determined by the proper official persons. And in most of our States the same rule is judicially applied to subsequent repairs ; leaving the abutters without remedy for harm from a change of grade, except perhaps where it is made mali- ciously.^ In Ohio, the contrary is maintained, to the extent of giving compensation to lot-owners for injuries from any change of an established grade, and from other analogous improvements.^ While the majority rule seems to be an in- evitable deduction from common-law principles, there is often a high practical justice in the Ohio doctrine, and it or some- thing like it has been gradually wrought out in various other States, by statutes, constitutional provisions, or municipal by-laws.3 And, in all, negligent grading is a ground for damages.^ 1 Callendar v. Marsh, 1 Pick. 418 ; Dore V. Milwaukee, 42 Wis. 108 ; Hen- dershott v. Ottumwa, 46 Iowa, 658 ; Macon v. HUI, 58 Ga. 595 ; Smith v. Washington, 20 How. U. S. 135 ; Brit- ish Cast-plate Manof. v. Meredith, 4 T. B. 794. The cases are very numer- ous. See a coUectiou of them in 2 Dil. Mun. Corp. § 783, note. » In Cohen d. Cleveland, 43 Ohio State, 190, 193, Okey, J. states : " In- juries resulting from the change of estahlished grades in streets, though made in accordance with the statute, and without negligence or malice, and other injuries of a kindred character, have been held to afford ground for the recovery of damages against municipal corporations. [Referring to Ehodes v. Cleveland, 10 Ohio, 159 ; McCombs v. Akron, 15 Ohio, 474, 479; s. c. nom. Ak- ron V. McComb, 18 Ohio, 229 ; Crawford V. Delaware, 7 Ohio State, 459 ; Youngs- town V. Moore, 30 Ohio State, 133 ; Keating v. Cincinnati, 38 Ohio State, 141. And see Little Miami Rid. v. Nay- lor, 2 Ohio State, 235; Cincinnati, &c. St. By. V. Cumminsville, 14 OKio State, 523; Richards ». Cincinnati, 31 Ohio State, 506 ; Story v. New York Elev. Rid. 90 N. Y. 122.] This court has, how- ever, constantly acknowledged that Mc- Combs V. Akron, and cases following it, are a departure from the current of au- thority elsewhere ; and, although these cases have not found favor with the judges delivering the opinions in Ead- cliff V. Brooklyn, 4 Comst. 195 ; HUI w. Boston, 122 Mass. 344, 378 ; Alexander V. Milwaukee, 16 Wis. 247, 256 ; Trans- portation Co. V. Chicago, 99 U. S. 635, we are entirely content with the doc- trine, and would not change it if we could. But the justice of the Ohio rule, the firmness with which it has been adhered to for nearly half a cen- tury, and the manner in which it is recognized and enforced in our statutes, have established the doctrine as a rule of property, and it is now too late to inquire whether McCombs v. Akron was properly decided. In other States, the same rule is in part or wholly adopted by constitutional or statutory provision." ' Some of the later cases are Kelly v. Baltimore, 65 Md. 171 ; Nashville v. Nichol, 3 Baxter, 338 ; Given v. Des Moines, 70 Iowa, 637 ; Meyer v. Froipm, 108 Ind. 208 ; CampbeU v. PhUadel- phia, 12 Out. Pa. 300. * Ante, § 751 ; Field v. West Or- ange, 9 Stew. Ch. 118; West Orange 467 § 1001 PARTICULAR PLACES AND THINGS. [BOOK V. § 998. Lateral Support, — while due from the adjoining land-owner to the way,^ is, in reason, equally due from the way to the land-owner. Therefore it has been adjudged that, if the lateral support is in grading removed, he is entitled to damages,^ though there are cases to the contrary .^ The rule of the law in other things being so,* there is no necessity for an exception in favor of public ways. On the other side, — § 999. Support for Way. — When a public way has been laid out at a given width, if the authorities so pile the earth in making it that it finds support on unappropriated land ad- joining, they are responsible to the owner.* § 1000. Water. — The rules regulating watercourses and surface waters ® extend to public ways. The builder of the way will be responsible, except as against the act of God,'' if he obstructs or diverts a watercourse to the injury of an- other ; * but it is commonly otherwise of surface water .^ § 1001. Disoontinuanoe. — If a public way is discontinued, the owner of the fee has back his land divested of the ease- ment.!" And one who has used the way, however much, can- not retain his right to it as a private way.^^ V. Field, 10 Stew. Ch. 600; Onne v. 26; Kellogg d. Thompson, 66 N. Y. 88; Eichmond, 79 Va. 86 ; Talbot v. Taun- McClure v. Eed Wing, 28 Minn. 186 ; ton, 140 Mass. 552 ; North Vernon v. Wayland v. St. Louis, &c. By. 75 Mo. Voegler, 103 Ind. 314 ; Clemence v. 548. Auburn, 66 N. Y. 334 ; Princeton v. » Keith v. Brockton, 136 Mass. 119 ; Gieske, 93 Ind. 102 ; Gray v. Knox- Morris v. Council Bluffs, 67 Iowa, 343 ; ville, 85 Tenn. 99. Gould o. Booth, 66 N. Y. 62 ; Mover 1 Ante, § 994. v. New York CenJ. &c. Rid. 88 N. Y. a Dyer v. St. Paul, 27 Minn. 457 ; 351 ; Abbott v. Kansas City, &c. Eld. Meares v. Wilmington, 9 Ire. 73 ; Kea- 83 Mo. 271 ; Waters v. Bay View, 61 ting V. Cincinnati, 38 Ohio State, 141. Wis. 642 ; McOsker v. Burrell, 55 Ind. « On this side of the question, Dil- 425 ; Noble v. St. Albans, 56 Vt. 522 Ion (2 Mun. Corp. § 783, note) cites Rutherford v. HoUey, 105 N. Y. 632 Taylor u. St. Louis, 14 Mo. 20 ; St. Parker ■«. Nashua, 59 N. H. 402 Louis V. Gurno, 12 Misso. 414 ; Rome Freburg v. Davenport, 63 Iowa, 119 V. Omberg, 28 Ga. 46. Gilfeather v. Council Bluffs, 69 Iowa, * Ante, § 905-913. 310. ' Mayo V. Springfield, 136 Mass. i" Pittsburgh, &c. Rid. v. Bruce, 6 10. Out. Pa. 23 ; Van Amringe v. Bamett, « Ante, § 888-903. 8 Bosw. 357 ; Paul v. Carver, 12 Har- ' Ante, § 166-17?. ris. Pa. 207. ' Manning v. Lowell, 130 Mass. 21 ; u Qlaze v. Western, &c. Eld. 67 6a. Fnion Trust Co. v. Cnppy, 26 Kan. 754; 761. Stodghill V. Chicago, &c. Rid. 43 Iowa, 468 CHAP. XLI.] PUBLIC WAYS. § 1005 IV. Third Persons Injuring a Puhlic Way. § 1002. Liability to Private Person. — Whoever, by any ob- struction or other injury to a public way, brings a special harm ^ to another, must compensate him, whether the latter had an election to proceed against the municipality or not.^ And a like liability extends to one who needlessly obstructs a navigable stream.^ And, — § 1003. To MunicipaUty. — In these cases, if there is a mu- nicipality or other party also liable, it may after paying the damages recover them of him.* Or if, when he has injured a street, he refuses to repair it, whereupon the municipality does the work, he must refund the cost.^ § 1004. Illustrations — of these principles are multitudinous and obvious. A reader specially in need of them will find suflBcient in the cases already cited to this sub-title, and in those appended to this section.® V. The Rights and Wrongs in Using Public Ways. § 1005. Variable. — The adaptations of the common law to constantly changing circumstances and affairs are admirably 1 Ante, § 950 ;, Winterbottom v. Works, 25 Mo. Ap. 527 ; Jewett v. Derby, Law Eep. 2 Ex. 316. Gage, 55 Maine, 538. 2 Potter V. Menasha, 80 Wis. 492 ; » Giffordw. McArthur, 55 Mich. 535; Trowbridge D. Forepaugh, 14 Minn. 133; Blanohard v. Western Union Tel. 60 Wright V. Saunders, 65 Barb. 214, 219; N. Y. 510. Western Union Tel. ■». Eyser, 2 Colo. * Ante, § 585 ; Sioux City v. Weare, 141; Pittsburgh, &c. Ry. v. Sponier, 85 59 Iowa, 95. Ind. 165 ; James v. Hayward, Cro. Car. * Centefville v. Woods, 57 Ind. 192. 184 ; Goelet v. Newport, 14 E. I. 295 ; « Fay b. Kent, 55 Vt. 557 ; Banks McCoy V. Philadelphia, &c. Eld. 5 v. Highland Street Ey. 136 Mass. 485 ; Houst. 599 ; Marriott v. Stanley, 1 Boston v. Gray, 144 Mass. 63 ; Julia Scott N. E. 892 ; Matthews v. Missouri Building Assoc, v. Bell Telephone, 88 Pac. Ey. 26 Mo. Ap. 75 ; Sexton v. Mo. 258 ; Cahill v. Layton, 57 Wis. Zett, 44 N. Y. 430 ; Branch v. Libbey, 600 ; Beauchamp v. Saginaw Min. Co. 78 Maine, 321 ; Hundhausen v. Bond, 50 Mich. 163 ; Turner v. Buchanan, 82 36 Wis. 29 ; Smith v. Matteson, 41 Ind. 147 ; Gwinnell v. Earner, Law Hun, 216 ; Ball v. Armstrong, 10 Ind. Rep. 10 C. P. 658 j Harris v. Mobbs, 181 ; Glasby v. Morris, 3 C. E. Green, 3 Ex. D. 268. 72 ; Sheedy v. Union Press Brick 469 § 1008 PAETICULAE PLACES AND THINGS. [BOOK V. illustrated in the subject of this sub-title. From the un- wrought road-beds in our native forests and unploughed prairies to the granite-paved streets in the denser parts of our large cities, the former resting on unbroken earth and the latter on a honeycomb of sewers, water-pipes, gas-pipes, and pipes for electric wires, we have public ways of every variety, each fitted for a travel and for collateral uses differing from the rest. For all which, and sufficient for all, the common law has its one flexible rule, working out its results in num- berless minor forms; namely, — § 1006. Defined. — The primary use of the public ways is the passing over them of persons with their vehicles and effects ; ^ and, resulting therefrom, the stoppings for loading and un- loading, and such other temporary pauses as convenience in the use requires.^ Secondarily to which, the way may be employed for any other purposes of public or semi-public ben- efit which do not seriously interfere with its primary use, and for supplying to individuals the necessities which arise from abutting thereon. Various illustrations of this doctrine ap- pear in the foregoing sub-titles,^ others will here follow. Thus,— § 1007. Overloading. — When a way has been made safe for the uses reasonably to be expected of it,* one is not permitted to take upon it an unusual load too heavy. K he does, and thereby injures it, he is indictable ; ^ or, if harm comes to him, the municipality responsible for its condition cannot be com- pelled to recompense him.® Of course, — § 1008. What Vehicles. — All the ordinary vehicles, drawn by horse or other like power, are allowable. Precisely how far steam may be substituted is less accurately defined, but it is not absolutely excluded.^ Bicycles, tricycles, and veloci- 1 Smith V. Leavenworth, 15 Kan. Crim. Law, § 1272, 1274, 1276, 1277, 81 ; The State v. Buckner, Phillips, 1280. K C. 558. * Ante, § 969. 2 Britton II. Cummington, 107 Mass. ^ 2 Bishop Crim. Law, § 1276 ; Com. 347 ; Donoho v. Vulcan Iron Works, Dig. Chimin, A, 3. 75 Mo. 401 ; Hundhausen ». Bond, 36 « Fulton Iron, &c. Works v. Kimball, Wis. 29. 52 Mich. 146. ' And see and compare 2 Bishop ' Macomher v. Nichols, 34 Mich. 470 CHAP. XU.] PUBLIC WATS. § 1009 pedes, things also of modern invention, appear to be permis- sible when used in a manner not dangerous or inconvenient to the public in its other uses of the way.^ And, like other vehicles, they may in their running be regulated by statutes and by-laws.2 § 1009. Travel or Play — ("TraveUer"). — Some of the stat- utes, defining the duty of repair, gpecify, to quote as an ex- ample the words in Massachusetts, that the way shall be so kept as to be " reasonably safe and convenient for travellers, with their horses, teams, and carriages, at all seasons of the year." * By construction whereof, the corporation owes no duty to people other than travellers ; so that a child or other person, using the street simply as a play-ground, has no right of action against it for any injury suffered from a want of repair.* But a meaning wider than in some other statutes ^ is given to the word " traveller ; " as, taking a single step from one's door upon the sidewalk to witness a passing procession is a travelling, whence arises the statutory protection.® And the ulterior purpose of the travelling is not material.^ But horse-racing on the street is not, within this statute, travelling, even where it is not unlawful.^ The reader should bear in mind that this exposition relates simply to the liability of the municipal corporation under this statute ; individuals and most corporations owe a duty of carefulness to everybody.^ So that, in localities where this statute prevails, persons neg- ligently injuring children playing on the public ways, or other persons within the like reasons,^" incur the same liabilities as though they were travelling. Leaving these special terms, — 212 ; Moses v. Pittsburgh, &c Eld. ^ Bishop Stat. Crimes, § 788 o. 21 111. 516 ; Parkyns o. Preist, 7 Q. ^ Vamey v. Manchester, 58 N. H. B. D. 313. 430. And see Bliss v. South Hadley, 1 Taylor v. Goodwin, 4 Q. B. D. 145 Mass. 91 ; Cummings v. Center 228 ; Parkyns v. Preist, supra ; Wil- Harbor, 57 N. H. 17. Compare with liams V. £]lis, 5 Q. 6. D. 175 ; Purple Leslie v. Lewiston, 62 Maine, 468. V. Greenfield, 138 Mass. 1. ' Strong s. Stevens Point, 62 Wis. " The State v. Yopp, 97 N. C. 477. 255. » Mass. Pub. Stats, c. 52, § 1. « McCarthy v. Portland. 67 Maine, * Blodgett V. Boston, 8 Alien, 237 ; 167. See Sowerby v. Wadsworth, 3 Tighe V. Lowell, 119 Mass. 472 ; Stin- Fost & F. 734. son V. Gardiner, 42 Maine, 248 ; Hawes » Ante, § 115, 150, 179, 436, 724. V. Fox Lake, 33 Wis. 438. ' "• Bigelow v. Eeed, 51 Maine, 325. 471 § 1012 PARTICULAR PLACES AND THINGS. [BOOK V. § 1010. Same GeneraUy. — In States wherein there are no such restrictive statutory terms, it is sufficient that the per- son injured was using the street for any lawful purpose. Within which rule, playing there is not deemed unlawful.^ And still it is by some held that a city is not responsible for an accidental injury, through a defect in the way, to one em- ploying it " for purposes wholly foreign to its legitimate ob- jects. . . . Thus, if a circus-man or a juggler monopolizes a space in a public street for exhibiting his show, and while so doing suffers an injury resulting from a defective construction of the highway, he cannot therefore have redress against the municipality." And a mere playing in the street, connected with nothing more legitimate, has been thought to fall within this distinction.^ Another distinction relates to the — § 1011. Rights of Abutters. — It is believed that, as against an abutter, especially one owning the fee,' no person is entitled to use the way for any purpose not connected with travel. To stop on the sidewalk in front of a man's house, even for a brief time, employing toward him abusive and insulting lan- guage, is an actionable wrong and otherwise a trespass ; and it is the same if " a strolling musician stops in front of a gen- tleman's house, and plays a tune or sings an obscene song under his window." * And within this distinction the using of a street before a dwelling-house or shop as a play-ground, or hawking-ground, or show-ground, against the dissent of the occupant of the building, is a trespass for which he has the various remedies of the law. § 1012. Contributory Negligence. — In suits against munici- pal corporations for injuries from negligently kept ways, the vital issue is oftenest that of contributory negligence.^ And 1 McGuire-w. Spenoe, 91 N. Y. 308, 810 ; Williams v. Leyden, 119 306 ; Chicago v. Keefe, 114 111. 222 ; 237 ; Chicago v. Bixby, 84 111. 82 ; Indianapolis v. Emmelman, 108 Ind. Vicksburg v. Hennessy, 54 Missis. 391 ; 530. Osbome v. Hamilton, 29 Kan. 1 ; Forks 2 Donoho W.Vulcan Ironworks, 7 Mo. v. King, 3 Norris, Pa. 230 ; Butterfield Ap. 447, 451, Lewis, P. J., 75 Mo. 401. v. Forrester, 11 East, 60 ; Hammond v. « Ante, § 989. Mukwa, 40 Wis. 35 ; Stiles v. Geesey, * Adams v. Rivers, 11 Barb. 390, 398. 21 Smith, Pa. 439 ; Gribble v. Sioux * Ante, § 459 ; Riest v. Goshen, 42 City, 38 Iowa, 390 ; Fogg v. Nahant, Ind. 339 ; Sears v. Dennis, 105 Mass. 106 Mass. 278 ; Massey v. Columbus, 472 CHAP. XLI.] PUBLIC WAYS. §1013 commonly its decision is, under instructions from the court, for the jury.i But as the effect of proven facts is always for the court, and in cases which go past the bench to the jury they are to be instructed, this question of contributory negli- gence is practically very much of law.^ Thus, — § 1013, Degree of Care — Known Defects. — It being the duty of the municipality to keep the highways in repair, per- sons passing over them have the right to assume that the duty is done,^ and that they are safe.* In this condition of the facts, therefore, the traveller is required to use only ordi- nary care, and the non-exercise of extraordinary care will not defeat his recovery for injuries from a defect.^ But if, in a particular instance, he has knowledge that the way is in an ill condition, he must, should he use it, apply a greater or still greater care,^ according to the demands of the special facts.^ And the danger may be so imminent, and the necessity for passing over it so slight, that the court can pronounce the going upon it negligence in law, whereupon any resulting in- jury will be without recompense.^ Yet ordinarily, as the 75 Ga. 658 ; Munger v. Marshalltown, 56 Iowa, 216 ; Hedges v. Kansas, 18 Mo. Ap. 62 ; Prince George's County v. Burgess, 61 Md. 29. 1 Ante, § 469 ; MuUer v. District of Columbia, 5 Mackey, 286 ; Brennau v. Friendship, 67 Wis. 223 ; Keuworthy ». Ironton, 41 Wis. 647 ; Pollard v. Wobum, 104 Mass. 84 ; Thomas v. New York, 28 Han, 110 ; McCool o. Grand Eapids, 58 Mich. 41 ; Greenwood n. Callahan, 111 Mass. 298 ; Fnlliam v. Muscatine, 70 Iowa, 436 ; Altoona v. Lotz, 4 Am. Pa. 238 ; Gulline v. Low- ell, 144 Mass. 491 ; Evans v. Utica, 69 N. Y. 166, 168 ; Morrell v. Peck, 88 N. Y. 398 ; Osage City v. Brown, 27 Kan. 74 ; Hart v. Red Cedar, 63 Wis. 634 ; Daniels v. Lebanon, 58 IS. H. 284; Ochsehbein v. Shapley, 85 K Y. 214; Mattey v. Whittier Mach. Co. 140 Mass. 337 ; Sheehy v. Burger, 62 N. Y. 568. 2 Ante, § 442-444, 469 ; Lindsey v. Danville, 45 Vt. 72 ; Houston v. Trapha- gen, 18 Vroom, 23. s 1 Bishop Crim. Prooed. § 1130, 1131. * Indianapolis v. Gaston, 58 Ind. 224 ; Jennings v. Van Schaick, 108 N. Y. 530. 6 Griffin ». Willow, 43 Wis. 509 ; Lincoln v. Walker, 18 Neb. 244, 250. And see ante, § 438, 468. ' "He should be careful in propor- tion to the danger of which he has knowledge." Black, C. in Henry Coun- ty Tump. V. Jackson, 86 lud. Ill, 114. ' Owen V. Chicago, 10 Bradw. 465 ; Aurora v. Brown, 12 Bradw. 122 ; Walker o. ReidsviUe, 96 N. 0. 382 ; Altoona v. Lotz, 4 Am. Pa. 238 ; Evans V. Utica, 69 N. Y. 166 ; Nicks v. Mar- shall, 24 Wis. 139 ; Indianapolis v. Cook, 99 Ind. 10 ; Wilson v. Trafalgar, &c. Gravel Road, 93 Ind. 287 ; Bullock V. New York, 99 N. Y. 654 ; Emporia v. Schmidling, 33 Kan. 485 ; post, § 1064. 8 Hartman v. Muscatine, 70 Iowa, 511 ; Merrill v. North Yarmouth, 78 Maine, 200 ; Wood v. Andes, 11 Hun, 473 §1015 PARTICULAR PLACES AND THINGS. [book V. laying out of the way has established its legal necessity ,i the mere fact that one, knowing of a defect, passes over it, will not defeat his claim should he suffer harm.^ These not very exact rules require skill in the application to the ever-changing facts, yet they could not be made essentially more definite without becoming also misleading. As to — § 1014. Children and their Parents. — The doctrine of the contributory negligence of parents and children, where an injury befalls the child, is considered in a preceding chapter.* There is little in the doctrine special to ways, requiring ex- planation here, but a reference to a few of the cases may be convenient.* A five year old child's mere playing on a side- walk does not necessarily bar the action for an injury.^ § 1015. How Use. — Persons travelling upon a public way are entitled to go on whatever unoccupied part of it they choose ; ^ even on the vacant tracks laid for street cars.'^ And pedestrians have an equal right with the carriages on the carriage-portion of the way ; at least, while crossing.^ They 543 ; Prince George's County v. Bur- gess, 61 Md. 29 ; Erie o. MagUl, 5 Out. Pa. 616 ; Pavkhill v. Brighton, 61 Iowa, 103, 108 ; Zettler v. Atlanta, 66 Ga. 195 ; Twogood v. New York, 12 Daly, 220 ;• Burr v. Plymouth, 48 Conn. 460 ; MoGinty v. Keokuk, 66 Iowa, 725 ; Maultby v. Leavenworth, 28 Kan. 745 ; Corlett V. Leavenworth, 27 Kan. 673 ; Pittsburgh So. Ey. v. Taylor, 8 Out. Fa. 306 ; Momeuce v. Kendall, 14 Bradw. 229. 1 Ante, § 162. ' Hawks V. Northampton, 121 Mass. 10 ; Fulliam v. Muscatine, 70 Iowa, 436 ; Thomas v. Western Union Tel. 100 Mass. 156 ; Albion v. Hetrick, 90 Ind. 545 ; McKenzie *. Northfield, 30 Minn. 456 ; Nichols v. Minneapolis, 33 Minn. 430 ; Gilbert v. Boston, 139 Mass. 313 ; Toledo, &c. Ey. v. Branna- gan, 75 Ind. 490 ; Smith v. St. Joseph, 45 Mo. 449 ; Henry County Turnp.' v, Jackson, supra ; Montgomery v. Wright, 72 Ala. 411 ; Walker v. Decatur, 67 Iowa, 307 ; Osborne v. London, &o. Ey. 21 Q. B. D. 220 ; Osage City v. Brown, 474 27 Kan. 74 ; Ross v. Davenport, 66 Iowa, 548 ; Stephens «. Macon, 83 Mo. 345 ; Hart v. Red Cedar, 63 Wis. 634 ; Lowell V. Watertown, 58 Mich. 568 ; Dewire v. Bailey, 131 Mass. 169 ; Fox v. Sackett, 10 Allen, 535. 8 Ante, § 572-590. * Collins V. South Boston Eld. 142 Mass. 301 ; Smith v. Grand Street, &c. Kid. 11 Abb. N. Cas. 62 ; Chicago v. Hesing, 83 111. 204 ; Montfort v. Schmidt, 86 La. An. 760 ; Schierhold V. North Beach, &c. Rid. 40 Cal. 447 ; Galveston City Eld. v. Hewitt, 67 Texas, 473 ; Congreve v. Morgan, 4 Duer, 439 ; farris v. Cass Avenue, &c. Ey. 80 Mo. 325. 6 Fallon V. Central Park, &c. Eld. 64 N. Y. 13 ; McGarry v. Loomis, 63 N. Y. 104 ; Birkett ii. Knickerbocker Ice Co. 41 Hun, 404. * Smith V. Leavenworth, 15 Kan. 81; Foster v. Goddard, 40 Maine, 64 ; Stin- son V. Gardiner, 42 Maine, 248. ' Galveston City Eld. v. Hewitt, 67 Texas, 473. 8 Barker v. Savage, 45 N. Y. 191 ; CHAP. XLI.] PUBLIC WATS. § 1016 may cross anywhere, not being limited to the cross-walks ; ^ and, if they prefer, diagonally.^ Vehicles on rails, and the common carriages however propelled, have, except as to the precedence of the former on their own tracks, equal privi- ^ leges on the roads appropriated to all, and the duty of care in their drivers is mutual and equal.^ Now, — § 1016. Meeting and Passing. — A statutory provision nearly uniform in our States is, to quote the Massachusetts words, that, " when persons meet each other on a bridge or road, travelling with carriages, wagons, carts, sleds, sleighs, or other vehicles, each person shall seasonably drive his carriage or other vehicle to the right [not left, as in England and our American British Provinces] of the middle of the travelled part of such bridge or road, so that their respective carriages or other vehicles may pass each other without interference." * This statute does not apply to a person on foot ^ or horse- back,® or to a railroad car,'^ meeting the vehicle ; or to a vehicle approaching it from a cross street,^ or to a building moved through the street.^ Nor does it apply to vehicles on the same street, except at the point of meeting ; subject to which exception, they may occupy either side or the middle at the driver's election.^" Nor yet does the provision thus quoted regulate the passing of one vehicle by another moving in the same direction ; in which case, it should take the safer side." But the Massachusetts statute adds, as to this, that such vehicle shall go " to the left of the middle of the trav- Coombs V. Piimngton, 42 Maine, 472. Contra, in England, Turley v. 332 ; Brooks v. Schwerin, 54 N. Y. Thomas, 8 Car. & P. 103. See Garri- 343. gan v. Berry, 12 Allen, 84 ; Beach v. 1 Moebus V. Herrmann, 108 N. Y. Parmeter, 11 Harris, Pa. 196. 849. ' Hegan v. Eighth Avenue Rid. 15 2 Shea V. Keems, 36 La. An. 966. N. Y. 380. ' Indianapolis, &e. Eld. v. McLin, * Lovejoy v. Dolan, 10 Cush. 495 ; 82 Ind. 435 ; Citizens Street Ey. v. Garrigau v. Berry, supra. Steen, 42 Ark. 321. See Cotterill v. » Graves v. Shattuck, 35 N. H. 257. Starkey, 8 Car. & P. 691. 1° Parker v. Adams, 12 Met. 415, * Mass. Pub. Stats, c. 93, § 1 ; Com- 419 ; Lovejoy v. Dolan, supra^ at p. 496 ; monwealth v. Allen, 11 Met. 403. Clifford v. Tyman, 61 N. H. 508. ' Cotterill V. Starkey, 8 Car. & P. " Clifford o. Tyman, supra. And ggi, see Avegno v. Hart, 25 La, An. 235 ; » Dudley v. BoUes, 24 Wend. 465, Bolton v. Colder, 1 Watts, 360. 475 § 1018 PABTICDLAB PLACES AND THINGS. [BOOK V. elled part of a bridge or road ; and, if the bridge or road is of sufficient width for the two vehicles to pass, the driver of the leading one shall not wilfully obstruct the same." ^ There- upon, — § 1017. Further as to which. — It is plain that, if the way is worked and used for travel its entire width, there is not lit- erally any " travelled part ; " while yet two vehicles meeting, each directly in front of the other, are not therefore to col- lide, but the equity of the statute requires each to deflect to the right. If each is on the left side of the street, or far enough to the left of the other to avoid a collision, and in this manner they pass the point of meeting, the statute is not violated. And this leads us to the completed view ; namely, that its rule is for cases only, "wherein, by the reasonable an- ticipation of parties meeting, the following of it may avoid a collision, not for those exceptional ones in which it would defeat its own purpose. Though this interpretation may not have been expressed in words by the judges, it harmonizes with and reconciles the decisions.^ And it avoids an excep- tion to the doctrine ^ that the disregard of a command of the law is negligence. Where the statute is applicable, one about to meet another may justly assume that he will conform there- to, turning aside as it directs.* § 1018. Negligence in Use. — There is little occasion to add, what follows from explanations already appearing in this chapter and throughout the volume, that any negligence of one in even the lawful use of a street,^ resulting, as a natural 1 Maaa. Pub. Stats, c. 93, § 2 ; Smith Wood, 5 Esp. 44 ; Gale v. Lisbon, 52 ». Conway, 121 Mass. 216. N. H. 174. 2 Ant«, § 466, 467 ; Beckerle v. s Ante, § 140, 178, 445, 464, 652. Weiman, 12 Mo. Ap. 364 ; Reynolds v. * Wood b. Luscomb, 23 Wis. 287. Hanrahan, 100 Mass. 313 ; Flagg v. And see Daniels v. Clegg, 28 Mich. 32. Hudson, 142 Mass. 280 ; Smith v. Gard- ' Ante, § 436 ; Fl-azer v. Kimler, 5 ner, 11 Gray, 418 ; Wrinn u. Jones, Thomp. & C. 16, 2 Hun, 514 ; Macom- 111 Mass. 360 ; Kennard ». Bnrton, 25 ber ». Nichols, 34 Mich. 212 ; Moulton Maine, 39 ; Jaquith v. Bichardsou, 8 v. Aldrich, 28 Kan. 300 ; Waters -o. Met. 213 ; Garrigan v. Berry, 12 Allen, Wing, 9 Smith, Pa. 211 ; Murphy w. 84 ; Grierw. Sampson, 3 Casey, Pa. 183 ; Orr, 96 N. Y. 14 ; Herrick w. Sullivan, Butterfield v. Forrester, 11 East, 60 ; 120 Mass. 576 ; Rumsey ». Nelson, 58 Lyons v. Child, 61 N. H. 72 ; Lynam Vt. 590. v. Union Ey. 114 Mass. 83 ; Clay v. 476 CHAP. XLI.] PUBLIC WATS. § 1021 and probable consequence,^ in injury to another who is him- self without fault or negligence,^ entitles the latter to com- pensation. So, — § 1019. Municipal Liability. — Under the like limitations, the town or city answerable for the condition of the ways ^ is, if having due knowledge or notice it is negligent in the dis- charge of its duty of repair, liable in damages to one who suffers in person or estate from a defect therein.* But, — § 1020. statutory Notice. — In some of the States, by stat- ute, a written notice of the nature and place of the injury must first be given to the town or city, without which the action cannot be maintained.^ But in the absence of a statute no notice before suit is necessary.® § 1021. Illustrations of these Doctrines — abound in the books. But, since the doctrines are plain, since the facts of cases so vary that what has been will never be exactly re- peated, and since the slightest shifting of tlie facts will often change the result, the practitioner can derive but small help from particular instances. It may be said, in general terms, that, for the driver of a street car to be looking back instead of forward,^ in some circumstances for one taking a heavy load down a steep hill to omit to chain the wheel of his vehicle,* or for one driving on a street-car track not to look 1 Ante, § 457 ; Aldrich v. Gorhani, v. Brookline, 119 Mass. 491 ; Hannon 77 Maine, 287 ; Galveston v. Pos- v. Agnew, 96 N. Y. 439 ; Clark v. Leb- nainsky, 62 Texas, 118 ; Campbell a. anon, 63 Maine, 393 ; Southworth v. Stillwater, 32 Minn. 308 ; Chicago v. Old Colony, &c. Ry. 105 Mass. 342 ; Schmidt, 107 111. 186 ; Selleck v. Lake Rn.shville v. Poe, 85 Ind. 83 ; Chappell Shore, &c. Ry. 58 Mich. 195. v. Oregon, 36 Wis. 145. !! Ante, § 459, 1012-1014 ; Belton v. » Gregg v. Weathersfield, 55 Vt. Baxter, 54 N. Y. 245 ; Cressy v. Post- 385 ; Shallow v. Salem, 136 Mass. ville, 59 Iowa, 62 ; Albert v. Bleecker 136 ; Fortin v. Eastharapton, 142 Mass. Street, &c. Rid. 2 Daly, 389; TnflFree ». 486 ; Canterbnry ». Boston, 141 Mass. State Center, 57 Iowa, 538 ; Shapleigh 215 ; Brown v. Southbury, 53 Conn. V. Wyman, 134 Mass. 118 ; Howard v. 212 ; Shea v. Lowell, 132 Mass. 187 ; Tyler, 46 "Vt. 683 ; Pittsburg, &c. Ry. Wormwood v. Waltham, 144 Mass. V. Bamstead, 48 111. 221 ; Moulton v. 184 ; Fields v. Hartford, &o. Rid. 54 Aldrich, 28 Kan. 300. Conn. 9. * Ante, § 957 et seq. * Green v. Spencer, 67 Iowa, 410. * Ante, § 963-967 ; Centralia v. ' Collins v. South Boston Rid. 142 Scott, 59 111. 129 ; Baldwin v. Green- Mass. 301. woods Tump. 40 Conn. 238; Mont- ' Aldrich ■». Monroe, 60 N. H. 1 18. gomery v. Wright, 72 Ala. 411 ; Lyons 477 § 1022 PARTICULAR PLACES AND THINGS. [BOOK V. back to see whether a car is approaching,^ is negligence. It is not necessarily and as of law such for one to have upon the street a horse with vision imperfect,^ or for a blind person to be abroad without a guide,^ but this sort of matter, viewed in connection with the accompanying facts, will be for the jury. Great care should be exercised in passing with a car- riage through a crowded street,* but to drive at a "lively trot" is not of necessity negligence.® Other illustrations might be added,® but these will suffice, at least, to show how little practical help they are capable of rendering. It is as though a writer should attempt, by details of evidence and prior verdicts, to teach juries what findings to make in sub- sequent causes. § 1022. The Doctrine of this Chapter restated. In the larger meaning of the words, every track or expanse, whether of land or water, over which all persons are privi- leged to pass, on foot or in any land or water vehicle, is a public way. The more familiar public ways are those con- structed upon the land, for the use of people going from place to place, in their carriages, or on foot. How and by whom this sort of way is to be built and maintained, the rights and duties of particular persons and corporations relating to it, the remedies of travellers injured by defects therein, the manner of its use, and the consequences of misusing it, — these, severally and collectively, have furnished the principal topics of the chapter. And the rights and duties of persons regarding other ways have been shown to be analogous. The unfoldings have been so -wide and minute that further repeti- tions are not deemed to be here desirable. 1 Wood V. Detroit City Street Ey. 92 N. Y. 652 ; Carter v. Chambera, 79 52 Mich. 402. Ala. 223. 2 "Wrigiit V. Templeton, 132 Mass. ^ po,. example, Sites v. Sheldon, 58 49. Iowa, 744 ; Rockford v. Tripp, 83 111. 8 Salem v. GoUer, 76 Ind. 291 ; 247 ; Parker v. Union Woollen Co. 42 Smith V. Wildes, 143 Mass. 556. Conn. 399 ; Faulkner ». Aurora, 85 * Vaughn «. Scade, 30 Mo. 600. Ind. 130; Conway v. Hannibal, &o. ^ Crocker ». Knickerbocker Ice Co. Rid. 24 Mo. Ap. 235. 478 CHAP. XLII.] EQUIPPING AND EUNNING RAILROADS. § 1024 BOOK VI. LOCOMOTION OF PERSONS AND THINGS. CHAPTER XLII. THE EQUIPPING AND RUNNING OF RAILROADS. § 1023. Degree of Care. — Railroads and their equipments are, when in use, powerful instrumentalities, and in some circumstances dangerous. So they should be fitted up and operated with a corresponding care, which will vary with the particular danger, and the gravity of the consequences of a miscarriage.^ Thus, — § 1024. Construction and Equipment. — The amplest skill and circumspection should be employed in the construction and equipment, and the materials and machinery should be subjected to the due tests.^ All needful appliances for the safe running of cars — such as suitable brakes,^ coupling arrangements,* headlights ^ — should be provided. The loco- motives should be in the proper condition ; ® for instance, it 1 Ante, § 438-441, 645, 646, 840, Eld. v. Phillips, 49 111. 234, 237, 65 111. 843, 1013 ; Hicks v. Pacific Eld. 64 Mo. 194; Solomon Rid. v. Jones, 30 Kan. 601. 430 ; Unger v. Forty-second Street, &c. » Forbes v. Atlantic, &c. Eld. 76 Eld. 51 N. Y. 497 ; Illinois Cent. Eld. N. C. 454 ; Union Pacific Ry. v. Har- V. Phillips, 49 111. 234 ; Chicago, &e. wood, 31 Kan. 388. Eld. V. Stumps, 55 111. 367 ; East Ten- * Gottlieb v. New York, &c. Eld. nessee, &c. Eld. v. Selcer, 7 Lea, 657 ; 100 N. Y. 462 ; Whitwam v. Wiscon- Louisville, &c. Eld. v. Connor, 9 Heisk. sin, &c. Eld. 58 Wis. 408. 19 ; Hill V. Louisrille, &c. Eld. 9 Heisk. ^ Alabama Great So. Eld. v. Jones, 823 ; Memphis, &c. Eld. v. Smith, 9 71 Ala. 487. Heisk. 860. ' Bajus v. Syracuse, &c. Eld. 103 2 Ante, § 644-646 ; Illinois Cent. N. Y. 312. 479 § 1025 LOCOMOTION OP PERSONS AND THINGS. [BOOK VI. is negligence to use one from which water leaks, forming ice, and thus endangering a switchman.^ An insecure bridge,^ a hole in a platform ,3 litter or other things in the right of way or in the company's approaches to it, from which harm may arise,* must be avoided. At times indicated by the circum- stances, the track must be inspected, and injuries from storms and other things promptly guarded and repaired.^ The appli- ances must be kept in repair,* and suitable servants in due numbers provided.'^ § 1025. Speed. — In the absence of any statute, municipal by-law, or rule of the particular road,^ regulating the speed of cars, no excessive rapidity will constitute negligence per se,* though, in passing upon an accident alleged to have proceeded from the road's negligence, the jury may consider the speed in connection with the other facts .^^ But we have various statutes ^1 and city by-laws ^^ restricting the speed in par- 1 Flynn v. Wabash, &c. Eld. 18 Bradw. 235. 2 Louisville, &o. Ky. v. ThompRon, 107 Ind. 442. 8 Louisville, &c. Eld. o. Wolfe, 80 Ky. 82. * Hayden v. Skillings, 78 Maine, 413 J Gleeson v. Virginia Midland Eld. 5 Mackey, 356 ; Texas, &c. Ry. v. Val- lie, 60 Texas, 481 ; Moore v. Wabash, &e. Ey. 84 Mo. 481 ; Hulehan v. Green Bay, &e. Ey. 58 Wis. 319 ; Keams v. Chicago, &o. Ey. 66 Iowa, 599 ; Mont- gomery, &c. Ey. V. Chambers, 79 Ala. 838. 5 Hardy ». North Carolina Cent. Rid. 74 N. C. 734 ; Sweeney v. Minneapolis, &c. Ry. 33 Minn. 153. ' Ante, § 647 ; Belair v. Chicago, &c. Hy. 48 Iowa, 662. ' Ante, § 653-656 ; Toledo, &c. Ey. V. McGinnis, 71 111. 346 ; Hoye v. Chi- cago, &o. Ry. 67 Wis. 1 ; Hays v. Houston, &o. Rid. 46 Texas, 272 ; New Orleans, &c. Rid. v. Burke, S3 Missis. 200 ; Schmidt v. Chicago, &o. Ry. 83 111. 405 ; Sellars b. Richmond, &c. Eld. 94 N. C. 654 ; East Tennessee, &c. Eld. V. White, 5 Lea, 540 ; Bums v. North 480 Chicago Rolling Mill, 65 Wis. 312 ; Mc- Grath v. New York Cent. &c. Eld. 1 Thomp. & C. 243. ^ Ante, § 652 ; International, &c. Ey. ». Gray, 65 Texas, 32. ' MoKonkey v. Coming, &c. Eld. 40 Iowa, 205 ; East Tennessee, &c. Rid. V. Winters, 85 Tenn. 240 ; Main v. Han- nibal, &e. Rid. 18 Mo. Ap. 388 ; Powell V. Missouri Pao. Ry. 76 Mo. 80 ; Chi- cago, kc. Ry. V. Givens, 18 Bradw. 404. w Artz V. Chicago, &c. Rid. 44 Iowa, 284 ; East Tennessee, &c. Rid. o. Deaver, 79 Ala. 216. 11 Central Rid. v. Russell, 75 Ga. 810 ; Illinois Cent. Eld. v. Jordan, 63 Missis. 458 ; New Orleans, &c. Eld. v. Toulme, 59 Missis. 284. 12 Neier v. Missouri Pac. Ry. 12 Mo. Ap. 25 ; Bowman v. Chicago, &c. Eld. 85 Mo. 533 ; Hanlon v. South Boston Horse Rid. 129 Mass. 310 ; Crowley v. Burlington, &c. Ey. 65 Iowa, 658 ; Mahan v. Union Depot, &c. Co. 34 Minn. 29 ; Fell v. Burlington, &o. Eld. 43 Iowa, 177 ; Philadelphia, &o. Kid. v. Stebbing, 62 Md. 504. CHAP. XLII.J EQUIPPING AND RUNNING RAILROADS. § 1027 ticular places ; disobedience to which is, among other conse- quences, negligence.^ A like doctrine applies to — § 1026. Signals. — "Where, as is common, a statute or ordi- nance requires a hell to be rung, a whistle to be blown, or other signal or precaution, at a particular place or time, a neglect of it, like any other negligence, will be actionable if damage is thereby caused to a person not himself in fault.^ And it is negligence so to run trains as to render the statu- tory signals unavailing as warnings.* Moreover, since all may justly rely upon the road's following its own rules, the omission of a signal required by a rule will have an equal effect, as negligence, with that of a statutory one.* But in the absence of any rule of the road or law on the subject, the duty is simply to run the cars with due care ; and, though this may in some instances require signals, there is no code of signals, or general necessity for them, to be observed.^ The whistle, for example, need not then be blown at a crossing.® § 1027. Fires. — Whatever be the danger of ignition from locomotives, the charter of a railroad justifies the use of them, and frees the, road from liability to individuals necessarily, or of pure accident,'^ subjected to loss or injury therefrom.* But 1 Ante, § 1017, and places there * Chicago, &c. Eld. v. Boggs, 101 cited ; Messenger v. Pate, 42 Iowa, 443. Ind. 522 ; Gonzales v. New York, &c. 2 Louisville, &o. Rid. v. Burke, 6 Rid. 39 How. Pr. 407. See Baltimore, Coldw. 45 ; Terre Haute, &o. Rid. o. &c. Rid. v. Mall, 66 Md. 53. Black, 18 Bradw. 45; Houston, &c. Cent. * Ante, § 652; Texas, &o. Ry. v. Ry. K.Wilson, 60 Texas, 142; Ransom ». Mallon, 65 Texas, 115. AndseeRomick Chicago, &o. Ry. 62 Wis. 178 ; Dodge v. Chicago, &c. Ry. 62 Iowa, 167 ; V. Burlington, "&c. Rid. 34 Iowa, 276 ; Phillips v. Chicago, &o. Ry. 64 Wis. Missouri Pac. Ey. v. Pierce, 33 Kan. 475 ; Chicago, &c. Eld. v. McDonald, 61 ; Paducah, &c. Eld. v. Hoehl, 12 21 111. Ap. 409. Bush, 41 ; Rafiferty v. Missouri Pac. ' Pennsylvania Rid. v. Barnett, 9 Ry. 91 Mo. 33 ; Terry v. St Louis, &c. Smith, Pa. 259 ; Beisiegel v. New York Ry. 89 Mo. 586 ; Chicago, &c. Rid. v. Cent. Eld. 40 N. Y. 9 ; Grippen v. New Lee, 60 111. 501 ; Cincinnati, &c. Rid. York Cent. Rid. 40 N. Y. 34 ; Moran V. Butler, 103 Ind. 31 ; Chicago, &c. v. Nashville, &c. Eld. 2 Baxter, 379 ; Eld. V. Boggs, 101 Ind. 522 ; Howen- Lou«ks ». Chicago, &c. Ry. 31 Minn. 526. stein V. Pacific Rid. 55 Mo. 33 ; Hoover ' Brown v. Milwaukee, &c. Ry. 22 V. Texas, &c. Ry. 61 Texas, 603 ; Chi- Minn. 165 ; Cordell v. New York, &c. cago, &c. Rid. V. Henderson, 66 111. Rid. 64 N. Y. 535 ; Spencer v. Illinois 494 ; Baltimore, &c. Rid. v. The State, Cent. Eld. 29 Iowa, 55. 62 Md. 479 ; East Tennessee, &c. Rid. ' Ante, § 176, 177. V. Pratt, 85 Tenn. 9. 8 Ante, § 111, 184 ; Chicago, &c. 31 481 § 1029 LOCOMOTION OF PERSONS AND THINGS. [BOOK TI. any negligence in the exercise of this right,^ resulting in a fire to the damage of a person not in fault, will entitle him to indemnity .2 And negligence will be presumed, prima facie, from the mere setting of the fire by the locomotive ; casting on the road the burden of showing due care.^ Of course, the care must be commensurate with the gravity of the case.* Thus,— § 1028. Spark-arresters. — The engines must have spark- arresters, presumably safe, or the best ; though not necessarily the newest, or untried inventions.^ Yet they alone do not fill the measure of the required care ; it must be complete in every respect;^ as, — § 1029. Combustibles. — The road is under a duty to the abutters, the precise extent of which depends on decisions not quite uniform, to keep its right of way free from dry grass and weeds, and other rubbish liable to be set on fire by its engines, to the endangering of adjoining property. The neglect of this duty is not commonly deemed negligence per se ; but from it the jury may infer the negligence which will charge the road, whatever may be its spark-arresters, if the property of one not himself negligent is burned.^ As to — Kid. V. Smith, 11 Bradw. 348 ; Chi- Texas, 660 ; Green Ridge Eld. ». Brint cago, &c. Rid. V. Loeb, 118 111. 203 ; man, 64 Md. 52 ; Huffj). Missouri Pao, Dimmock v. North Staffordshire Ey. 4 Ey. 17 Mo. Ap. 356 ; Diamond v. North Fost. & F. 1058. em Pao. Rid. 6 Mont. 580 ; Jones v. 1 Ante, § 115, 179. ' Michigan Cent. Eld. 59 Mich. 437. See 2 Wise V. Joplin Eld. 85 Mo. 178 ; Euppel t>. Manhattan Ey. 13 Daly, 11 Crews V. Kansas City, &o. Rid. 19 Mo. Ashley v. Manhattan Ey. 13 Daly, 205 Ap. 302 ; Louisville, &c. Ry. v. Spenn, Brusberg v. Milwaukee, &o. Ey. 55 Wis. 87 Ind. 322 ; Louisville, &e. Ry. i). 106 ; Albert v. Northern Cent. Ey. 2 Ehlert, 87 Ind. 339 ; MoCaig v. Erie Out. Pa. 316. Ry. 8 Hun, 599 ; Missouri Pac. Ry. v. * Ante, § 1023 ; post, § 1064. Texas, &c. Ey. 31 Fed. Eep. 526 ; Pig- « Ante, § 646 ; Toledo, &e. Ry. v. got V. Eastern Counties Ey. 3 C. B. Corn, 71 111. 493 ; Kalbfleisch v. Long 229, 10 Jur. 571 ; Louisville, &o. Ry. d. Island Eld. 102 N. Y. 520 ; Bright- Krinning, 87 Ind. 351 ; Louisville, &c. hope Ey. v. Eogers, 76 Va. 443 ; In- Ry. V. Hanmann, 87 Ind. 422 ; Lowney diana, &c. Ry. v. Craig, 14 Bradw. 407. V. New Brunswick Ry. 78 Maine, 479 ; « Wilson ». Atlanta, &o. Ey. 16 S. C. Gibson v. Southeastern Ey. 1 Fost. & 587 ; Philadelphia, &o. Rid. ». Schultz, F. 23 ; Lanning v. Chicago, &c. Ry. 68 12Norris, Pa. 341 ; Patton v. St. Louis, Iowa, 502. &o. Ry. 87 Mo. 117 ; Carter v. Kansas ' Ante, § 443 ; Simpson ». East Ten- City, &e. Ry. 65 Iowa, 287 ; Palmer v. nessee, &c. Rid. 6 Lea, 456 ; Interna- Missouri Pac. Ry. 76 Mo. 217. tional, &o. Ey. v. Timmermann, 61 ' Illinois Cent. Rid. v. Frazier, 64 482 CHAP. XLII.] EQUIPPING AND RUNNING RAILROADS. § 1032 § 1030. Contributory Negligence. — It is not incumbent on an abutter to anticipate and guard against the road's neg- ligcnce.i Therefore the accumulation of combustibles on one's land, rendering the communication of a fire from the railroad more probable, is not commonly and absolutely con- tributory negligence ; ^ though special circumstances, involving gross carelessness, may justify a jury in finding it such.^ A fortiori, the non-removal of combustibles from the right of way, by the owner of the fee, is not a neglect of this or any other sort.* § 1031. statutes — have, in some of the States, made special provisions regarding railroad fires, more or less modifying the common-law rules.^ § 1032. other Questions, — liable to arise, depend on the principles developed in this chapter. Some of the questions to be considered in the next two chapters might be brought with- in the present one. Still others have presented themselves incidentally in various connections throughout the volume. The divisions of the subject are for practical convenience. 111. 28 ; Burlington, &c. Eld. ». West- over, 4 Neb. 268 ; Henry v. Southern Pac. Rid. .fiO Cal. 176 ; Pittsburgh, &o. Eld. V. Nelson, 51 Ind. 150; Pitts- burgh, &o. Ey. V. Hixon, 79 Ind. Ill ; Slossen v. Burlington, &o. Ry. 60 Iowa, 215 ; Carter ■». Kansas City, &o. Ey. 65 Iowa, 287 ; Pennsylvania Eld. v. Hope, 30 Smith, Pa. 373 ; Balsley v. St. Louis, &c. Eld. 119 111. 68 ; Eichmond, &c. Eld. 1). Medley, 75 Va. 499 ; Texas, &o. Ey. D. Medaris, 64 Texas-, 92 ; Ohio, &o. Eld. V. Shanefelt, 47 111. 497 ; Clarke ». Chicago, &c. Ey. 33 Minn. 359 ; Ayeock v. Ealeigh, &c. Eld. 89 N. C. 321 ; Hayden v. Skillings, 78 Maine, 413 ; Indianapolis, &o. Eld. v. Smith, 78 111. 112 ; Ohio, &o. Ey. ■». Clutter, 82 111. 123 ; Brighthope Ey. v. Eogers, 76 Va. 443 ; Troxler v. Eichmond, &o. Eld. 74 N. C. 377. I Lindsay v. Winona, &c. Eld. 29 Minn. 411, 412 ; Philadelphia, &c. Eld. V. Hendrickson, 30 Smith, Pa. 182 ! Ealbfleisch v. Long Island Eld. 102 N. y. 520. 2 Philadelphia, &o. Eld. v. Schultz, 12 Norris, Pa. 341 ; Louisville, &c. Ey. ■». Krinning, 87 lud. 351 ; Patton v. St. Louis, &c. Ey. 87 Mo. 117 ; Palmer v. Missouri Pac. Ey. 76 Mo. 217 ; Eich- mond, &Q. Eld. w. Medley, 75 Ta. 499 ; Pittsburgh, &o. Ey. d. Hixon, 79 Ind. 111. ' Kansas Pac. Ey. v. Brady, 17 Kan. 380 ; Toledo, &c. Ey. ». Maxfield, 72 111. 95 ; Ormond -o. Central Iowa Ry. 58 Iowa, 742 ; Lewis v, Chicago, &c. Ey. 57 Iowa, 127. * Pittsburgh, &c. Ey. v. Jones, 86 Ind. 496. * Indiana, &o. Ey. ». Nioewander, 21 111. Ap. 305 ; Davis v. Providence, &o. Eld. 121 Mass. 134 ; Thompson ». Eichmond, &c. Eld. 24 S. C. 366 ; Eowell V. Railroad, 57 N. H. 132 ; Bab- cock V. Chicago, &c. Ey. 62 Iowa, 593 ; Grissell v. Housatonic Eld. 54 Conn. 447 ; Simmonds v. New York, &c. Eld. 52 Conn. 264 ; Stratton v. European, &c. Ey. 74 Maine, 422 ; Wiley v. West Jersey Eld. 15 Vroom, 247. 488 § 1033 . LOCOMOTION OF PEESONS AND THINGS. [BOOK VI. § 1033. The Doctrine of this Chapter restated. Eailroads should be constructed, equipped, manned, and run with a care proportioned to the gravity of the conse- quences of a miscarriage therein. And when this duty is fully done, both by the corporation owning the road and by its servants, it is under no responsibility to individuals casu- ally injured. If damage comes to one through any omission of corporate duty, or of the servants of the road in their du- ties, he is entitled to compensation. When there is negligence both in the road and in the injured party, the general rule ap- plies, that neither party to a mutual negligence can recover anything of the other. 484 CHAP. XUII.] GOING ON AND CBOSSING EAILEOADS. § 1036 CHAPTER XLIII. GOING UPON AND CBOSSING EAILEOADS. § 1034. Introdnction. 1035-103Sf. Trespassing on Track. 1039-1049. Bightfully Crossing. 1050-1053. Farther Expositions. 1054. Doctrine of Chapter restated. § 1034. How Chapter divided. — We shall consider this sub- ject as to, I. Trespassing on the Track ; II. Rightfully Crossing it ; HI. Further Expositions. I. Trespaasing on the Track. § 1035. Complications and Distinctions. — Trespasses upon railroad tracks are of various grades, — purely intentional, accidental, at remote places where not to be anticipated, at thronged places where they occur as of course, under al- lurements which the road itself has held out, with its silence amounting to a quAisi consent, over its fences and against its warnings, — and each particular grade may change or bend the governing rule of the law. Tlie differing legal rules have already been brought to view in this volume ; we shall look at some of them again as we proceed. § 1036. Doctrine defined. — A railroad company, like an individual owner of land,^ owes no duty of carefulness to per- sons coming upon its track purely as trespassers, and it is not answerable for injuries casually resulting to them.^ But 1 Ante, § 845. &e. Bid. v. Hummell, 8 "Wright, Pa. » Ante, § 60 ; Chicago, &c. Rid. v. 375 ; Harty «. Central Rid. 42 N. Y. Hedges, lOi Ind. 398 ; Philadelphia, 468 ; Grethen v. Chicago, &c Ry. 22 485 § 1037 LOCOMOTION OP PERSONS AND THINGS. [BOOK TI. under the rule that discovered negligence does not bar a com- plaining party as being contributory ,i and within a wide pro- tection which the law accords to known trespassers,* if those running a train discover a trespasser in danger, they must use all reasonable exertions to avert from him the impending harm, or the road will be responsible for whatever injury fol- lows.^ Thus, — § 1037. 'Walking on Track. — If the servants running the cars, and keeping the lookout which they ought for the safety of the train,* discover an apparently capable person walking on the track before them, they, having given whatever signals may be required by the rules of the road, by a municipal by- law, or by a statute, may presume that he will seasonably step aside, so they need not diminish their speed ; and, if they omit no duty after becoming aware of his peril, the road will not be responsible for a resulting injury.^ But if they know Fed. Eep. 609 ; Harlan v. St. Louis, &c. Bid. 64 Mo. 480 ; lUinois Cent. Rid. V. Frelka, 9 Bradw. 605 ; Bell v. Hannibal, &c. Eld. 86 Mo. 599. 1 Ante, § 466, compared with § 475. 2 Ante, § 200, 824, 846, 847. » Hicks V. Pacific Rid. 64 Mo. 430 ; Harlan v. St. Louis, &c. Rid. supra ; Cook V. Central Eld. &c. Co. 67 Ala. 533 ; Burnett v. Burlington, &c. Eld. 16 Neb. 332 ; Kelley v. Union Ey. &c. Co. 18 Mo. Ap. 151 ; Eine v. Chicago, &c. Eld. 88 Mo. 392; Missouri Pac. Ey. V. Weisen, 65 Texas, 443. * Possibly there may be a difference of opinion as to whether the neglect to discover a, trespasser will charge the road. In Masser v. Chicago, &c. Ey. 68 Iowa, 602, 606, Adams, C. J. puts the doctrine thus : "The plaintiff con- tends that the boy might and should have been discovered sooner. It seems not improbable that he might have been discovered a little sooner, but no loco- motive engineer is bound to watch out for trespassers upon the track. The company does not owe trespassers that kind of care. This has been settled by repeated adjudications.'' Eeferring to 486 Gaynor v. Old Colony, &c. Ky. 100 Mass. 208, 214 ; Illinois Cent. Eld. v. God- frey, 71 111. 500 ; McClaren v. Indianap- olis, &c. Eld. 83 Ind. 319 ; Baltimore, &c. Rid. V. The State, 62 Md. 479 ; Chicago, &o. Rid. v. Houston, 95 U. S. 697, 702. Such appears to be also the doctrine of reason ; yet, if the engineer knows that a particular place is fre- quented by trespassers, he has a sort of notice, upon which he may well be re- quired to act according to the special circumstances. Butler v. Milwaukee, &c. Ry. 28 Wis. 487 ; Davis «. Chicago, &c. Ey. 58 Wis. 646 ; Kay v. Pennsyl- vania Eld. 15 Smith, Pa. 269 ; Cas- sida V. Oregon Ey. &c. Co. 14 Oregon, 551 ; Western, &e. Eld. v. Meigs, 74 Ga. 857. s Terre Haute, &c. Eld. v. Graham, 46 Ind. 239 ; Freoh v. Philadelphia, &c. Eld. 39 Md. 574 ; Frazer v. South and North Alabama Eld. 81 Ala. 185 ; Maloy V. Wabash, &c. Ry. 84 Mo. 270 ; Savannah, &c. Ry. v. Stewart, 71 Ga. 427 ; Cential Trust Co. v. Wabash, &c. Ry. 26 Fed. Eep. 896 ; Finlayson v. Chicago, &c. Rid. 1 Dil. 579. CHAP. XLIII.] GOING ON AND CROSSING EAILROADS. § 1038 him to be deaf,^ or drunk,^ or otherwise specially in danger,^ or if the person is a child too young to appreciate the danger,* or if they neglect a reasonable warning,^ should they then keep on and inflict damage, the road will be answerable. It will be the same also if they wilfully, or by a negligence so extreme as to amount to wilfulness, injure the trespasser.^ But for injuries from mere ordinary negligence, the defence that they came to the complaining party in the course and in consequence of a trespass on the track will sufi&ce.'^ § 1038. Omitting Signal. — Though the failure to give a sig- nal required by the law or a rule of the road is negligence in its management,* not always, perhaps never in just doctrine, can a trespasser so avail himself of the omission as to charge the road.^ But some permit this, at least in special circum- stances.^" And all allow the non-negligent person who is not a trespasser, or even perhaps a mere technical trespasser, to found a liability upon the omission.^^ The authorities cited to these propositions are not absolutely distinct and conclusive, 1 International, &c. By. v. Smith, 62 Texas, 252. 2 St. Louis, &c. Ry. ■». WUkerson, 46 Ark. 513. 8 Freeh v. Philadelphia, &c. Rid. supia ; Cook v. Central Eld. &c. Co. 67 Ala. 533 ; Mobile, &c. Rid. u. Stroud, 64 Missis. 784. * Ante, § 586 ; Texas, &o. Ey. v. O'Donnell, 58 Texas, 27 ; Donahoe v, Wabash, &c. Ry. 83 Mo. 560. 6 Donahoe ii. Wabash, &c. Ry. 83 Mo. 543. * Terre Haute, &c. Rid. v. Graham, 46 Ind'. 239 ; Illinois Cent. Eld. v. God- frey, 71 111. 500. ' Grethen ■». Chicago, &o. Ry. 22 Fed. Rep. 609 ; Mynning v. Detroit, &c. Eld. 59 Mich. 257 ; Moore v. Philadel- phia, &c. Eld. 12 Out. Pa. 349 ; Chi- cago, &c. Eld. V. Olson, 12 Bradw. 245 ; Bresnahan v. Michigan Cent Eld. 49 Mich. 410 ; Hogan v. Chicago, &c. Ey. 69 Wis. 139 ; McClaren v, Indianapolis, &c. Eld. 83 Ind. 319 ; Tennenbrock v. South Pac. Coast Rid. 59 Cal. 269 ; Terre Haute, &c. Rid. v. Graham, 95 Ind. 286 ; Baltimore, &e. Rid. v. The State, 54 Md. 648 ; Nicholson v. Erie Ry. 41 K Y. 525 ; Malpy v. Wabash, &c. Ey. 84 Mo. 270 ; Louisville, &c. Eld. V. Howard, 82 Ky. 212 ; Western, &c. Rid. V. Bloomingdale, 74 Ga. 604 ; Illinois Cent. Rid. o. Hall, 72 111. 222 ; Mobile, &c. Rid. w. Stroud, 64 Missis. 784 ; Central Rid. v. Brinson, 70 Ga. 207. 8 Ante, § 1026. 9 Ante, § 132 ; Louisville, &e. Rid. V. Howard, 82 Ky. 212, 219 ; Ivens v. Cincinnati, &o. Ry. 103 Ind. 27 ; Harty ». Central Rid. 42 N. Y. 468 ; Balti- more, &o. Rid. V. Depew, 40 Ohio State, 121. 1' East Tennessee, &o. Rid. «. Hum- phreys, 12 Lea, 200 ; Georgia Rid. v. Williams, 74 Ga. 723. 11 Vicksburg, &c. Rid. v. McGowan, 62 Missis. 682 ; Curaraing v. Brooklyn City Rid. 38 Hun, 362 ; McWilliams w. Detroit Cent. Mills, 31 Mich. 274. 487 § 1042 LOCOMOTION OP PERSONS AND THINGS. [BOOK VI. and the like may be said of analogous cases to be here added in a note.^ In reason, rules requiring signals, prohibiting dan- gerously fast running, and the like, should be construed as intended to protect persons to whom the road owes a duty, not trespassers ; so that the former only can found rights upon them.2 II. Itightfully Crossing the Track. § 1039. Much Litigated. — The liability to injuries from crossing railroad tracks are very great, resulting in much liti- gation, and the reported cases are in number immense. The doctrine is plain ; namely, — § 1040. Doctrine defined. — Railroad companies, running their cars, and persons lawfully crossing their tracks, — as, at street crossings, — are under the mutual and equal duty to exercise' a care proportioned to the perils of the situation ; ^ and, for any damage coming to the individual solely from the road's want of care, he may have from it compensation. But, — § 1041. Contributory Negligence — If there is negligence on both sides, the one whose negligence contributed to the result whereof he complains, can have no redress, even though the road's negligence was greater, — the case being within the explanations of a preceding chapter.* Of course, — § 1042. Apparent Exceptions — Wilful. — The contributory negligence of the person injured is not a bar to his recovery 1 East Tennessee, &c. Rid. ». Swaney, cago, &o. Ey. 64 Wis. 1 ; Payne a. 5 Lea, 119 ; Bergman «. St. Louis, &c. Chicago, &c. Ry. 39 Iowa, 523 ; Orms- Ry. 88 Mo. 678 ; Crowley v. Barling- bee v. Boston, &e. Rid. 14 R. I. 102 ; ton, &c. Ry. 65 Iowa, 658. The State v. Maine Cent.Rld. 76 Maine, 2 And see Chicago, &c. Ry. v. Ei- 357 ; Flemming «. Western Pac. Eld. Dinger, 114 111. 79. 49 Cal. 253 ; Indiana, &e. Ey. v. 8 Leavenworth, &o. Eld. v. Eice, 10 Greene, 106 Ind. 279 ; PzoUa v. Michi- Kan. 426 ; Chicago, &e. Ey. v. Sweeney, gan Cent. Eld. 54 Mieh. 273 ; Thomp- 52 111. 325 ; Pennsylvania Co. v. Krick, son ». Flint, &o. Ey. 57 Mich. 300 ; 47 Ind. 368 ; Indiana, &e. Ey. v. Harris v. Minneapolis, &c, Ry. 33 Minn. Greene, 106 Ind. 279 ; Bower v. Chi- 459 ; International, &c. Ey. v. Graves, cago, &e. Ry. 61 Wis. 457 ; Toledo, &c. 59 Texas, 330 ; Wheelwright v. Boston, Ry. V. Miller, 76 111. 278 ; Thomas v. &". Eld. 135 Mass. 225 ; Cleveland, &c. Delaware, &o. Eld. 19 Blatch. 533. Ey. v. Elliott, 28 Ohio State, 340 ; * Ante, § 458-473 ; Williams v. Chi- Toledo, &c. Ry. y. Head, 62 111. 233. 488 CHAP. XLIII.] GOING ON AND CROSSING RAILROADS. § 1043 of damages in cases within the apparent exceptions to the general doctrine of contributory negligence,^ or where the injury was inflicted by the road wilfully, or with such extreme disregard of duty as to amount to design.^ § 1043. Preparing to Cross — (^Looking and Listening}. — To avoid the bar of contributory negligence, one approaching the track, about to cross it, must exert his faculties to discover whether or not there is danger.^ The common precaution is to look both ways and listen ; perhaps, where the view of the track is unobstructed and sufficiently wide, it satisfies the rule simply to look, otherwise and commonly one should also lis- ten.* It is not ordinarily essential to stop, or especially to get out of one's carriage and walk to the track ; ^ but, where the view is obstructed, and the caution must consist mainly in listening, it may be a duty to produce quiet by stopping,^ or the duty may be to walk to a place whence the track can be seen.^ Some appear to hold the obligation to stop, still 1 Ante, § 463-466, 471-473. 2 Ante, § 475, 1037 ; Tucker v. Dun- can, 4 Woods, 652 ; Louisville, &c. Ey. V. Bryan, 107 Ind. 51 ; Belt Eld. &c. Co. ■». Mann, 107 Ind. 89 ; Gothard u, Alabama Great So. Rid. 67 Ala. 114 ; Galena, '&c. Eld. d. Jacobs, 20 111. 478. " Chicago, &c. Ey. v. Gertsen, 15 Bradw. 614 ; Moms, &o. Eld. v. Has- lan, 4 Vroom, 147 ; Langhoff v. Mil- waukee, &c. Ey. 23 Wis. 43 ; Chicago, &c. Eld. V. Robinson, 9 Bradw. 89 ; ClevBland, &c. Ey. v. Elliott, 28 Ohio State, 340 ; Wabash, &c. Ey. v. Central Trust Co. 23 Fed. Eep. 738 ; Griffin v. Chicago, &c. Ry. 68 Iowa, 638. * Gorton v. Erie Ey. 45 N. Y. 660 ; Havens v. Erie Ey. 41 N. Y. 296; Baxter v. Troy, &c. Eld. 41 N. Y. 502 ; Ehoades v. Chicago, &o. Ey. 58 Mich. 263 ; Powell v. Missouri Pac. Ry. 76 Mo. 80 ; Bellefontaine Ey. v. Hunter, 33 Ind. 335 ; McGuire v. Hudson Eiver Eld. 2 Daly, 76 ; Schofield v. Chicago, &c. Eld. 2 McCrary, 268, 114 U. S. 615 ; Bronk v. New York, &c. Eld. 5 Daly, 454 ; Chicago, &c. Eld. . Kan. 655 ; Wabash Ey. v. Savage, 110 Dixon, 42 Ga. 327. Ind. 156. « Ante, § 845-854. * Ante, g 846, 847. And see Kline (.'. Central Pac. Eld. 37 Cal. 400. 494 CHAP. XLIII.J GOING ON AND CROSSING RAILROADS. § 1054 It is the ordinary doctrine of negligence, which was explained in a preceding chapter,^ applied to the special topic of this chapter. And this entire chapter consists only of particular applications of doctrines previously stated in this volume. Whence we have a hint of the broader truth, that the doc- trines of the law are comparatively few, while their applica- tions are multitudinous ; so that the only practical way to become a competent lawyer is to acquire the doctrines, and in connection with them, not the impossible remembrance of their infinite prior applications, but the skill to apply them to whatever facts may heres^ter arise. 1 Ante, § 433-484. 495 § 1057 LOCOMOTION OP PERSONS AND THINGS. [BOOK VI. CHAPTER XLIV. TRAVELLING BT BAIL. § 1055. lutrodactibn. 1056-1065. General Liabilities as Passenger Carriers. 1066-1071. Servants and Imputed Negligence. 1072-1084. Tickets and Bargainings about Fares. 1085-1109. Travel and its Eights and Obligations. 1110. Connecting Lines. 1111. Third Persons, &c. Injuring Passengers. 1112-1114. Sleeping and Palace Cars. 1115. Doctrine of Chapter restated. § 1055. How Chapter divided. — We shall consider, I. In General of the Liabilities of Railroads as Carriers of Passen- gers ; II. Servants and the Imputed Negligence of other Persons ; III. Tickets and the Bargainings about Fares ; IV. The Act of Travel and its Rights and Obligations ; V. Connecting Lines ; VI. Third Persons and Corporations Injuring Passengers ; VII. Sleeping and Palace Cars. I. In General of the Liability of Railroads as Carriers of Passengers. § 1056. Railroads — are, in addition to their other func- tions, common carriers of passengers.^ § 1057. Common Carrier. — The term " common carrier," used thus without qualification, ordinarily denotes a common carrier of goods, — one who for hire carries them, or a particu- lar class of them, for all persons indifferently .^ A common 1 Contra Costa, &c. Eld. v. Moss, 23 v. Brown, 3 Wend. 158, 161 ; Gisboum Cal. 323. w. Hurst, 1 Salk. 249 ; Garton ». Bris- " 2 Kent Com. 597,598; OrangeBank tol, &c. Ky. 1 Best & S. 112 ; Mershon 496 CHAP. XLIV.] TRAVELLING BY RAIL. § 1061 carrier of passengers is one who carries, or holds himself out as carrying, for hire, over a known or designated route, all persons applying.^ Whereupon, by operation of law, — § 1058. Under Duty. — The common carrier, whether of goods or passengers, occupies a position like that of " Persons assuming special skill," explained in a preceding chapter.^ He is under a duty defined and imposed by the law. So that, irrespective of any obligations of contract, which those injured may enforce or not at their election,^ there is upon him the law-created duty, a breach whereof is a species of deceit,* jus- tifying an action of tort in the form known at common law as case,® to all persons seeking his services, to do what is legally incumbent on a common carrier of the particular sort which he holds himself out as being.^ Thus, — § 1059. Provide Conveyance. — The carrier of passengers must be duly diligent to run his vehicles as promised to the public. So that a person going to the depot of a railroad to take an advertised train may, if without a valid excuse it does not send out the train,'' or does not cause a train to stop for passengers as advertised,^ recover of the road whatever dam- age he has suffered. But he cannot found a claim on an accidental delay of a train, proceeding from no lack of care- fulness or skill.^ So also, — §1060. Refusing Passage. — The refusing of a passage, to oi;e entitled to it, is an actionable wrong.^" And, — § 1061. "W^ho demand Passage. — In general terms, all per- sons seeking a passage are equally entitled to it, on conform- ing to such reasonable conditions as are imposed on all V. Hobensack, 2 Zab. 372 ; Fish v. State.n Island Rid. 58 N. Y. 126, 133, Chapman, 2 Kelly, 349 ; Samma ». 134 ; Saltonstall v. Stockton, Taney, Stewart, 20 Ohio, 69. 11 ; Lake Erie, &c. Ry. v. Acres, 108 1 Vcrner v. Sweitzer, 8 Casey, Pa. Ind. 548. 208 ; Bennett v. Button, 10 N. H. 481; ' Ante, § 329 ; Sarannah, &o. Eld. Hollister v. Nowlen, 19 Wend. 234, 239. v. Bonand, 58 Ga. 180. " Ante, § 697-717. ' Indianapolis, &o. Ry. v. Bimey, » Ante, § 72-74. 71 111. 391. * Ante, § 698. ' Gordon v. Manchester, &c. Rid. 52 « Ante, § 313. K. H. 596. • Bretherton v. Wood, 9 Price, 408, " Lake Erie, &o. Ry. v. Acres, 108 3 Brod. & B. 54, 62 ; Hollister v. Now- Ind. 548 ; Hollister v. Nowlen, 19 len, 19 Wend. 234, 239 ; CarroU v. Wend. 234, 239. 32 497 § 1063 LOCOMOTION OF PERSONS AND THINGS. [BOOK TI. applicants alike.^ The limits of this duty are probably not made quite definite by authority. Certainly a railroad could not be compelled to carry a person escaping from a lawful im- prisonment for crime; for such assistance, knowingly ren- dered, would be itself a crime.^ Nor would it be required to transport one having a contagious disease, liable to- be com- municated to other passengers ; for thus it would violate its duties to them, and there can be no conflict of duties.^ Nor yet is the road under a duty, or even permitted, to carry a passenger whose presence will endanger either the safety or the reasonable comfort of the other .passengers ; within which rule, drunkenness is not necessarily, but in the particular in- stance it may be, a disqualification in' the applicant.^ And the road may protect itself ; as, by refusing to carry one on a business directly injurious to its own.^ § 1062. Vehicle Full. — The proprietor of a stage coach can- not be made to pay damages for not taking a passenger after his vehicle is full, and his means of carriage are exhausted.^ But it is plainly the duty of our railroads to exercise foresight and anticipate emergencies, and a road could not often excuse itself on the ground that it had no more room in its cars.^ § 1063. Safety. — The familiar rules as to the responsibility for goods committed to a common carrier do not extend to passengers ; the carrier is not an insurer of their safety. His liability arises only out of his fault, or the want of care termed in the law negligence.' Now, — 1 Saltonstall e. Stockton, Taney, 11; ^ Thurston v. Union Pac. Eld. su- Day V. Owen, 6 Mich. 520 ; Chicago, , pra ; The D. R. Martin, 11 Blatoh. 233. &c. Ry. V. WiUiama, 55 111. 185 ; Ben- ' * Bennett v. Dutton, 10 N. H. 481, nett V. Button, 10 N. H. 481 ; Peck v. 486. Cooper, 112 111. 192 ; The State v. Del- ' See Tarhell v. Central Pat. Rid. 34 aware, &o. Rid. 19 Vroom, 55. Cal. 616. 2 2 Bishop Crim. Law, f 1065,1066, » Christie v. Griggs, 2 Camp. 79; Har- 1102 ; 1 lb. 5 693, 695 ; Thurston ». ris v. Costar, 1 Car. &P. 636; Ecadhead Union Pac. Rid. 4 Dil. 321. o. Midland Ey. Law Rep. 2 Q. B. 412, 4 » Ante, § 268, 269, 414. Q. B. 879 ; Aston v. Heaven, 2 Esp. * Putnam r. Broadway, &c Rid. 55 533 ; Kentucky Cent. Eld. w. Thomas, N. Y. 108 ; Milliman f . New York, fee. 79 ICy. 160 ; Crofts v. 'Waterhouse, 3 Rid. 66 N. Y. 642 ; Thurston v. Union Bing. 319, 11 Moore, 133 ; Sherlock «. Pac. Rid. supra ; Pittsburg, &c. Eld. Ailing, 44 Ind. 184 ; Brunswick) &c. V. Pillow, 26 Smith, Pa. 510. Eld. v. Gale, 56 Ga. 322 ; Gilson v. 498 CHAP. XLIV.] TRAVELLING BY BAIL. § 1065 § 1064. Degree of Care. — We have seen, in previous con- nections, that the care which will exclude the negligence of. the law must increase with the magnitude of the interest and with the danger.i And there is no interest so high as human welfare and especially human life.^ So that, before, railroads came, the coach-proprietor was said to be " answerable for the smallest negligence " in the driver; as^ where he drove " with reins so loose that he could not readily command his horses." ^ A coach drawn by a steam engine is a more powerful, there* fore presumptively a more dangerous, vehicle than one drawn by horses, and more dangerous in some circumstances than in others; and the care should be proportioned to the. danger,* arising to the highest possible.^ Only in such general terms can the different degrees of care be distinguished. The low- est, to be adequate, must be very high ; and the usual defining scarcely leaves space for a higher. It is, that the common carrier of passengers must exercise the utmost care and fore- sight, sometimes expressed to be extraordinary care, some- times the highest diligence, to carry them safely, and the slightest neglect will charge him.® Ordinary diligence will not suffice.^ And, — § 1065. Presumption. — Within explanations in a preceding chapter,* an injury to the passenger not in fault is commonly Jackson County Horse Ry. 76 Mo. 282 ; £c. Eld. 11 Minn. 296 ; Maury «. Tal- Meier v. Pennsylvania Kid. 14 Smith, madge, 2 McLean, 157 ; Wheaton v. Pa. 225. North Beach, &c. Eld. 36 Cal. 590 ; 1 Ante, § 438-441, 645, 646, 840, Hall v. Connecticut Eiver Steamb. Co. 843, 1013, 1023. 13 Conn. 319 ; Derwort b. Loomer, 21 2 Sandham v. Chicago, &c. Rid. 38 Conn. 245 ; Edwards v. Lord, 49 Maine, Iowa, 88. 279 ; Frinkti. Potter, 17 111. 406. "As * Aston V. Heaven, 2 Esp. 533, 535. far as human care and foresight: will go, * Klein v. Jewett, 11 C. E. Green, that is, to the utmost care and diligence 474. of Very cautious persons." Mavericks. s Baltimore, &c. Eld. v. Wightman, Eighth Avenue Rid. 36 N. Y. 378, 381 ; 29 Grat. 431. Deyo v. New York Cent. Eld. 34 N. Y. ° Indianapolis, &e. Rid. v. Horst, 93 9 ; Bowen v. New York Cent. Bid. 18 XJ. S. 291 ; Brunswick, &c. Eld. v. Gale, N. Y. 408 ; Illinois Cent. Rid. v. Phil- 56 Ga. 322 ; The Oriflamme, 3 Saw. lips, 55 111. 194. 397 ; Central Rid. v. Freeman, 75 Ga. ' Moore v. Des Moines, &c. Ry. 69 331 ; Gilson v. Jackson County Horse Iowa, 491. By. 76 Mo. 282 ; Taylor w. Grand Trnnk ' Ante, § 448 ; post, § 1133. Ry. 48 N. H. 304 ; Johnson v. Winona, 499 § 1068 LOCOMOTION OP PERSONS AND THINGS. [BOOK TI. presumed, prima fade, to have been caused by the carrier's negligence. But the latter may rebut this presumption by proofs.^ II. Servants and the Imputed Negligence of other Persons. § 1066. Already, — in preceding chapters, while considering the liabilities of the master to third persons for the acts of bis servants,^ and the capacity of corporations to commit torts through servants,^ we have had a view of the doctrines which govern this sub-title. Thus, — § 1067. Servant's Acts the Road's. — Whenever the servants of the road, or persons conducting as such with its apparent au- thorization,* perform any act within the real or apparent scope of their service, whether a proper and careful act, or a negli- gent, malicious, or otherwise wrongful one,^ the road — that is, the railroad corporation — is responsible for it as its own, whether in fact it had conferred on them the authority or not.' To illustrate, — § 1068. Protection to Passengers — HI Treatment by Ser- vants. — The road owes to its passengers care and protection.'' Therefore, though it may have committed the discharge of this duty specially to particular servants, or may have omitted to instruct any in it, to outward observation it devolves on the conductor of a passenger train actively to enforce it,* and on all the rest who co-operate in the running of the train to assist him therein,' and to abstain from violating it them- selves. So that, if the conductor employs excessive force in 1 Pittsburg, &c. Eld. v. Pillow, 26 ' Ante, § 609-616 ; Bayley v. Man- Smith, Pa. 510 ; Hipsley v. Kansas Chester, &c. Ey. Law Eep. 7 C. P. 415, City, &c. Eld. 88 Mo. 348 ; Balti- 8 C. P. 148. more, &c. Eld. v. Wightman, 29 Grat. ' Sherley v. Billings, 8 Bush, 147 j 431. Union Ey. &c. Co. ■». Kallaher, 114 111. 2 Ante, § 599-621. 325 ; Pendleton v. Kinsley, 3 Clif. 416 ; » Ante, § 719-737. Patterson v. Wahash, &c.'Ey. 54 Mich. * Ante, § 600. 91 ; Chicago, &c Eld. v. Flexman, 9 » Ante, § 721-734 ; Goddard v. Bradw. 250, 103 111. 546. Grand Trunk Ry. 57 Maine, 202 ; Lou- ' Flanneiy v. Baltimore, &c. Eld. 4 isville, &c. Eld. v. 'Whitman, 79 Ala. Mackey, 111. 328 ; Craker o. Chicago, &c. Ey. 36 " Sherley v. Billings, supra. Wis. 657. 500 CHAP. XLIV.] TRAVELLING BY BAIL. § 1069 ejecting a passenger,^ or ejects him wrongfully ,2 or assaults him,3 or attempts improper familiarities with a female pas- senger,* — or if a brakeman or other inferior servant assaults a passenger with or without provocation,^ or wrongfully ejects him,^ — or if a station agent puts out a trespasser from the station-house with unjustifiable violence,^ — the road is re- sponsible without any special showing of authority from it to its servant. Even though the servant in doing the act vio- lated its express command, its liability is the same.^ On the other hand, since the conductor's duty to a passenger at the end of his route is discharged by stopping the train and an- nouncing the station, the road has been held not answerable if, having promised to wake him, he neglects to do it, and car- ries him beyond his destination.® This decision is in line witli some others ; ^^ but as it is plainly the conductor's func- tion to regulate the exit of passengers, it would seem in rea- son, as between a passenger and the road, competent for him to bind the road by this sort of special arrangement.^^ § 1069. Servant's Contributory Negligence. — Whether the master is liable or not for the contributory negligence of a servant acting in his absence independently,^^ there can be no doubt of the liability of one who is present with the servant 1 Chicago, &c. Ey. v. Barrett, 16 ' Ante, § 610 ; Philadelphia, &c. Bradw. 17 ; Chicago, &c. Eld. v. ^ills, Eld. v. Derby, 14 How. U. S. 468. 104 Ind. 13. " Nunn v. Georgia Kid. 71 Ga. 710. 2 Travers v. Kansas Pac. Ky. 63 Mo. i" For example, ante, § 613. 421 ; Townsend v. New York Cent. &c. " And compare with Bellman v. New Eld. 56 N. Y. 295. York Cent. &c. Eld. 42 Hun, 130, 134, * Randolph v. Hannibal, &e. Ey. 135 ; Shannon w. Boston, &c. Eld. 78 18 Mo. Ap. 609 ; Kamsden v. Boston, .Maine, 52. In Marshall v. St. Louis, &o. Eld. 104 Mass. 117. &c. Ey. 78 Mo. 610, 616, 617, Hough, * Craker «. Chicago, &c. Ey. 36 Wis. C. J. observes : "When any servant of 657 ; Nieto v. Clark, 1 Clif. 145. a railroad company, having the requi- 6 Goddard V. Grand Trunk Ey. 57 site authority, misdirects a passenger Maine, 202 ; Chicago, &c. Eld. v. Flex- to his injury, the company should be man, 9 Bradw. 250, 103 111. 546 ; Stew- responsible therefor." And see post, art V. Brooklyn, &c. Eld. 90 N. Y. 588 ; § 1089. Within this doctrine, the con- Hoffman V. New York Cent. &c. Eld. 87 ductor of a night train is surely N. Y. 25. authorized to instruct a passenger wheth- 6 Peck V. New York, &a. Eld. 8 er or not he must be awake, without Hun 286. help from the road, when he reaches the 7 Johnson v. Chicago, &c. Ey. 58 end of his journey. Iowa, 348. *= Ante, § 631-634. 501 § 1070 LOCOMOTION OP PERSONS AND THINGS. [BOOK VI. controlliug him. Illustrations of this doctrine do not often arise in railroad travelling ; but, in private travelling, if a ser- vant drives his master carelessly, and an injury results from a third person's negligence combining with the servant's, the master will evidently be without remedy against the third person.^ Even, — § 1070; Wot Servant — Imputed Contribntoiy Negligence. — There is a doctrine, maintained in some of the English cases,* and followed in a few American ones, to the effect that a pas- senger j as well in a public coach as in a private, having no control over the driver, will be barred Of his action for inju- ries proceeding from the negligence of a third person, if the driver's negligence contributed thereto ; it being imputed to him, or, as otherwise expressed, he being " identified with the carriage." We have seen that the principle of imputing to an infant the contributory negligence of the adult having the care of him is in reason and by the better authorities un- sound.* A fortiori, this making an adult person answerable for the negligence of a driver whom he did not select, and over whom he has no particle of control, has no relation to the ordinary justice of the law ; and, though it is followed in some of our courts, it is i:epudiated by most.* The absurdily . 1 I believe this undisputedj but it "Wi-s. 296 ; Prideaux ii» Mineral Point, has not been much litigated directly. 43 "Wis. 513 ; Kobinsou v. New York See cases next section. If one in a car- Cent. &c. Eld. 66 N. Y. 11 ; New York, riage joins, the driver in negligence, it &e. Rid. v. Steinbrenner, 18 Vroom, 161 will bar both. Crescent v. Anderson, (wherein, at,p. 166, Depue, J. observes; 4 Am. Pa. 643. " Thorogood ». Bryan has been directly ^ The leading English case is Thoro- repudiated in the English court of ad- good V. Bryan, 8 C. B. 115, 130. Over- miralty. The Milan, Lush. 388 ; Char- ruled in Mills V. Armstrong, 13 Ap. C-as. tered Mercantile Bank v. .Netherlands 1, following Little v. Hackett, infra. &c. Nav. Co. 9 Q. B. D. 118, 10 Q. B. » Ante, § 681-583. D. 521, 545, and is generally cited in * The case of Little v. Hackett, ,116 the common-law courts.simply as a case U. S. 366, rejecting the doctrine, and that has not been overruled ") ; Payne holding .that the hirer of a public hack, v. Chicago, &c. Ry. 39 Iowa, 523 ; Al- .who exercises no control over the driver, bion v. Hetrick, 90 Ind. 545 ; Lake is not barred by the latter's contrib- Shore, &c. Rid. v. Miller, 25 Mich. 274 ; utory, iie.gligen'ce, is particularly full Masterson v. New York Cent. &c. Rid. 84 and instructive. It largely collects the N. Y. 247 ; Metcalf ©.Baker, li Abb. tathorities. I shall not render the Pr. n. S.-431 ; St. Clair Street; Ry. v. reader any service by classifying them, Eadie, 43 Ohio State, SI ; Bennett ». so I simply add Houfe v. Fulton, 29 New Jersey Rid. &o. Co. 7 Vrbom, 225 ; 502 CHAP. XLIV.] TRAVELLING BT RAIL. § 1072 of this unjust doctrine would glaringly appear if applied to — § 1071. steam and Horse Railroads. — It has been uniformly held that the contributory negligence of the servants running a steam or horse railroad is not to be imputed to a passenger, so as to deprive him of redress for an injury inflicted by a third party .1 To admit such a defence, while it would carry the mutual responsibilities of men for one another's sins and weaknesses to the point of making plain the antagonism of the principle to the fundamental right of the common law, would be simply a particular application of the minority doc- trine of the last section. in. Tickets and other Bargainings about Fares. § 1072. Rules and Usages — '(By-lavrs — Contracting). — One carrying on any business may regulate it by rules and usages ; but they must be reasonable, and not violative of the law or of public policy. Thereupon another who, knowing them, contracts with him, will be presumed to have them in contemplation, so will be bound by them.^ This doctrine is fully applicable to railroad corporations.* Another power, which more or less blends with this, and is limited in the same way, is that of making by-laws, inherent in business cor- porations similarly to municipal.^ These powers, and the Webster v. Hudson Tliver Eld. 38 N. Y. " Bishop Con. § 458, and the aocom- 260 ; Follmati v. Mankato, 35 MinU. panying elucidations. 522 ; Philadelphia, &c. Kid. i-. Hoge- ' Ante, § 719, 736 ; Chicago, &c. land, 66 Md. 149 ; Carlisle v. Brisbane, Ry. v. People, 56 111. 365 ; Coramon- 3 Am. Pa. 544 ; Cleveland, &c. Eld. v. wealth v. Power, 7 Met. 596 ; Dietrich Manson, 30 Ohio State, 451 ; Crescent v. Pennsylvania Eld. 21 Smith, Pa. 432 ; V. Anderson, 4 Am. Pa. 643. Bass v. Chicago, &o. Ry. 36 Wis. 450 ; 1 Chapman v. New Haven Rid. 19 De Lucas v. New Orleans, &c. Eld. 38 N. y. 341 ; McCallum v. Long Island La. An. 930 ; Crawford v. Cincinnati, &c. Eld. 38 Hun, 569 ; Louisville, &c. Eld. Rid. 26 Ohio State, 580 ; Chicago, &c. V. Case, 9 Bush, 728 ; Tompkins v. Ey. v. Williams, 55 111. 185 ; Brown- Clay Street Eld. 66 Cal. 163 ; Cray v. ing i'. Long Island Eld. 2 Daly, 117. Philadelphia, &o. Eld. 23 Blatch. 263 ; * 2 Kent Com. 277, 278 ; Norris v. Union Ey.' &e. Co. v. Shacklett, 19 Staps, Hob. 210 6, 211 a ; The State i). Bradw. 145 ; Wabash, &c. Ey. v. Shack- Tudor, 5 Day, 329 ; Hastings v. Blue let, 105 111. 364 ; /Bennett ». New Jersey Hill Tump. 9 Pick. 80. Eld. &c. Co. 7 Vroom, 225. 503 § 1074 LOCOMOTION OF PERSONS AND THINGS. [BOOK VI. restrictions upon them, are sometimes varied or made more distinct by statutes. A rule, to become an element in one's contract with the road, must be actually or presumptively known by him.^ And, — § 1073. other Contracting. — In the carriage of passengers, railroads contract with them, and upon the same principles which govern other contracts. One of which principles, often invoked, is, that all agreements between parties to do a thing prohibited by law, or subversive of any public interest which the law cherishes, are void.^ Thus, — § 1074. Responsibility for Negligence — Contract Limiting. — It is the duty of men, whether individual or corporate, as we have many times had occasion to consider, to manage their own affairs carefully and circumspectly for the avoidance of injury to others ; and a neglect of this duty, resulting in harm to any person, places them under an obligation from the law to compensate him. This is one of the most important of the fundamental doctrines of non-contract right and wrong. It is a clear and unmutilated excerpt from natural justice itself, handed down by God, and requiring no manipulations by man to adapt it to human use. In almost every chapter of this volume, we have seen its beneficent workings. If it has not found a place among the limitations of legislative power in our written constitutions, the reason is, not its unworthiness, but the confidence of their makers that no legislator or judge will be so unmindful of the proper functions of his office as to disregard it. Such, therefore, is both the policy of the law and the law itself, in the highest sense fundamental and un- yielding. The result of which is, that, in just legal reason, it will under no circumstances be competent for a railroad or • other common carrier, whether of goods or passengers, to cast off this responsibility by any resort to a by-law, to a usage, or even to an express contract with the party. Particularly in the carriage of passengers, if the road could by contract ' Bishop Con. § 451, 458 ; Maroney &c. Rid. 57 N. Y. 882 ; Lake Shore, V. Old Colony, &c. Ey. 106 Mass. 153 ; &c. Ey. v. Eosenzweig, 3 Am. Pa. 519. Lake Shore, &o. Ey. v. Greenwood, 29 * Bishop Con. § 470. Smith, Pa. 373 ; Eaton v. Delaware^ 504 CHAP. XLIV.J TRAVELLING BY BAIL. § 1076 exempt itself from responsibility for its own negligence, its next step would be to refuse all passengers who would not enter into the contract ; thereupon the railroad corporations, freed .from the only motive to carefulness which they could appreciate, the danger of being mulcted in damages, would conduct their business with a recklessness rendering travel a horror to every person not permitted to remain at home. Looking now to the adjudications, — § 1075. As to Goods. — It is almost universally held that no common carrier of goods can, by any bargaining with their owner, become free from responsibility for the negligence of himself and his servants in their carriage.^ But there are courts in which this doctrine is not admitted, or not adhered to with the strictness which the principles above stated re- quire.^ A fortiori, — § 1076. As to Passengers. — Ordinarily the courts refuse to give effect to any stipulation between the road and a passen- ger relieving it from liability to him for the negligence of itself or servants.* For example, where a drover accepted a ticket indorsed with the following words, which he signed, — " In consideration of receiving this ticket, I voluntarily as- sume all risk of accidents ; and expressly agree that the com- pany shall not be liable, under any circumstances, whether by negligence of their agents, or otherwise, for any injury to my person, or for any loss or injury to my property ; and I agree that as for me, in the use of this ticket, I will not consider the company as common carriers, or liable to me as such," — the indorsement was held to be void, and the road responsible to 1 New York Cent. Rid. v. Loukwood, 31 Ind. 394 ; Michigan, &c. Rid. v. 17 Wal. 357 ; Shriver v. Sioux City, Heaton, 31 Ind. 397, note. As to the &o. Rid. 24 Minn. 506 ; Berry v. Cooper, English law, see Peek v. North Stafford- 28 6a. 543 ; Evansville, &c. Rid. ■». shire Ey. 10 H. L. Gas. 473, 9 Jur. Young, 28 Ind. 516 ; Ashmore v. Penn- N. s. 914. sylvania, he. Co. 4 Dutcher, 180 ; Penn- ^ Mynard v. Syracuse, &c. Eld. 71 sylvania Eld. v. McCloskey, 11 Harris, K. Y. 180 ; Baltimore, &c. Eld. v. Eath- Pa. 526 ; Famham v. Camden, &c. Eld. bone, 1 W. Va. 87 ; Canfield v. Balti- 5 Smith, Pa. 53 ; American Express v. more, &c. Rid. 93 N. Y. 532. Sands, 5 Smith, Pa. 140 ; Pennsylvania ' New York Cent. Eld. v. Lockwood, Eld. V. Butler, 7 Smith, Pa. 335 ; 17 Wal. 357, and the numerous cases Southern Express v. Moon, 39 Missis, reviewed and cited in the opinion ; Eose 822 ; Indianapolis, &c. Rid. v. Allen, f. Des Moines Valley Eld. 39 Iowa, 246. 505 § 1077 LOCOMOTION OP PERSONS AND THINGS. [BOOK VI. him for an injury suffered through its negligence.^ There are a few cases which reject this doctrine,^ or reject it in its unqualified form; therefore in some circumstances permitting the road to relieve itself by contract.^ An examination of these cases will disclose, that a gratuitous carriage;^ or one at a reduced rate,Ms by some deemed a foundation for giving effect to this sort of special bargain. But in preceding chap- ters we saw that the distinction between the liability and non- liability of. one for accidents through his negligence to persons coming on his premises depends upon whether they are there rightfully or as trespassers ; if the former, he is answerable ; if the latter, he is not.^ Therefore, since the law is a system of reasoning, and it cannot contradict itself, the distinction as to the passenger carrier's exemption by agreement, thus pro- pounded, has no place in our legal system ; yet, instead of it, the true : doctrine is, that while the road cannot cast off its obligations to one whom it permits to ride in its cars, it owes no duty to a trespasser, and no bargaining is required .to, relieve it from damages for accidents to him through its negligence. § 1077. Tickets. — A railroad ticket is an informal memo- randum^ contract, largely interpreted by usage ^ and rules of the roady* sometimes supplemented by written words ; and, 1 Ohio, &B. Hy. ». Selby, 47 Ind. protection to the road from liability .471. The contrary was taken for granted for gross negligence. "Having under- in MoCawley v. Furness Ry. Law Eep. taken to carry, the duty aiises to carry 8 Q. B. 57. safely." Berry, J. at p. 128. Contra, 2 Seybolt v. New York, &c. Eld. 95 Griswold w. New York, &o. Eld. 63 N. Y. 562, 573. "The doctrine is set- Conn. 371. tied in this coui-t that railroad companies ' Bissell o. New York Cent. Eld. 25 may, . by contract, exempt themselves N. Y. 442. from liability on account of the neglii- * Ante, § 845, 848, 849, 851-854, gence of their servants, other than that 876, 927, 1036, 1040, 1048. which is gross and wilful." Arnold '' Bishop Con. § 168, 1242 ; Elmote V. Illinois Cent. Eld. 83 111. 273. . v. Sands, 54 N. Y. 512. ' Kinney v. Central Eld. 5 Vroom, ' Bishop Con. § 378, 449. 513 ; and cases cited in New York Cent. ' Ante; § 1072 ; Dietrich v. Penn- Eld. V. Lookwood, 17 Wal. 357. sylvania Eld. 21 Smith, Pa. 432 j * Grand Trunk Ey. v. Stevens, 95 Maples v. New York, &c. Eld. 38 Conn. U. S. 655, 660. Jacobus v. St. Paul, 557 ; Lake Shore, &c. Ry. «. Eo- &c. Ey. 20 Minn. 125; holds the agree- senzweig, 3 Am, Pa. 519. ment in a gi-atuitous carriage to be no 606 CHAP. XLIV.] TRAVELLING BY RAIL. §1078 when not supplemented so,, commonly admitting of being ex- 'tended,^ yet not contradicted, by oral ones.^ In the absence :o£ terms rendering it non-assignable,' it passes from hand to hand by delivery. It is deemed in law, as it is in fact, a thing of value ; forgery * or larceny *. may be committed of it, it is a chattel,^ and it may be the subject of a. criminal false pre- tence.^ These general propositions do not admit of reduc- tion to forms greatly more distinct; but something will be attempted, thus, — § 1078. Right to ride on Ticket. — The road is responsible whenever a conductor, yliether by mistake or design, with- holds from a ticket-holder the ride which the ticket prom- ises ;. as, where he accidentally punches the wrong coupon and a second conductor refuses to honor it,^ or takes up the. ticket and a second conductor puts off the passenger as being with- out a ticket,® and other cases within the like principle;^" A freight train,, for further example, was accustomed to take passengei's to a particular station, to which there was no other • Pittsburgh, &o. By. v. Nuzum, 50 Ind. 141. 2 Bishop Con. § 164, 167, 172. In Howard v. Chicago, &c. Rid. 61 Missis. 194, it was held, that the teims of an excursion ticket "good on train and date stamped on back hereof " could not be varied by the advertisement of the excursion, to entitle the holder to re- turn on a later day. Said Campbell, C. J. p. 198,' — "When a ticket does not purport to be a complete agreement between the canier and the passenger, suppletory evidence is admissible to show that there was a further contract than is indicated by the ticket ; but when it sets out the terms of a special contract, it is to be looked to as the evi- dence of the contract and is conclusive as to its terms." The ticlcet in contro- versy was deemed to be of the latter sort. But obviously, within distinctions to be stated in the next section, the conductor must be permitted to rely on the prop- erly interpreted terms of. any ticket. A ticket supplemented by a passenger's interpretation, drawn from sources not known to the conductor, would be too uncertain for practical use. At the same time, the corporation would be holden by the "further contract" thus spoken of by the learned judge. 3 Post V. Chicago, &c. Eld. 14 Neb. 110 ; Chicago, &c. Ky. i). Bannerman, 15 Bradw. 100. * 2 Bishop Crim. Law, § 546. 6 lb. § 841 a. s Bishop Stat. Crimes, § 344. ' 2 Bishop Crim. Law, § 477, note ; Eeg. V. Boulton, 1 Den. C. C. 608, 2 Car. & K. 917. » Philadelphia, &c. Eld. v. Eice, 64 Md. 63. " Pittsburg, &c. Ey. v. Hennigh, 39 Ind. 509; Townsend v. New York, &c. Eld. 6 Thomp. & C, 495, 4 Hun, 217 ; Palmer v. Charlotte, &c. Eld. 3 S. C. 580. 10 Lake Erie, &o. Ey. v, Fix, 88 Ind. 381 ; Hufford v. Grand Eapids,. &c. !By. 63 Mich. 118 ; Toledo,- &e-. Ey. v. Mc- Donough, S3 Ind. 289. See post, § 1096. 607 § 1079 LOCOMOTION OP PERSONS AND THINGS, [BOOK VI. mode of conveyance. One bought a ticket to this station, but before the train started was told by the conductor that it would not stop there ; yet, relying on his ticket, he boarded the train and was carried to the next station beyond. The road was compelled to pay him damages.^ On the other hand, the passenger, as between himself and the conductor or the road, with respect to the right of riding on the ticket, can claim nothing beyond what it in terms grants ; ^ thus, where a man bought a non-transferable ticket for his wife, and it was made out with the name prefixed by Mr., instead of Mrs., and the conductor refusing to honor it put her off the train, the road was held not to be responsible,* while yet it is plain that the purchaser did not lose his money, but the road could be compelled in some form to rectify the mistake. And where, by the carelessness of the ticket agent, a passenger receives a ticket which after he has started he discovers to be to a station short of the one to which he paid, he cannot have damages of the road if the conductor refuses to carry him through ; his remedy being to pay the extra fare, then reclaim it of the company.* These distinctions result from the obvi- ous fact that our railroads could never carry on their business safely or properly if the conductors of the trains were com- pellable to alter the terms of tickets to accord with the state- ments of stranger passengers. This will further appear from some — § 1079. other Illustrations. — One bought of a railroad company a ticket which did not limit him to any particular train. But, unknown to him,^ the company had a rule exclud- ing passengers who held this sort of ticket from certain of its trains. Taking one of the latter, he was put off by the con- ductor, and the court subjected the road to damages.® The 1 Chicago, &o. Rid. v. Fisher, 66 111. « Frederick w. Marquette, &c. Rid. 152. See Fink ». Albany, &o. Eld. 4 supra. Similar are Bradshaw v. South Lans. 147. Boston Eld. 135 Mass. 407, and Chi- 2 Frederick v. Marquette, &c. Rid. cago, &c. Rid. u. Griffin, 68 111. 499. 37 Mich. 342. Compare with Burhham 6 Ante, § 1072. V. Grand Trunk Ey. 63 Maine, 298. • Maroney v. Old Colony, &c. By. ' Chicago, &o. Ey. v. Bannerman, 106 Mass. 153. 15 Bradw. 100. 608 CHAP. XLIV.] TRAVELLING BY RAIL. § 1080 unexplained ticket gave him the right to ride on the train he took, he had bought it without the explanation ; and, though the conductor did his duty to his employer, the employer violated its obligation to the passenger. The agent of a road sold to a passenger a punched ticket, assuring him it was good ; on its face it was good, but by a rule of the corporation the hole in it took away its validity. The conductor expelled him from the cars, and the corporation was held to be liable. If this ticket had been invalid on its face, the result would have been otherwise.^ One bought a thousand miles ticket. Unknown and without notice to hini, there was on the back of it a condi- tion, which he was to sign, exempting the road from respon- sibility for injuries which he might suffer from its negligence ; and there was a direction to the conductors not to honor the ticket unless he signed the condition. But it was several times honored. Then a conductor, requesting him to sign it, on his refusal expelled him from the cars. The court sub- jected the road to damages on the ground that it had waived the condition, and the unsigned ticket was good.^ Leaving now these illustrations, — § 1080. Hule requiring Ticket. — It is competent for the road, in the orderly conduct of its business, and to protect itself from imposition, to require passengers to purchase tick- ets before taking their seats in its cars.* And they may en- force this rule by the further provision that, on non-compliance, they shall pay in the cars a larger fare ; * or even, by the still severer one, if duly made known to a passenger,^ that he shall be expelled though he tenders whatever fare to the conductor.^ 1 Murdock ». Boston, &c. Eld. 137 Maine, 279 ; Cincinnati, &c. Eld. ». Mass. 293. Skillman, 39 Ohio State, 444 ; ludian- 2 Kent V. Baltimore, &o. Rid. 45 apolis, &c. Ey. li. Einard, 46 Ind. Ohio State, 284. And see Elliott v. 293. Western, &c. Eld. 58 Ga. 454. » Ante, § 1072. * Pullman Palace Car Co. v. Eeed, ° Lane v. East Tennessee, &c. Eld. 75 111. 125 ; Frederick v. Marquette, 5 Lea, 124 ; Illinois Cent. Eld. ii. Nel- .&o. Eld. 37 Mich. 342; Elmore v. son, 59 111. 110 ; Jones !). Wabash, &c. Sands, 54 N. Y. 512 ; Toledo, &c. Eld. Ey. 17 Mo. Ap. 158 ; Indianapolis, &c. V. Patterson, 63 111. 304. See Avey v. Eld. v. Kennedy, 77 Ind. 507 ; Lake Atchison, &c. Eld. 11 Kan. 448. Shore, &c. Ey. v. Greenwood, 29 'Smith, 1 Swan V. Manchester, &c. Eld. 132 Pa. 373 ; Falkner v. Ohio, &c. Ey. 55 Mass. 116 ; The State v. Goold, 53 Ind. 369. 509 § 1081 LOCOMOTION OP PERSONS AND THINGS. [BOOK VI. But, as the passenger has the absolute right to be caTried,^ a provision of this sort will be reasonable and justj^ — in other words, valid and binding on the passenger, — only if due op- portunity is given him for the purchase of the ticket ; other- wise, he is entitled to make payment to the conductor in the cars at the lowest , rate.* A due opportunity would seem to require the ticket office to be open seasonably before and down to the time when the train leaves ; for, at the starting of a train from the depot, if there is room in it, any fit person who will pay the fare is entitled to a passage.* Still it has been ad- judged, perhaps correctly as applied to the facts of most cases,^ that the ticket office need be open only to the advertised time for starting,® — a doctrine which deprives the traveller of the' right to ride in belated cars. We have some statutes which pTOvide that the office shall be open to the time of the train's actual departing.^ And, aside from the statutes, there may be some judicial differences on this general question.*. § 1081. 'What Train. — It is matter of universal knowledge that not all freight trains carry passengers, and that pas- senger trains do not all stop at every station. The road ad- vertises the times and stopping-places of its several trains ; of which, it has been said, the passenger should inform himself.^ And this is believed to be the just and commonly acce'pted ' Ante, § 1060. pany's depot, or be deprived of the law- ^ Ante, § 1072. given privilege of. being carried in its s Forsee v. Alabama Great So. Rid. train ? 63 Missis. 66 ; White v. Chesapeake, ° Swan v. Manchester, &c. Eld. 132 &c. Ey. 26 W. Va. 800 ; St Louis, &c. Mass. 116, 118, 119 ; St. Louis, && Rid. V. Dalby, 19 111. 353 ; Chicago, Eld. v. South, 43 111. 176. &c. Rid. V. Flagg, 43 111. 364 ; Du ' Missouri Pac. Ey. ti. McClanahan, Lauraus v. St. Paul, &c. Rid. 15 Minn. 66 Texas, 530 ; Nellis v. New York 49 ; St. Louis, &c. Ey, t>. Myrtle, 51 Cent. Rid. 30 N. Y. 505 ; Everett v. Ind. 566 ; Illinois Cent. Eld. v. John- Chieago, &c. Ey. 69 Iowa, 15. son, 67 111. 312 ; Jeffersonville Eld. v. * Crocker v. New London, &c. Eld. Rogers, 38 Ind. 116. It is the same 24 Conn. 249. where the road has wrongfully refused * Lake Shore, &c. Ry. v. Rosenzweig, to sell the passenger a ticket; Indian- 3 Am. Pa. 519; Ohio, &c. Ry. v. Ap- apolis, &c. Ry. v. Rinard, 46 Ind. 293. plewhite, 52 Ind. 540 ; Duling v. Phil- * Ante, § 1060-1062. adelphia, &e. Rid. 66 Md. 120. Com- * How if a train is habitually late, pare with ante, § 1079 ; Maroney v. Old and the traveller knows it ? Must he Colony, &e. Ry. 106 Mass. 153. throw away a few houra at the com- 610 CHAP. XUV.] TEAVELLTNG BY RAIL. § 1082 doctrine as applied to cases . in which the road lias given due notice, and fully done its duty in the arranging of its trains, and in the directing of passengers to them.^ So that, for ex- ample, if one without excuse for mistaking takes passage in a train which does not stop at the station indicated by his ticket, he can have no redress when compelled by the conductor to pay the additional, fare to the next station beyond.^ Yet if the agents of the road direct him to a wrong train, though the conductor will be justified in following the ticket,^ the road will be liable, on the ground of this misdirection, if it carries him beyond his destinat^n.* Sometimes, passengers, by con- sent of the road, are carried on its freight trains; as to which, no special explanations are necessary.^ §1082. stopping over. — One owing another anything is entitled, if he chooses, to pay all at once ; he cannot be required to discharge the obligation in parcels.^ On which principle, a railroad that has sold a ticket to a station named, silent as to stopping over, cannot be compelled to carry the passenger otherwise than on one continuous train.'^ And if, without per- mission, the passenger leaves the train short of his destina- tion, he cannot resume the journey on another, relying upon his ticket.* Still, if he attempts it, the conductor cannot both refuse him and take up his ticket ; and, if he offers to pay his passage on retaining his ticket, yet the conductor takes and ^ Plott V. Chicago, &e. Ey. 6a Wis. pra ; Dunlap v. Northern Pao. Bid. 35 511. Minn. 203 ; Waterbnry v. New York '^ TrotUnger v. East Tennessee, &c. Cent. &c. Eld. 17 Fed. Sep. 671 ; Perkins Eld. 11 Lea, 533 ; Logan ». Hannibal, v. Chicago, &c. Eld. 60 Missis. 726 ; &c. Eld. 77 Mo. 663. Eaton v. Delaware, &c. Eld. 57 N. Y. s Ante, § 1078, 1079. 382. * Marshall v. St. Louis, &e. Ey. 78 » Bishop Con. § 1194. Mo. 610. And see Ohio, &e. Ey. v. Ap- ' Churchill v. Chicago, &o. Eld. 67 plewhite, supra ; Pittsbrirgh, &c. Ey. v. 111. 390 ; Oil Creek, &c. Ey. v. Clark, Nuzura, 50 Ind. 141 j South and North 22 Smith, Pa. 231 ; Wyman v. North- Alabama Eld. !>. HufMan, 76 Ala. 492; em Pao. Eld. 34 Minn. 210 ; Denny o. Inteniational, &c. Ey. v. Hassell, 62 New York Cent. &c. Eld. 5 Daly, 50. Texas, 236. 8 jQi-ew v. Central Pac. Eld. 51 Cal. 6 St. Lonia, &a. Ey. v. Eosenbeny, 425 ; Roberts v. Koehler, 30 Fed. Rep. 45 Ark. 2.o6 ; Arnold v. Illinois Cent. 94 ; Hatten v. Eailroad, 39 Ohio State, Eld. 83 111. 273 ; Cleveland, &c. Eld. 375 ; The, State v. Overton^ 4 Zab. 435 ; V. Curran, 19 Ohio State, 1 ; Sonth and Cleveland, &o. Eld. v, Bartram, 11 Ohio North Alabama Bid. v. Huffman, su- State, 457. 511 § 1083 LOCOMOTION OP PERSONS AND THINGS. [BOOK VI. declines to surrender it, then ejects him for non-payment, the road will be in default.^ If the road has, as it may, a rule per- mitting a stopping over on conditions which it defines, — such as procuring from the conductor a stop-over ticket,^ or the conductor's indorsement upon his ticket,^ — he is not therefore entitled to renew his travel after stopping except by conform- ing to the precise terms of the condition. Nor can he compel a stopping at a station not on the time-table.* A fortiori, — § 1083. Limited Tickets. — Since the passenger has no stop- over rights except by concession of the road, it may, by express words in its tickets, exclude stopping over, or limit it or the tickets to a specified time.^ And, because a conductor, in dealing with a passenger, is to follow the terms of the ticket, however repugnant they may be to the latter's rights as be- tween passenger and road,® he may expel one who has taken the first train after the purchase, if the ticket-time has ex- pired, though the delay of the train was by the road's fault.'' The time will ordinarily be computed by the rule which reckons the day as beginning and ending at midnight, and excludes fractions of a day.* Thus, a ticket issued on the sixth of a month, and limited to two days, is good until the midnight of the eighth.** If the ticket-time expires on Sunday and on that day there is no train, another rule of interpreta- tion 1" will permit the passenger to take a Monday train.^ Or, if it expires while the passenger is en route to his destination, he may commonly continue to the end, though this depends on the words of the ticket's limitation ; as, if it must be " used " within the time limited, it is used when accepted by 1 VanKrk v. Pennsylvania Eld. 26 New York Cent Kid. 51 N. Y. 100 ; Smith, Pa. 66. Boston, &o. Eld. ■». Proctor, 1 Allen, " Yorton ■». Milwaukee, &c. Ey. 54 267. Wis. 234. 6 Ante, § 1078, 1079. ' Denny ii. New York Cent. &c. Eld. ' Pennsylvania Co. v. Hine, 41 Ohio supra. State, 276. * Dietrich v. Pennsylvania Eld. 21 ^ Bishop Con. § 1340. Smith, Pa. 432. ' Georgia So. Eld. o. Bigelow, 68 Ga. 5 Elmore v. Sands, 54 N. Y. 512 ; 219. Boice V. Hudson Eiver Eld. 61 Barb. " Bishop Con. § 1438. 611 ; Gale v. Delaware, &c. Eld. 7 '* Little Eouk, &c. Ry. v. Dean, 43 Hun, 670 ; Johnson v. Philadelphia, Ark. 529, 634. &c. Eld. 63 Md. 106 ; Hamilton v. 612 CHAP. XLIV.J TRAVELLING BY RAIL. § 1086 the conductor at the beginning of the journe}', and he is entitled to adhere to the train until the journey terminates.^ And the same effect has been given to the words "not good for a passage after " the date specified.^ Like doctrines apply to — § 1084. Other Special Words. — One holding a ticket which, by its terms, is " not transferable," cannot, after riding on it part way, sell it to another with authority to finish the jour- ney, though on the same train.^ A return-ticket, conditioned that the holder shall be identified in a particular way,* — a coupon ticket, conditioned that a coupon shall be void if de- tached otherwise than by or in the presence of the conductor,^ — a commutation or other ticket limited by any lawful con- dition,® can be made effectual only by using it as the condition states. Yet a statute, making tickets good for a term which it specifies, notwithstanding the road's conditions, is valid.^ IV. The Act of Travel and its Rights and Obligations. § 1085. Already, — in a preceding chapter, we have seen how, in general, a railroad should be equipped and run.^ As passenger traffic involves great danger and .special responsi- bilities,^ suitable preparations for it should be made. Thus, — § 1086. Depot and Grounds. — The depot and connected grounds, visited by coming and going passengers, should be fitted up with a careful regard to their comfort and safety. The approaches, the tracks around, the platforms and places i Auerbach v. New York Cent. &c. Mass. 107 ; Louisville, &g. Rid. v. Har- Rld. 89 N. Y. 281, 284, 285 ; Evans v. ris, 9 Lea, 180. St. Louis, &c. Ky. 11 Mo. Ap. 463, 469. ^ Pennington v. Philadelphia, &c. 2 Lundy v. Central Pae. Rid. 66 Cal. Rid. 62 Md. 95 ; Hill v. Syracuse, &c. 191. Eld. 63 N. Y. 101 ; Lillis v. St. Louis, 3 Cody V. Central Pac. Rid. 4 Saw. &o. Piy. 64 Mo. 464 ; Downs v. New 114 ; Way v. Chicago, &c. Ky. 64 Iowa, York, &o. Eld. 36 Conn. 287 ; Sherman 48 ; Walker v. Wabash, &c. Ey. 15 Mo. v. Chicago, &c. Ry. 40 Iowa, 45 ; Pow- Ap. 333. ell V. Pittsburg, &c. Eld. 25 Ohio State, * Moses V. East Tennessee, &c. Eld. 70. 73 Ga. 356 ; Mosher v. St. Louis, &c. ' Dryden u. Grand Trunk Ry. 60 Ey. 23 Fed. Eep. 326, 19 Fed. Eep. Maine, 512. 849, 17 Fed. Eep. 880. » Ante, § 1023-1033. 6 Boston, &c. Rid. v. Chipman, 146 ' Ante, § 1064. 33 513 § 1089 LOCOMOTION OP PERSONS AND THINGS. [BOOK VI. for entering and leaving the cars, the passages to the cars ; every spot likely to be visited by passengers seeking the depot, waiting at it for trains, or departing ; should be made safe and kept so, and at reasonable times should be lighted. And passengers not in fault, injured through a neglect of this duty, may have compensation.^ In considering whether or not they are in fault, it may be taken into the account that they are justly entitled to presume this duty to have been discharged by the road ; rendering the several places, as far as practi- cable, safe.^ § 1087. Ladies' Waiting Room. — A special protection and care are due to female passengers. And a depot may prop- erly have a separate waiting room for them, and a rule ^ ex- cluding from it gentlemen not accompanied by ladies.* So also, — § 1088. Ladies' Car. — It is in like manner competent for a railroad company to set apart a special car for ladies, and gentlemen accompanying them, and by a rule exclude all others.* § 1089. Direction to Passengers. — The road owes to passen- gers the duty to point out to them the trains they should take, 1 Hulbert v. New York Cent. Eld. St. Paul, &c. Ry. 32 Minn. 390 ; Archer 40 N. y. 145 ; Carpenter v. Boston, &c. v. New York, &c. Eld. 106 N. Y. 589 : Eld. 97 N. Y. 494 ; Delamatyr v. Mil- Eeynolds v. Texas, &c. Ey. 37 La. An. waiikee, te. Ey. 24 Wis. 578 ; Gaynor 694 ; Chicago, &c. Ey. v. Coss, 73 lU. V. Old Colony, &c. Ey. 100 Mass. 208 ; 394 ; Sonier v. Bo.c 3^1^7:1. «c2aE. Si^ : J^^m,«g£.£d sainsaS Mfr tfiifc tin csmmaaL » Christie v. Gri^s, 2 Camp. 79 ; law is a ^tan. af raKOun^ Crofts V. Waterhonse, 3 Bing. 319, 11 * Autei J IlSS-tOffil ; Moore, 133 ; Stockton v. Frey, 4 Gill, Cooper, * Esr^ «» : ^nnatt a. Dot- 406 ; Stokes v. SaltonstaU, 13 Pet. 181 ; ton. 10 N. H. 4Si. -^ Aston V. Heaven, 2 Eap. 533 ; Harris v. • Aaiit, § HMS ; IfflmiEK. €&aii^in^ Costar, 1 Car. & P. 636 ; Mcaena^jan 68 Mo. S*) ; Stefas r. Sttans^. 13 V. Brock, 5 Eich. 17. Pet- ISl i lawrwas ^ t&iMfc. TO CaL * Ingalls V. Bills, 9 Met. 1. See 417 ; Eoberts r. J. CasseU, 50 Mich. 516, where many cases are 66 Md. 419. , t r, en .^ « Smith V. Consnmei's Ice Co. 52 » SchaahsD.WoodbnmSarven Wheel N. Y. Super. 430. Co. 56 Mo. 173 ; Parish v. Eden, 62 ' Ante, § 1018. Wis. 272 ; Mahoney v. Metropolitan ' Lewis i>. Bulkley, 4 Daly, 156. Eld. 104 Mass. 73 ; Templeton v. Mont- ' Ante, § 637, 673, 898. pelier, 56 Vt. 328; Bnesching v. St i" Lamb ». Old Colony Rid. 140 Mass. LouU Gas-light Co. 73 Mo. 219. 79. * Ante, § 959, 960, 1019 ; Hull v. 542 CHAP. XLVII.] FOOT AND OTHEE PRIVATE TRAVEL. § 1149 wrong.i And the omission by a railroad of required signals,^ bringing harm to a traveller on the highway, will subject it to damages ; ^ though the rule is otherwise as to a person not a traveller, to whom the railroad owes no duty Of carefulness.* In short, any negligence by the road, calculated to bring dam- age to an individual to whom it owes the duty of carefulness, will make it liable to him if he is free from negligence, other- wise it will not.5 § 1148. Foot-travellers — are within the same rules as trav- ellers by private carriage. If, for example, a non-negligent one ® is injured by the runaway horse of a negligent person, he may have compensation.^ And it is the same where the injury comes from any other negligence of any other person or corporation. But the injured one must be free from negligence.* § 1149. The Doctrine of this Chapter restated. Private travelling is commonly a particular use of the pub- lic ways, explained in a preceding chapter. If the traveller receives an injury from the joint negligence of himself and another person or corporation, he must bear it uncompensated. And however free from fault he may, be himself, the result is still the same unless he can show fault in the one from whom the injury proceeds. On showing such fault, he may have his damages. 1 Cole V. Fisher, 11 Mass. 137. ' Williams v. Grealy, 112 Mass. 2 Ante, § 1026, 1038. 79. » Cosgrove v. New York Cent. &c. « Hassenyer v. Michigan Cent. Rid. Eld. 87 K. y. 88. 48 Mich. 205 ; Tully v. Fitchburg Rid. * St. Louis, &c. Ry. v. Payne, 29 134 Mass. 499 ; Eaton i'. Erie Ry. 51 Kan. 166. N. Y. 544 ; Childs v. New Orleans City s Mann v. Central Vermont Rid. 55 Rid. 33 La. An. 154 ; Belton v. Baxter, Vt. 484 ; Jones v. Housatonic Rid. 107 14 Abb. Pr. N. s. 404 ; Simons v. Gay- Mass. 261 ; Watson v. Wabash, &c. Ry. nor, 89 Ind. 165 ; Soranton v. Hill, 6 66 Iowa, 164 ; Pennsylvania Rid. v. Out. Pa. 378 ; Oil City, &c. Bridge v. Goodman, 12 Smith, Pa. 329 ; Chicago, Jackson, 4 Am. Pa. 321 ; Bulger v. &c. Rid. V. Bell, 70 lU. 102. Albany Ry. 42 N. Y. 459 ; Shea v. » Schienfeldt v. Norris, 115 Mass. 17. Sixth Avenue Rid. 62 N. Y. 180. 543 § 1162 LOCOMOTION OP PERSONS AND THINGS. [BOOK VI. CHAPTER XL VIII. BAGGAGE. § 1150. Introduction. 1151-1153. General Doctrine. 1154-1162. Specific Questions. 1163. Doctrine of Cliapter restated. § 1150. How Chapter divided. — We shall consider this subject as to, I. The General Doctrine ; II. Some Specific Questions. I. The Creneral Doctrine. § 1151. Defined. — Whether we contemplate the duty of a common carrier of passengers as proceeding from the law ^ or from contract, it binds him to receive and convey with the passenger, and as a part of his undertaking, the passenger's personal baggage, commonly in England and sometimes in this country termed luggage.^ And, — § 1152. Nature and Extent of Liability. — For the safety of the baggage, the carrier is not simply to exercise the extreme care required in the carriage of the person ; ^ but, as in the carriage of merchandise,* he is the insurer of its safety except against the two forms of overwhelming force ^ termed the acts 1 Ante, § 1058-1062. * Bishop Con. § 596 ; Coggs v. Ber- 2 Hawkins v. Hoffman, 6 Hill, N. Y. nard, Holt, 131 ; Bohannan v. Bam- 586 ; Great Northern Ey. v. Shepherd, mond, 42 Cal. 227. 8 Exch. 30 ; Michigan Cent. Eld. v. ' Ante, § 166, 173 ; Swetland v. Bos- Carrow, 73 111. 348 ; Orange County ton, &c. Eld. 102 Mass. 276, 282 ; For- Bank v. Brown, 9 Wend. 85 ; Peixotti ward v. Pittard, 1 T. E. 27 ; Amies ». V. McLaughlin, 1 Strob. 468 ; Woods v. Stevens, 1 Stra. 128 ; Dale v. Hall, 1 Devin, 13 111. 746 ; Bomar v. Maxwell, Wils. 281 ; Price v. Hartshorn, 44 N. Y. 9 Humph. 621. 94 ; Colt v. McMechen, 6 Johns. 160 ; « Ante, § 1063, 1064. Elliott v. Eossell, 10 Johns. 1. 544 CHAP. XLVm.] BAGGAGE. § 1154 of God and of the public enemy.^ For example, if it is burned,^ stolen,^ or lost,* though not through his negligence, or if he delivers it to the wrong person on a forged order ,^ or if it is taken from him by a private robber,^ he must make good its value. § 1153. On Free Ticket. — To subject the common carrier of goods to this liability in its full extent,'^ the carriage must be for hire.* Hence one travelling on a free ticket, though entitled to the protection of a passenger as to his person,^ can, as to his baggage, claim of the carrier only the carefulness due from a gratuitous bailee, whose responsibility for losses is limited to those resulting from his negligence.^" A passen- ger's payment of fare includes the carriage of the baggage, equally with that of the person.^i II. Some Specific Questions. § 1154. Baggage or not. — Since, as ]ust seen, the carrier's responsibilities for baggage and for merchandise are the same, it is immaterial to the rights of the parties, in the absence of fraud, whether the effects accepted to be carried with the pas- senger are called baggage or merchandise. The two tests are, whether or not there is fraud, and whether or not the carriage is to be paid for. If, for example, what is offered to * Lovett V. Hobbs, 2 Show. 127 ; ' Coggs ». Bernard, 2 Ld. Raym. 909. Hannibal, &e. Rid. ■». Swift, 12 Wal. 8 Ante, § 954, note ; Middleton v. 262 ; Minter v. Pacific Rid. 41 Mo. 503 ; Fowler, 1 Salk. 282, Skin. 625 ; Lane v. Merrill i;. Grinnell, 30 N. Y. 594 ; Roth Cotton, 1 Salk. 148 ; Gray v. Missouri V. Buffalo, &c. Rid. 34 N. Y. 548, River Packet, 64 Mo. 47. 551 ; Hollister i). Nowlen, 19 Wend. » Ante, § 1076, 1092. 234. 1" Flint, &c. Ry. v. Weir, 37 Mich. 2 Chamberlain ■». Western Transp. Ill ; implied in dictum of Smith, J. in Co. 45 Barb. 218. Roth v. Buffalo, &c. Rid. 34 N. Y. 548, 3 McQuesten ■». Sanford, 40 Maine, 551. 117 ; Toledo, &c. Ry. b. Hammond, 33 " Ante, § 1151 ; Wilson •». Grand Ind. 379. Trunk Ry. 56 Maine, 60 ; Collins v. 4 Brooke v. Pickwick, 4 Bing. 218, Boston, &c. Rid. 10 Gush. 506, 507 ; 12 Moore, 447. The Elvira Harbeck, 2 Blatch. 336. ' Powell 1). Myers, 26 Wend. 591. And .see Van Horn v. Kermit, 4 E. D. • Forward v. Pittard, 1 T. K. 27, Smith, 453 ; McGill v. Rowand, 3 Barr, 34 ; Hollister v. Kowlen, snpra, at 451 ; Malone v. Boston, &c. Rid. 12 p. 238. Grayi 388. 85 545 . § 1156 LOCOMOTION OP PERSONS AND THINGS. [BOOK VI, the carrier as baggage is plainly and obviously not such, but some other sort of personalty, yet he, not being deceived, chooses to accept it as baggage, it takes the place of real baggage, the ticket pays for the carriage of it ^ the same as of the person, and the parties are mutually estopped to deny that it is baggage.^ An illustration of this is a tent received by the carrier to be transported as baggage, he is responsible for its loss.^ Or, if the carrier accepts merchandise to carry it in the form of baggage with the passenger, and charges for it extra, he is in like manner responsible.* Now, — § 1155. Not Disclosing. — If the passenger presents to the carrier merchandise in the form of baggage, and the latter, being told or assuming from its appearance that it is such, accepts it as baggage, when if he had known the facts he might have declined it or taken extra pay, he is in law de- frauded, whether a fraud was in fact meant or not. The most favorable view for the passenger is, that the carriage was to be gratuitous ; and, in any possible view, the carrier is not responsible for its accidental loss.^ This is a common case in travel and, with respect to it, — § 1156. What is Baggage. — The adjudications on this ques- 1 Ante, § 1153. such in fact. Blumantle v. Fitchbnrg " Hoeger v. Chicago, &c. Ey. 63 Rid. 127 Mass. 322. But it is emphati- "Wis. 100 ; Stoneman v. Erie Ry. 52 cally within a haggage-master's duty to N. T. 429 ; Cahill t>. London, &c. Ry. detennine what is baggage and what is 13 C. B. N. 8. 818, 8 Jur. N. s. 1063 ; not ; hence, within familiar rules, if he Great Northern By. v. Shepherd, 8 accepts as baggage what is not such, he Exch. 30, 38. Consult, and perhaps as binds his employer even though he dis- contra, Belfast, &c. Ry. v. Keys, 9 H. L. obeys instructions. Ante, § 609-615. Cas. 556, 8 Jur. N. s. 367, and places ' Chicago, &c. Rid. v. Conklin, 32 there referred to. And see Michigan, Kan. 56. &c Rid. ■». Oehin, 56 111. 293 ; Butler * Sloman v. Great "Western Ky. 67 V. Hudson River Eld. 3 E. D. Smith, N. Y. 208 ; Perley v. New York Cent. 671 ; Illinois Cent. Rid. v. Tronstine, &c. Rid. 65 N. Y. 374 ; Hannibal, fee. 64 Missis. 834 ; Ailing v. Boston, &c. Eld. v. Swift, 12 Wal. 262 ; Hellman v. Eld. 126 Mass. 121. Some of these Holladay, 1 Woolw. 865 ; Stoneman v. cases perhaps seem to or do cast doubt Erie Ry. supra. upon the doctrine of the text. And it ^ Cincinnati, &c. Eld. v. Marcus, 38 has been suggested, in respect of car- 111. 219 ; Michigan Cent. Eld. ». Car- riage by rail, that, in the absence of row, 73 111. 348 ; Hellman v. Holladay, special proof, the baggage-master has no 1 Woolw. 365 ; Pennsylvania Co. v. presumptive authority to bind the road Miller, 36 Ohio State, 641. by accepting for baggage what is not 546 CHAP, XLTIII.] BAGGAGE. § 1156 tion ; appear, at the first impression, a little inharmonious. Their seeming discords will diminish under the consideration that the facts of cases differ with the differing persons and their circumstances and pursuits, with the differing purposes of the travel, the. differing inducements to take the several articles claimed as baggage, and various other collateral things of this general sort.^ For example, the same article may be baggage or not according to the purpose for which it is car- ried ; as, a watch for sale is merchandise, one for time is bag- gage. With approximate accuracy, baggage may be said to consist of whatever, connected with the objects of the journey, and not exceeding the liftiits of reason and custom, the trav- eller takes with him for his personal use, whether during actual travel, or in intervals between trips, or upon its termi^ nation.^ And it has been held to extend even to what, within the custom of travellers, he carries for his family ; as, where one put into his trunk some wearing apparel bought for him- self and other members of his family, with materials for two dresses for them, and for a dress " intended for his landlady," all was held to be baggage except the landlady's part. This was deemed not to be such.^ So money for a journey, includ- ing a reasonable provision for possible emergencies,* an opera 1 Spooner v. Hannibal, &c. Eld. 23 whether for use or ornament, . . . but Mo. Ap. 403. also the gun-case or the fishing apparatus 2 American Contract Co. v. Cross, 8 ofthe sportsman, the easel of the artist on Bush, 472; Kansas City, &d. Rid. v. a sketching tour, or the books of the stu- Morrison, 34 Kan. 502 ; Yznaga Del dent, and other articles of an analogous Valle V. The Eichmond, 27 La. An. 90 ; character, the use of which is personal Doyle' 0. Riser, 6 Ind. 242 ; Chicago, to the traveller, and the taking of which &c. Eld. V. Collins, 56 111. 212 ; Michi- has arisen from the fact of his journeyT gau Cent. Eld. o. Carrow, 73 111. 348 ; ing." Cockburn, C. J. in Macrow o. New York Cent. &c. Eld. v. Fraloff, 100 Great Western By. Law Rep. 6 Q. B. U. S. 24. "We hold the true rule to 612, 622. be, that whatever the passenger takes ' Dexter v. Syracuse, &c. Eld. 42 with him for his personal use or con- N. Y. 326. And see Duffy v. Thomp- venience according to the habits or son, 4 E. D. Smith, 178 ; Kevins ». wants of the particular class to which Bay State, &c. Co. 4 Bosw. 225. he belongs, either with reference to the * Weeks v. New York, &o. Eld. 9 immediate necessities or to the ultimate Hun, 669 ; Jordan v. Fall Eiver Eld. 5 purpose of the journey, must be consid- Cush. 69 ; Dunlap v. International, &c. ered as personal luggage. This would Co. 98 Mass. 371 ; Merrill v. Grinnell, include, not only all articles of apparel, 30 N. Y. 594. 547 § 1157 LOCOMOTION OP PERSONS AND THINGS. [BOOK VI. glass,^ an author or professional man's manuscripts carried for study or for business connected with his travels,^ a me- chanic's tools in reasonable quantity,' a female passenger's apparel including valuable laces,* a watch and chain and finger rings,^ a pocket pistol,* and other valuables within the same reason, will ordinarily be deemed baggage. But money packed away simply for transportation,'^ or otherwise carried for pur- poses not connected with personal expenses,^ is not baggage. It was so held even where the passenger was stripped of six- teen thousand dollars by a robber who entered the carrier's car.^ And, though a woman's dress is baggage when she per- sonally carries it for her own use, it is not such in the trunk of the maker who is taking it to her in fulfilment of an or- der.^o In short, articles not meant for the use of the trav- eller or his family, being, for example, carried for sale, are not baggage." § 1157. Dogs. — On a question possibly open to some dif- ference of opinion, if a carrier by rail declines, under a rule of the road,i2 to take the dog of a passenger, but permits it to be received by the baggage-master and looked after and trans- ported for a fee wliich he may retain as a perquisite, the road ' Toledo, &c. Ky. v. Hammond, 33 both bo deemed baggage, but he was Ind. 379. allowed for one of them. Chicago, &c. 2 Hopkins v. Westcott, 6 Blatch. 64 ; EI4. v. ColUns, 56 111. 212. New York Cent. &c. Rid. v. Fraloff, 100 ' Kuter v. Michigan Cent. Eld. 1 U. S. 24. It was in England held that Bis. 35. an attorney at law could not recover for ' First Nat. Bank v. Marietta, &c. the deteBtion or loss of documents be- Rid. 20 Ohio State, 259 ; Orange County longing to his client, to be used in Bank v. Brown, 9 Wend. 85. court, as being baggage. Phelps v. Lon- • Weeks v. New York, &c. Eld. 9 don, &c. Ey. 19 0. B. N. s. 321, 11 Jur. Hun, 669. And see Pfister v. Central K. 8. 652. Pao. Eld. 70 Cal. 169. ' Kansas City, &c. Eld. v. Morrison, '° Michigan, &c. Eld. v. Oehm, 56 supra ; Porter v. Hildebrand, 2 Harris, 111. 293. Pa. 129. " Collins i). Boston, &c. Eld. 10 Cush. * Fraloff ». New York Cent. &c. Eld. 506 ; Stimson v. Connecticut EiverEld. 10 Blatch. 16. 98 Mass. 83 ; Hawkins v. Hoffman, 6 s McCormick v. Hudson Eiver Eld. Hill, N. Y. 586 ; Dibble v. Brown, 12 4 E. D. Smith, 181 ; Coward v. East Ga. 217 ; Smith v. Boston, &c. Rid. 44 Tennessee, &c. Eld. 16 Lea, 225. N. H. 325 ; Whitmore v. Steamboat « Woods V. Devin, 13 111. 746. In Caroline, 20 Mo. 513. one case it was held that two revolvers '^ Ante, § 1072. in a passenger's lost trunk could not 548 CHAP. XLVIII.] BAGGAGE. § 1159 will not be liable should the dog, the rule being known to the passenger, be lost ; ^ otherwise, where he has no notice of the rule.^ § 1158. Delivery to Carrier. — For the carrier's responsibili- ties to attach, there must be some actual or presumptive de- livery of the baggage to him.^ Prima fade, a check held by a passenger shows delivery.* But baggage accepted by the baggage-master is delivered though not checked,^ and so in some circumstances is baggage simply left at the depot for carriage with a passenger.* The formality of purchasing a ticket is not an indispensable prerequisite.^ But baggage simply intrusted to a freight agent for storage over night, by one who expects to take it the next day to the passenger depot to be carried with himself, is not delivered in the sense we are considering. The road's responsibilities to it are sim- ply those of a gratuitous bailee.^ There are some uncertain- ties as to unchecked — § 1159. Articles kept about the Person. — It is not neces- sary for the passenger, in order to hold the carrier respon- sible for his baggage, to cease watching it himself.* On the other hand, one who chooses not to trust the carrier, but to keep his baggage in his exclusive control, cannot recover com- pensation of him if it is lost.^" So where the passenger's own contributory negligence enters into the loss of which he com- plains, he cannot have compensation ; ^ as where, at the end ' Honeyman v. Oregon, &o. Rid. 13 100 Mass. 455 ; Montgomery, &c. Ey. Oregon, 352. ». Kolb, 73 Ala. 396. " Cantling v. Hannibal, &c. Eld.. 54 ' Lake Shore, &c. Ey. v. Foster, 104 Mo. 385. See Dickson v. Great North- Ind. 293. em Ey. 18 Q. B. D. 176. » Van Gilder v. Chicago, &c. Ey. 44 ' Gleason v. Goodrich Transp. Co. Iowa, 548. 32 Wis. 85 ; Green v. Milwaukee, &c. 9 Mudgett v. Bay State Steamb. Co. Eld. 38 Iowa, 100. 1 Daly, 151 ; Green v. Milwaukee, &e. « Chicago, &c. Eld. v. Clayton, 78 Eld. 41 Iowa, 410. 111. 616 ; Chock v. Little Miami Eld. 2 lo The Crystal Palace v. Vanderpool, Disney, 237. 16 B. Monr. 302 ; Abbott ». Bradstreet, ' Wilson V. Grand Trunk Ry. 57 55 Maine, 530 ; Cohen v. Frost, 2 Duer, Maine, 138 ; Bunch v. Great Western 335 ; The E. E. Lee, 2 Abb. U. S. 49 ; Ry. 17 Q. B. D. 215 ; Green v. Mil- Clark v. Bums, 118 Mass. 275 ; First waukee, &c. Eld. 41 Iowa, 410. Nat. Bank v. Marietta, &o. Eld. 20 ' Green v. Milwaukee, &c. Eld. 38 Ohio State, 259. Iowa, 100. And see Barron w. Eldredge, " Gonthier ». New Orleans; &c. Rid. 549 § 1160 LOCOMOTION OP PERSONS AND THINGS. [BOOK VI. of his journey or while temporarily absent, he leaves his over- coat or other article on the car-seat, forgetting it.* If, in travel by water, one leaves his stateroom locked, and an ar- ticle is stolen from it, or something is purloined from it at night while he is asleep, just principle would appear to hold the carrier liable ; but this sort of question has been decided both ways.2 A carrier by rail does not cease to be responsible simply because the passenger takes an article into the car with him, instead of having it deposited in the baggage car.* Of course, however the passenger may keep the article about his person, if the loss of it is traceable to any negligence of the carrier, into which his own does not enter, the carrier is liable.* § 1160. Limiting laability by Coatract. — We have seeH that, by the commonly held just doctrine, any contract between carrier and passenger freeing the former from responsibility for his negligence is void as contrary to the law and its pol- icy.^ Still the courts will generally give effect to a contract whereby the carrier is released from his common-law duty as an insurer, in the absence of negligence.^ And reasonable 28 La. An. 67 ; O'Rourke v. Chicago, Ohjo, &c. By. v. Selby, 47 Ind. 471 ; &c. By. 44 Iowa, 526. Higgins u New Orleans, &c. Rid. 28 1 Tower v. Utica, &c. Bid. 7 Hill, ^La. An. 133 ; United States Express v. N. Y. 47 ; Illinois Cent. Eld. v. Handy, Kountze, 8 Wal. 342 ; Simon v. The 63 Missis. 609 ; Whitney ». PuUman's Fung Shxxey, 21 La. An. 363 ; Lamb v. Palace Car, 143 Mass. 243. Camden, &c. Transp. Co. 2 Daly, 454 ; * American Steamship Co. ■». Bryan, Erie By. i>. Lockwood, 28 Ohio State, 2 Norris, Pa. 446; Gore v. Norwich, 358 ; United States Express v. Backman, &c. Transp. Co. 2 Daly, 254 ; The B. E. 28 Ohio State, 144 ; Gaines v. Union Lee, supra ; Crozier v. Boston, &c. Transp. &o. Co. 28 Ohio State, 418 ; Steamb. Co. 43 How. Pr. 466 ; McEee Gait v. Adams Express, 4 MacArthur, D. Owen, 15 Mich. 115. 124 ; Cleveland, &c. Bid. v. Curran, 19 ' Le Conteur ». London, &c. By. Ohio State, 1 ; Cincinnati, &c. Bid. v. Law Bep. 1 Q. B. 54, 58. Pontius, 19 Ohio State, 221 ; Knowlton ♦ Kinsley v. Lake Shore, &c. Eld. v. Erie By. 19 Ohio State, 260 ; Moul- 125 Mass. 54. ton "• St. Paul, &c. By. 31 Minn. 85. ' Ante, § 1074 ; Michigan, &a. Bid. « New York Cent. &c. Eld. v. Fraloff, V. Heaton, 37 Ind. 448 ; Ketchum v. 100 U. S. 24, 27 ; Hoadley v. Northern American, fie. Express, 52 Mo. 390 ; Transp. Co. T15 Mass. 304 ; Camp ». School District v. Boston, &c. Eld. 102 Hartford, &o. Steamb. Co. 43 Conn. Mass. 552 ; Southern Express v. Crook, 333 ; Band v. Merchants Despatch 44 Ala. 468 ; Christenson v. American Transp. Co. 59 N. H. 363 ; Illinois Express, 15 Minn. 270 ; New York Cent. Eld. v. Jonte, 13 Bradw. 424. Cent. Bid. u. Loekwood, 17 Wal. 357 ; 550 CHAP. XLVIII.] BAGGAGE. §1161 limitations in other respects are permitted ; ^ unreasonable ones are not.* But the limitation cannot be made by a mere rule ^ of the carrier company, or a notice printed on the back of a receipt * or on the front of the ticket,^ not brought home to the passenger and assented to by him.^ There must be a contract, which is constituted only where the two parties mutually consent.' And its interpretation should be strict against the carrier.^ § 1161. Redelivery to Passenger. — When a journey is ended, the caiTJer is entitled to have the passenger receive his baggage ; and, if he leaves it, the responsibility is trans- muted to that of a wai'ehouseman, and the liability remains only for negligence.^ If the passenger does not appear and claim the baggage, the higher responsibility of the carrier continues for a reasonable time, then the lower begins.^" What constitutes a reasonable time is a mixed question of law and fact, depending on the particular circumstances.^^ Some of the cases seem to hold that, on the termination of a railroad carriage at the place of the passenger's destination, 1 Smith V. North Carolina Rid. 64 N. C. 235 ; Sprague v. Missouri Pac. Ey. 34 Kan. 347 ; Brown v. Wabash, &c. Ry. 18 Mo. Ap. 568 ; Thompson v. Chicago, &c. Kid. 22 Mo. Ap. 321 ; The Bermuda, 23 Blatch. 554 ; Hirsh- terg V. Dlnsmore, 12 Daly, 429 ; Cape- hart V. Seaboard, &e. Rid. 77 N. C. 355 ; Harvey v. Terre Haute, &c. Rid. 74 Mo. 538 ; Rice v. Kansas Fac. Ry. 63 Mo. 314 ; South and North Alabama Rid. V. Hcnlein, 52 Ala. 606 ; Illinois Cent. Bid. V. Morrison, 19 IlL 136 ; Thayer V. St. Louis, &c. Rid. 22 Ind. 26 ; Fritzsche «. The Denmark, 27 Fed. Rep. 141 ; McCoy v. Erie, &c. Transp. Co. 42 Md. 498 ; Southern Express v. Cald- weU, 21 Wal. 264. ' CSiicago, 4c. Eld. v. Simms, 18 Bradw. 68 ; Memphis, &c. Rid. v. Hol- loway, 9 Baxter, 188 ; Coward v. East Tennessee, kc. Rid. 16 Lea, 225. » Ante, § 1072. * Michigan Cent. Rid. v. Mineral Springs Manuf. Co. 16 Wal. 318; Southern Express v. Armstead, 50 Ala. 350. * Mauritz v. New York, &c. Rid. 23 Fed. Rep. 765. ' Henderson v. Stevenson, Law Rep. 2 H. L. Sc. 470 ; Kawson v. Pennsyl- vania Rid. 48 N. Y. 212. ' Blossom V. Dodd, 43 N. Y. 264 ; Gott V. Dinsmore, 111 Mass. 45, 52 ; Southern Express v. Crook, 44 Ala. 468 ; Kirkland v. Dinsmore, 62 N. Y. 171 ; Wallace v. Matthews, 39 Ga. 617. See Steers v. Liverpool, &c. Steams. Co. 57 N. Y. 1. 8 Menzell v. Chicago, &c. Ry. 1 Dil. 531 ; St. Louis, &c. Ey. v. Smuck, 49 Ind. 302. 9 Mattison v. New York Cent. Eld. 57 N. Y. 552. M Chicago, &o. Rid. v. Boyce, 73 111. 510; Burnell v. New York Cent. &c. Rid. 54 N. Y. 184 ; Roth v. Buffalo, &c. Rid. 34 N. Y. 548 ; Holdridge v. Utica, &c. Rid. 56 Barb. 191. u Louisville, &c. Rid. v. Mahan, 8 661 § 1163 LOCOMOTION OP PERSONS AND THINGS. [BOOK TI. the liability as common carriers ceases when the baggage is taken from the car and placed upon the platform. Various complicated facts have been passed upon by the courts, but it will suffice to add here references to a few cases.^ § 1162. Sleeping and Palace Cars. —In a previous chapter, we had a brief view of the relations of these cars, and of the road in whose trains they run, to the passenger .2 It follows from the principles there stated, that the railroad proprietors are under the same responsibilities for baggage lost in a sleep- ing or palace car as in its own.' It has been even laid down that no special bargaining between passenger and palace car proprietor can relieve the road of its liabilities. It " must," said Freeman, J. " respond to its obligations as a carrier of passengers, whether it carry on the sleeper of the Pullman Car Company, or in its own coaches provided by itself." * Still it would seem that this view has not always been in the mind of the practising profession ; for suits for the loss of bag- gage in these cars have been oftener brought against their proprietors, than against the road. And in these suits, the car-proprietors have generally been deemed neither common carriers nor hotel keepers, because not compellable to receive all applicants ; yet they are held responsible for their negli- gence in the care of the traveller's effects.^ § 1163. The Doctrine of this Chapter restated. The common carrier's liability for baggage is in most re- spects the same as for ordinary freight. Yet the payment of Bush, 184 ; Mote v. Chicago, &c. Rid. » Ante, § 1112-1114. 27 Iowa, 22. * Kinsley v. Lake Shore, &c. Bid. 1 Great Western Ry. v. Bunch, 13 125 Mass. 64. Ap. Gas. 31 ; St. Louis, &c. Eld. v. * Louisville, &c. Rid. ■». Kntzen- Hardway, 17 Bradw. 321 ; Hodkinson terger, 16 Lea, 380, 386. See Illinois V. London, &o. Ry. 14 Q. B. D. 228 ; Cent. Rid. v. Handy, 63 Missis. 609. Chicago, &c. Kid. v. Addizoat, 17 Bradw. ^ Pullman Palace Car v. Smith, 73 632 ; Chicago, &c. Rid. v. Fairclough, 111. 360 ; Woodruff Sleeping, &c. Coach 52 III. 106 ; Bartholomew v. St. Louis, v. Diehl, 84 Ind. 474 ; Lewis v. New &c. Rid. 53 111. 227 ; Fairfax v. New York Sleeping Car, 143 Mass. 267 ; York Cent. &c. Rid. 67 N. Y. 11 ; Atch- Scaling ». Pullman's Palace Car, 24 Mo. ison, &c. Rid. v. Brewer, 20 Kau. 669 ; Ap. 29 ; Illinois Cent. Rid. «. Handy, Rome Rid. v. Wimberly, 75 Ga. 316 ; supra ; Whitney v. Pullman's Palace Fatten v. Johnson, 131 Mass. 297. Car, 143 Mass. 2i3. 652 CHAP. XLTIII.] BAGGAGE. § 1163 fare includes the transportation as well of the baggage as of the person. And the carrier is not compellable to take freight with the passenger, even though paid for it ; he may have his separate freight trains or boats. If he is deceived, and some- thing which is not baggage is passed off upon him as such, he is not responsible for its accidental loss. But if he knowingly consents to take as baggage what he might reject on the ground of its being freight, he is liable to the same extent as if he had no original power to decline. And it is the same if he accepts, with the passenger, freight for which he takes pay. He insures the baggage against all losses except from the acts of God and of the public enemy. Such is the common-law rule. And no contract between him and tlie passenger will free him from liability for losses from the negligence of him- self and servants. But, by contract, he may make any other limitations of his liability which the court deems reasonable, not inconsistent with his general duties of public carrier. 553 1160 LOCOMOTION OP PERSONS AND THINGS. [BOOK VI. CHAPTER XLIX. HOTELS AND BOARDING-HOUSES, § 1164. Introduction. 1165-1181. Hotels or Inns. 1182. Boarding-houses. 1183. Doctrine of Chapter restated. § 1164. How Chapter divided. — We shall consider this subject as to, I. Hotels or Inns ; II. Boarding-houses. I. Motels or Inns, § 1165. Defined. — The old and common legal name for the habitation we are considering is " inn." ^ In language less strictly professional, " hotel " is now more used. " Tavern," a word declining in popularity, signifies substantially the same thing. If there are shades of difference in the popular mean- ings of these words, they are of no legal consequence. An inn, hotel, or tavern is a house for the general entertainment of all travellers and strangers applying, ready to make suit- able compensation ; and it may be, or not, for the accommo- dation also of their horses and vehicles .^ § 1166. Analogous to Carrier. — An innkeeper, therefore, is under a duty to the public, attended by correlate rights, both of which are analogous to the corresponding ones of the com- 1 Jones V. Osbom, 2 Chit. 484. who are willing to pay a price adequate 2 Bishop Stat. Crimes, § 297, and to the sort of accommodation provided, the places there cited. "A house where and who come in a sitaation in which the traveller is furnished with every- they are fit to be received." Best, J. thing which he has occasion for whilst Thompson v. Lacy, 3 B. & Aid. 283, upon his way." Bayley, J. "A house, 286,287. And see Pinkerton v. Wood- the owner of which holds out that he ward, 33 Cal. 557. will receive all travellers and sojourners 554 CHAP. XLIX.] ■ HOTELS AND BOARDING-HOUSES. § 1169 mon carrier.! So we may find helpful illustrations in the last few chapters.^ Yet there are minor differences in the hold- ings out and the services of these two classes of persons, ren- dering it not quite safe to rely implicitly on the analogies thus furnished. To descend to particulars, — § 1167. License. — From early times, in England and in most of our States, the licensing of innholders has been pro- vided for by statutes. But the license does not make an inn- holder, nor does the absence of it prevent an innholder in fact from being such in law, or diminish his responsibilities.^ § 1168. Must receive Guest. — An innkeeper, who has room, must receive alF suitable applicants, even on Sunday.* So that to decline, without reasonable excuse, to accept a traveller as a guest, or to withhold food and lodging from an accepted one, is indictable.' A fortiori, it is actionable.^ But the guest must conform to the reasonable rules of the house ; as, he cannot select any room he fancies, and insist on sitting up in it all night, when another suitable room is offered,'' or insist on taking a dog into rooms occupied by other guests.* And the innkeeper may exclude "all disor- derly persons " and " all persons who come with an intent to make an assault, or to insult him, or his customers." Nor need he wait before acting until the assault or insult is given. But he cannot refuse accommodations to one because other persons of the same class have misbehaved.® He is under no obligation to provide a room or other facilities for the carrying on of any trade or business.^*' § 1169. Who Guest. — To decline receiving an applicant as a guest is indictable only if he is a " traveller." ^^ And some- 1 Ante, § 1058. v. Knight, 8, M. & "W. 269 ; McCarthy 2 Beginning at ante, § 1055. v. Niskem, 22 Minn. 90. ' Noreross v. Norcross, 53 Maine, ' Fell v. Knight, supra. 163 ; Atwater v. Sawyer, 76 Maine, 539. * Eeg. v. Eymer, supra. * Commonwealth D.Naylor, 10 Casey, 9 Atwater n. Sawyer, supra, opinion Pa. 86 ; Hawthorn v. Hammond, 1 Car. by Emery, J. p. 541. & K. 404. 1" Mowers v. Fethers, 61 N. Y. 34 ; 6 1 Bishop Crim. Law, § 532 ; Eeg. Fisher v. Kelsey, 121 U. S. 383 ; Myers V. Rymer, 2 Q. B. D. 136 ; Eex v. v. Cottrill, 5 Bis. 465. Ivens, 7 Car. & P. 213. " 1 Bishop Crim. Law, § 532 ; Bishop « White's Case, 2 Dver, 158 b ; FeU Dir. & F. § 567. 555 § 1171 LOCOMOTION OF PERSONS AND THINGS. [BOOK VI. thing like this must, in reason, be the rule in the civil action ; for one at home, having his usual accommodations, would apparently not be legally injured ^ by being excluded from a not needed temporary bed and board, provided for people away from home. On the other hand, if the hotel keeper, not being defrauded, as a carrier is when merchandise which is subject to freight is passed off upon him as non-paying bag- gage, accepts as guest one whom he might refuse because not a traveller, the parties are, as between themselves, in respect of their resulting rights and duties, mutually estopped to deny that the relation between them is that of innkeeper and guest.^ Such is the conclusion of legal reason ; and, though the de- cided cases are not very distinct on the question, they appear to concede this view ; or, at least, they are not as a whole adverse.^ Now, — § 1170. Rule as to which. — For the latter class of cases, the rule of the law appears to be, that a guest is any person whom, in the absence of fraud, the innkeeper receives into his inn, to provide for him on the basis of his being a traveller or transient person, whether in reality he is such or not. In a litigated case, this question will not be decided as of law from a single fact, but it will depend on all the facts com- bining ; hence commonly, yet not necessarily in all circum- stances, it will be for the jury, under instructions from the court.* To illustrate, — § 1171. Inatanoea. — If a man, not in travel, takes a strum- pet to a neighboring hotel and puts up with her under the representation that she is his wife, he practises a fraud on the hotel proprietor by whom, if the facts were known, he would be excluded ; for which reason, as well as because of the im- morality of the transaction, he cannot, claiming the character of guest, recover of such proprietor the value of effects non- negligently lost in the hotel.^ And we have intimations that 1 Ante, § 22, 26, 31. 265 ; Lusk v. Belote, 22 Minn. 468, and 2 Ante, § 1154. other cases cited to the next section. ' Compare Walling v. Potter, 35 * Hall v. Pike, 100 Mass. 495 ; Ar- Conn. 183 ; Arcade Hotel v. Wiatt, 44 cade Hotel v. "Wiatt, 44 Ohio State, 32. Ohio State, 32 ; Curtis v. Muiphy, 63 ^ Curtis v. Murphy, 63 Wis. 4. Wis. 4 ; Gastenhofer v. Clair, 10 Daly, 566 CHAP. XLIX.J HOTELS AND BOARDING-HOUSES. § 1172 the same result will follow if one solicits accommodatioiis, not because he wants them, but simply to secure protection for his goods.i A man by carrying his baggage into a hotel, with no further step, does not become a guest ; ^ but he may be such if accepted, though his stay is the briefest.* A neighbor of the landlord, lodging at the hotel by his invitation, is not a guest ; * for ho is not there in the capacity of a transient per- son. Nor are persons coming to an inn, on the keeper's invi- tation, for an evening's dance and supper, guests, though they pay.* Nor yet is a permanent boarder a guest.^ But a spe- cial bargaining for the accommodations at a reduced rate does not alone deprive the traveller of this character.'^ And the length of a sojourn at an inn is not absolutely controlling on this question.^ § 1172. Ceasing to be Guest. — One who departs from a hotel with no intention of returning, or by the surrender of his room or otherwise severs his personal connection with it, ceases to be a guest though he leaves his baggage or other effects. Whereupon the innkeeper's responsibility for such baggage or effects is transmuted to that of an ordinary bailee.^ But a mere temporary absence, by one who does not relin- quish his position as guest, does not have this effect.^" And in one case, perhaps not quite consistently with some others, we find it laid down that a departing guest whose baggage is by arrangement with the landlord to be sent after him, has for it the high protection due to a guest " for a reasonable 1 Arcade Hotel o. Wiatt, 44 Ohio 417 ; Slioecraft v. Bailey, 25 Iowa, State, 32. 553. 2 Strauss v. County Hotel, &c. Co. » Hancock v. Eand, 94 N. Y. 1, 10, 12 Q. B. D. 27 ; Yorke v. Grenaugh, 17 Hun, 279. 2 Ld. Eaym. 866. ' Miller v. Peeples, 60 Missis. 819 ; « Hodgson a. Nugent, 5 T. R. 277 ; MuiTay v. Clarke, 2 Daly, 102 ; White- Seadv. Amidon, 41 Yt. 15. more v. Haroldson, 2 Lea, 312; Mur- * Calye's Case, 8 Co. 32 a. ray v. Marshall, 9 Colo. 482 ; Gelley v. * Fitch p. Casler, 17 Hun, 126. Clerk, Cro. Jac. 188 ; Lawrence v. How- * Yance v. Throckmorton, 5 Bush, ard, 1 Utah, 142. 41 ; Manning v. Wells, 9 Humph. 7^6 ; '" Gelley v. Clerk, supra ; McDonald Johnson v. Reynolds, 3 Kan. 257. v. Edgerton, 5 Barb. 660 ; Allen v. 1 Beale v. Pasey, 72 Ala. 323 ; Pink- Smith, 12 C. B. N. s. 638, 9 Jur. N. s. erton ». Woodward, 33 Cal. 557 ; Berk- 230, 1284. shire Woollen Co. v. Proctor, 7 Gush. 567 § 11T4 LOCOMOTION OP PERSONS AND THINGS. [BOOK TI, time, to be estimated according to the circumstances of the case." 1 Concerning which protection, — § 1173. Innkeeper as to Guest's Effects. — As bridges and ferries constitute parts of a highway,^ and the rights and lia- ■ bilities of travellers are the same in respect of them as of the other parts ; so inns are a part of the great system of public travel, and the rights and liabilities of the guests in respect of their keepers are, or should be, the same as in respect of those who carry them and their goods. Hence, in reason and by the better authorities, for the modern cases are a little dis- cordant, the rule for the innkeeper is the same as that for the common carrier of goods and baggage ; * namely, he is an in- surer of the safety of whatever baggage or other things he receives into his inn from the guest, whether in fact negli- gent in their keeping or not, except against the two over- whelming forces termed the acts of God and of the public enemy.* For example, if they are stolen,? or burned,^ without the fault either of the guest or of the landlord, the latter must pay for them. Contrary to which, — § 1174. Untenable Doctrine. — We have a few cases where- in the landlord's responsibility is given an exceptional form, unique, and known in no analogous department of the law as respects goods and baggage. It is, that he is under the duty to exercise an extremely high care, yet not comprehending an insurance of their safety.^ A legislator might deem this rule better than the other, or he might prefer the other, without subjecting himself to special observation. But a judge or legal writer, whose very different duty it is to ascertain what 1 Adams v. Clem, 41 Ga. 65, 67, Norcross, 53 Maine, 163 ; Mason v. opinion by Brown, C. J. Thompson, 9 Pick. 280. ^ Ante, § 952, 954. ^ Bennet v. Mellor, 5 T. R. 273 ; « Ante, § 1063, 1074, 1075, 1152. Filipowski i-. Merryweather, 2 Fost. & * Richmond v. Smith, 8 B. & C. 9 F. 285 ; Chite v. Wiggins, 14 Johns. (Lord Tenterden, C. J. at p. 11, observ- 175 ; Bodwell v. Bragg, 29 Iowa, 232. ing, " I think that the situation of the « Hulett v. Swift, 33 N. Y. 571 ; landlord was precisely analogous to that Mowers v. Fethers, 6 Lans. 112. of a carrier ") ; Kent v. Shuckard, 2 B. ' Cutler v. Bonney, 30 Mich. 269 ; & Ad. 803, 804 (" I cannot see any dis- McDaniels i-. Sobinson, 26 Vt 316; tinction in this respect between an inn- Merritt v. Claghom, 23 Vt. 177 ; Daw- keeper and a carrier ") ; Morgan ». son v. Chamney, 5 Q. B. 164 ; Vance v, Barey, 6 H. & N. 265 ; Norcross v. Throckmorton, 5 Bush, 41. 558 CHAP. XLIX.] HOTEa^ AND BOAEDING-HOUSES. §1174 rule exists, instead of what ought to be, is required to search out and follow the reasoning of the law, and he is not per- mitted to travel on the line of the law-maker's reasoning. True, if he finds an unbroken series of adjudications contrary to the rule deduced by the law's reasoning, he must follow them, as constituting a technical exception. No one, examin- ing our reports on this question, would deem the present in- stance to be of this sort. The common law has established, quite beyond cavil, a rule for the common carrier of goods and baggage, the reason of which applies equally to the keeper of a common hotel or inn; and, so long as the law is a sys- tem of reason, this rule binds the courts until legislation has spoken otherwise.^ * And see the excellent elucidation of this question by Porter, J. in Hulett V. Swift, 33 N. T. 571. This case is significant as calling to our attention the office of the civil law in expositions of our own. The learned judge refers to Story on Bailments, § 472, as one of the sources of the modem misleading. Now, — Doctrines derived from the Civil Law. — Our common law has many doe- ti-ines traceable to the civil law. That system of jurisprudence being, equally with our own, a practical incarnation into human form of the natural and fundamental right common to all man- kind, by a civilized people for the use of associated men, the two systems, if built up in a manner worthy of respect, could not be otherwise than reasonably fair likenesses of each other. And inves- tigators into the sources of the younger system, not always bearing this truth in mind, will, as of course, concede more of motherhood to the older than is due. Still our jurisprudence is a good deal indebted to the civil law, just as our English language is to the Latin. But a Ijatin word, introduced into the Eng- ILsh, takes on new meanings and casts oflF old ones ; so that a study of its Latin origin affords but slight help to its Eng- lish use. And it is precisely so with a principle which the common-]aw juris- prudence has adopted from the civil law ; and the civil-law learning may lead us into error concerning it. Thus, in the matter before us, Story, in his "Bailments," sets out what he under- stands to be the civil-law doctrine, st^ites that our law on the subject is derived from the civil law, then by a natural process announces the civil-law rule as being that of the common law. I do not object to the study of com- parative jurisprudence. It is both in- teresting and instructive. And illus- trations of our common law from the civil are, at least, ornamental. Like ornament in other things, they are liable to mislead in moments when cau- tion is asleep. There was a time when English lawyers were too much inclined to despise the civil law. Now, when codification is becoming fashionable in England, and English lawyers are begin- ning to despise their mother the common law, and are devising means to degrade and then to murder her, they turn with reverence to the old system which is supposed to have the word ' ' Code " in it. So much comes from a name. Looking beyond the name, we discover that the civil law is a system built up, not by codifiers, but by jurists. The name " Code " originated in the act of 659 § 1176 LOCOMOTION OP PERSONS AND THINGS. [BOOK VI. § 1175. Guest's Contributory Negligence. — We have seen that, though the common-law carrier insures the safety of the passenger's baggage and goods as just explained, still, if harm comes to them through the passenger's negligence com- bining with the carrier's, such contributory negligence will defeat a suit for the damages.^ This doctrihe has a yet more frequent application in the cases we are now considering ; be- cause, of necessity, the guest has a sort of joint possession with the innkeeper, more or less approaching the exclusive. And the rule is, that, if his negligence has contributed to a loss, which equally or even principally is attributable to the innkeeper's fault, the latter may have the protection of the ordinary law of contributory negligence,^ whereby he will be relieved from responsibility.^ § 1176. "What Effects. — There are cases which seem to hold that the innkeeper's responsibility extends only to " baggage," as explained in the last chapter,* not including other valu- ables.* But the explanations of the last chapter also show, that the carrier's liability covers as well merchandise as bag- gage, except where that for which he is entitled to charge freight is fraudulently, passed off upon him as non-paying baggage. Now, in the relation of innkeeper and guest, there destroying all jurist works except some 891 ; Walsli v. Porterfield, 6 Norris, selected ones, and making it a punish- Pa. 376 ; Elcox v. Hill, 98 U. S. 218 ; able forgery for any man afterward to Clary v. WiUey, 49 Vt. 55 ; Bohler v. be a jurist. To be consistent, there- Owens, 60 Ga. 185 ; Howe Machine Co. fore, the present English worshippers of v. Pease, 49 Vt. 477 ; Burgess v. Clem- the civil law should, instead of advo- ents, 4 M. & S. 306 ; Armistead v. eating their codification schemes, labor Wilde, 17 Q. B. 261 ; Filipowski v. to establish a line of jurists of the com- Merryweather, 2 Fost. & F. 285 ; Cham- mon law ; and persuade Parliament to beriain v. Master-son, 26 Ala. 371 ; cease its petty codifications of selected Hadley v. Upshaw, 27 Texas, 547 ; subjects, wherein are petrified conglom- Protilet v. Hall, 14 La. An. 524 ; Kel- erations of good and bad deductions sey v. Berry, 42 111. 469 ; Hawley v. from the common law's reasonings into Smith, 25 Wend. 642 ; Murchison a. poor statutory stone, for practitioners Sergent, 69 Ga. 206 ; Classen v. Leo- andjudges to peck and quarrel over, in- pold, 2 Sweeny, 705; Oppenheim f. stead of employing themselves in any White Lion Hotel, Law Eep. 6 C. P. sort of reasoning. See, for example, 515. ante, § 689 and note ; post, § 1310-1314. * Ante, § 1154-1156. 1 Ante, § 1159. ' Pettigrew v. Bamum, 11 Md. 434 ; " Ante, § 458-470. Giles i;. Fauntleroy, 13 Hd. 126; Treiber « Cashill V. Wright, 6 Ellis & B. v. Bunwra, 27 Md. 130. 660 CHAP. XLIX.] HOTELS AND BOABDING-HOTJSES. § 1179 is ordinarily no scope for this distinction ; because, if the guest's trunk contains merchandise, there is no separate hotel charge for ifc, as there is a separate carrier's charge. The re- sult of which reasoning is, that commonly the innkeeper's responsibility extends to whatever the guest has with him, whether baggage or merchandise.^ Yet, if the innkeeper per- mits the guest to occupy a room for business purposes,^ or to carry on merchandising in his lodging room, this is a transac- tion outside of the relation of innkeeper and guest, and the responsibility we are considering does not attach to goods therein.* § 1177. Possession. — "The innkeeper, to be responsible for the guest's goods, must have an actual or constructive posses- sion of them. This rule is commonly satisfied by their being simply within his house ; they need not be put literally into his hands, or into the hands of his servant.* And, as ex- plained in the last chapter in respect of railroad baggage,^ the guest's possession does not necessarily exclude the landlord's ; so that the latter may be responsible for the loss of what the former retains about his person.^ But if the guest chooses to retain that exclusive control and custody which exclude the landlord's, he cannot have compensation for a loss.^ And it is the same if he intrusts his effects — for example, money — to a fellow-^est, in whom he reposes confidence.^ § 1178. Horses and Carriages, — not being things Cared for within the inn, are sufficiently delivered when intrusted to a servant out of doors.^ § 1179. Statutory Modifications. — The foregoing rules of 1 Berkshire Woollen Co. v. Proctor, « Calye's Case, 8 Co. 32 a ; Tforcross 7 Cush. 417, 426, 427 ; Kent v. Shuck- v. Norcross, 53 Maine, 163 ; Eockwell ard, 2 B. & Ad. 803 ; Needles v. How- v. Proctor, 39 Ga. 105 ; Bennet v. Mel- ard, 1 E. D. Smith, 54 ; Beedle v. lor, 5 T. K. 273 ; Euhenstein o. Cruik- Morris, Cro. Jac. 224 ; Wilkins v. Earle, shanks, 54 Mich. 199 ; Candy «. Spencer, 44 N. Y. 172 ; Kellogg v. Sweeney, 1 8 Fost. & F. 306. Lans. 397 ; Threfall v. Berwick, Law ^ ^nte, § 1159. Kep. 7 Q. B. 711, 10 Q. B. 210. = Jalie v. Cardinal, 35 Wis. 118. 2 Ante, § 1168. ' Vance v. Throckmorton, 5 Bush, » Fisher v. Kelsey, 121 U. S. 883 ; 41. Myers v. Cottrill, 5 Bis. 465 ; Fam- ' Houser v. Tully, 12 Smith, Pa. 92. worth V. Packwood, 1 Stark. 249. » Jones v. Tyler, 1 A. & B. 522. 36 561 § 1181 LOCOMOTION OP PERSONS AND THINGS. [BOOK VI. liability are in many of our States more or less modified by statutes. But as the reader will have before him those of his own State, and the decisions upon them, it is not necessary to enter here into this part of the subject.^ § 1180. Custody not as Innkeeper. — We have seen * that, when a guest has severed his personal connection with the inn, the innkeeper's responsibili,ty.for effects left behind is reduced to that of an ordinary bailee. And it is the same where one not a guest deposits a thing with him.^ . § 1181. Lien. — The innkeeper may retain possession of the guest's goods to enforce pay for his entertainment ; * even though, he having them lawfully with him,^ they are the prop- erty of a third person.* For example, ihe Jien was enforced against the true owner of a hired piano, which the guest brought to the hotel.^ But it is otherwise where the inn- posing that this traveller was a robber, and had stolen this horse ; yet, if he comes to an inn and is a guest there, and delivers the horse to the innkeeper who does not know it, the innkeeper is obliged to accept the horse, and then it is very reasonable that he shall have a remedy for payment, which is by re- tainer. And he is not obliged to con- sider who is owner of the horse." And then follows a discussion as to whether or not an innocent calnier of stolen goods has a lien on them for the car- riage. The latter question has in some American cases been decided against the carrier ; and, it seems to me, rightly. Bobiuson v. Baker, 5 Cnsh. 137 ; Fitch ■B. Newberry, 1 Doug. Mich. 1. See, particularly, the opinion of Fletcher, J. in the former case. In the supposed case of a thief putting up at an inn with his stolen horse, the innkeeper, igno- rant of the facts, might suppose himself obliged to receive him. In truth, he was under no such obligation, and if the receiving had been with knowledge, he would have been even indictable. ' Proctor V. Nicholson, 7 Car. & P. 67 ; Manning v. Hollenbeck, 27 Wis. 202 ; Snead v. Watkins, 1 C. B. N. s. 267. ' Threfall v. Berwick, Law B«p. 7 ' Some of the cases are Fisher v. Kelsey, 121 U. S. 383 ; Faucett v. Nichols, 64 N. Y. 377 ; Olson v. Cross- man, 31 Minn. 222 ; Stewart v. Head, 70 6a.' 449 ; Stewart v. Parsons, 24 Wis. 241 ; Fuller v. Coats, 18 Ohio State, 343 ; Hyatt v. Taylor, 42 N. Y. 258 ; Ramaley i>. Leland, 43 N. Y. 539 ; Bendetsori v. French, 46 N. Y. 266 ; Bosenplaenter v. Boessle, 54 N. Y. 262 ; Krohn v. Sweeney, 2 Daly, 200 ; Beale V. Posey, 72 Ala. 323 ; Lanier v. Yonng- blood, 73 Ala. 587 ; Becker v. Haynes, 29 Fed. Eep. 441 ; Spring v. Hager, 145 Mass. 186 ; Noble u. Milliken, 77 Maine, 359 ; Burbank v. Chapin, 140 Mass. 123. ■■' Ante, § 1172. ' Arcade Hotel v. Wiatt, 44 Ohio State, 32 ; Healey v. Gray, 68 Maine, 489 ; Broadwater v. Blot, Holt N. P. 547. * Thompson v. Lacy, 3 B. & Aid. 283 ; Pollock v. Landis, 36 Iowa, 651 ; Gammell o. Schley, 41 Ga. 112 ; Dun- lap V. Thome, 1 Eich. 213 ; Hursh v. Byers, 29 Mo. 469. ' Possibly this qualification is not admissible, but probably it is. In Yorke V. Grenaugh, 2 Ld. Eaym. 866, the court is lefiorted to have said : "Sup- 562 CHAP. XUX.] HOTELS AND BOAEDING-HOUSES. § 1183 keeper knows the thing not to belong to the guest.^ This lien, like any other, may be waived ; ^ but a mere taking of security is not a waiver.^ We have some statutes concerning it.* An exemption of the guest's property from attachment does not prevent the lien from adhering.^ It does not extend to the guest's person, and especially the innkeeper cannot strip the clothes from him.® II. Boarding-houses. § 1182. General. — The rights and liabilities of innkeepers do not, at the common law, extend to the proprietors of boarding-houses, or to innkeepers in respect of mere boarders.^ But we have statutes, in various terms, gii'ing the lien to boarding-house keepers in circumstances which they, point out.^ A boarder is not under the necessities of a traveller ; therefore, at the common law, bargainings by him for board stand on the footing of ordinary contracts. § 1183. The Doctrine of this Chapter restated. Hotel keepers and common carriers, as to both persons and property, are quasi public ofiRcers. They supply, for the gen- eral good, an indispensable conveyance of persons and their effects ; with the needful resting places on the way, and the refreshments. Hence, on the one hand, those who have undertaken this office must fulfil it, and, on the other, they may justly claim to have their compensation made secure. Q. B. 711, 10 Q. B. 210 ; Cook o. Kane, son, 23 Mo. Ap. 255 ; Wyckoff v. 13 Oregon, 482. Southern Hotel, 24 Mo. Ap. 382. 1 Broadwood ». Granara, 10 Exch. * Swan v. Bournes, 47 Iowa, 501. 417. 6 Sunbolf i>. Alford, 3 M. &"W. 248. 2 Mulliner v. Florence, 3 Q. B. D. ' Pollock v. Laudis, 36 Iowa, 651. 484. See Manning •». HoUenbeck, supra; ^ Misch v. O'Hara, 9 Daly, 361; Grmnell v. Cook, 3 HUl, N. Y. 485, Mills v. Shirley, 110 Mass. 158 ; Smith 492. V. Colcord, 115 Mass. 70 ; Oady ■». Mc- « Angus 1). McLachlan, 23 Ch. D. Dowell, 1 Lans. 484 ; Nichols v. Halli- 330. day, 27 Wis. 406 ; Brooks v. Harrison, * Domestic Sewing Machine Co. v. 41 Conn. 184 ; Mcllvane v. Hilton, 7 Watters, 50 Ga. 573 ; Coates v. Ache- Hun, 594. 563 § 1183 LOCOMOTION OP PEESONS AND THINGS. [BOOK VI. On this basis, the law of this double subject of common car- riers and innkeepers proceeds. It has various distinctions, but all grow out of the differences in the different sorts of case. The innkeeper is under the duty to receive the guest, and to keep him and especially his effects safely. He is, therefore, entitled to be paid ; and, to enforce payment, the law gives him a lien, not on the person but on the baggage and other goods of the guest. He cannot know that the guest, with whom he deals under compulsion, is responsible ; but he can compute the value of the goods. Hence the lien covers whatever the guest has lawfully with him ; and, though it should not in truth be his, the innkeeper's claim supersedes all other ownership. 664 CHAP. L.J SENDING PABCEL8. § 1186 CHAPTER L. SENDING PARCELS. § 1184. Already, — in the late preceding chapters, and especially in the last two, we have had a view of the leading principles which govern this one. And — § 1185. The Rule — for the present subject is, that express companies and all other companies and individuals, whose business is the carrying for pay of all parcels offered, are in law common carriers of goods,^ with the rights and duties which pertain alike to all classes of such carriers ; ^ so that, for example, in the absence of any statute or contract varying their obligations, they are insurers of the safety and the safe carriage, within a reasonable time, of the parcels, except as against the two overwhelming forces known as the acts of God and of the public enemy .^ § 1186. 'What the DeUvery. — A common carrier is required to deliver the goods which he has carried.* And whether the delivery shall be at the consignee's dwelling-house, at his place of business, on a wharf, at the carrier's depot, with or without notice to the consignee, or how otherwise, depends on 1 Ante, § 1057. 144 ; Michigan Cent. Eld. ■». Curtis, 80 * Ante, § 1151-1153. 111. 324 ; Upshare v. Aidee, 1 Comyna, " Ingate v. Christie, 3 Car. & K. 61 ; 25 ; Parmelee o. Lowitz, 74 111. 116 ; Taylor v. Great Northern Ky. Law Palmer v. Grand Junction Ey. 4 M. & Eep. 1 C. P. 385 ; Southern Express v. W. 749, 766, 768 ; Bland v. Adams Crook, 44 Ala. 468 ; McMahon v. Macy, Express, 1 Duv. 232 ; Neal v. Saunder- 51 N. Y. 155 ; Christenson v. American son, 2 Sm. & M. 572 ; Day v. Bidley, Express, 15 Minn. 270 ; Southern Ex- 16 Vt. 48. press V. Newby, 36 Ga. 635 ; Stadhecker * American Express v. Baldwin, 26 V. Combs, 9 Eich. 193 ; United States 111. 504 ; Scholes v. Ackeriand, 15 111. Express v. Bush, 24 Ind. 403 ; Eichards 474 ; Gibson ». Culver, 17 Wend. 30.'!; V. Westcott, 2 Bosw. 589 ; United States Brown v. Hodgson, 4 Taunt. 189; Bod- Express V. Backman, 28 Ohio State, enham ». Bennett, 4 Price, 31. 665 § 1188 LOCOMOTION OP PERSONS AND THINGS. [BOOK VI, the nature and mode of the carriage, the sort of thing, the usages of the business, and the particular contract of carriage.^ Parcels, conveyed by expressmen and other carriers of the like sort, are commonly to be delivered at the house or place of business of the consignee, according to the nature of the par- ticular case, and the form of the address.^ § 1187. Heceiving Parcel — Delivery Impracticable. — The consignee's duty to receive a parcel is concurrent with that of the carrier to deliver it to him. And if, because of the for- mer's absence, or because after due searching he cannot be found, or any other like impediment, a delivery cannot be made, the latter's special responsibility terminates. Yet, having the parcel, he must take the care of it due from a warehouseman.' § 1188. Disclosing to Carrier. — The rule exempting the car- rier of passengers from responsibility for the safety of mer- chandise for .which he is - entitled to be paid, when passed off upon him as non-paying baggage,* has no application to a pas- senger's trunk when taken by an expressman to a hotel. It is treated as merchandise, its particular contents are of no consequence, and, whatever they are, the expressman is liable if it is lost.® And where any common carrier of merchandise who has given no notice that his prices will vary with- the value of a package, desires to know its value, he must ask ; in the absence of which asking or notice, he is not defrauded by the consignor's mere omission to mention the value, how- 1 The Peytona, 2 Curt. C. C. 21 ; v. Armstead, 50 Ala. 350 ; Duff ». Eowland v. Miln, 2 Hilton, 150 ; The Budd, 3 Brod. & B. 177, 181 ; Marshall Sultana ». Ch^man, 5 Wis. 454; Golden v. Wells, 7 Wis. 1 ; Sullivan v. Thomp- V. Manning, 2 W. Bl. 916 ; Stephenson son, 99 Mass. 259 ; American Union V. Hart, 4 Bing. 476 ; Fanners & Mech. Express v. Eohinson, 22 Smith, Pa. Bank v. Oiamplain Transp. Co. 23 Vt. 274 ; Henshaw v. Eowland, 54 N. Y. 186, 209 ; Cope v. Cordova, 1 Rawle, 242. 203 ; Ostrander v. Brown, 15 Johns. 39 ; ' Ante, § 1161 ; Adams Express v. Garside v. Trent, &c. Nav. 4 T. B. 581 ; Darnell, 31 Ind. 20 ; Duff v. Budd, 8 Price ». Powell, 3 Comst. 322 ; Norway Brod. & B. 177 ; American Express v. Plains Co. ■». Boston, &c. Eld. 1 Gray, Hockett, 30 Ind. 250 ; Roth v. Buffalo, 263 ; Dean v. Vaccaro, 2 Head, 488 ; &c. Eld. 34 N. Y. 548 ; Indianapolis, Bansemer v. Toledo, &c. By. 25 Ind. &c. Eld. d. Hemdon, 81 lU. 143. 434. * Ante, § 1155. 2 American Merchants Union Exp. ' Parmelee v. Lowitz, 74 111. 116. V. Wolf, 79 111. 430 ; Southern Express 5^6 CHAP. L.] SENDING PARCELS. § 1191 ever great it may be.^ Therefore his liability is complete and unimpaired. But any misleading appearance of the package, any non-communication of what it is important for the carrier to know, any fraud in law or in fact practised upon him re- lating to it, therefore any non-communication of a value which the consignor ought to disclose, will exempt the carrier from his high responsibility .2 § 1189. Gratuitous. — One, whether a common carrier or not, who undertakes to carry a package without reward, is in law a gratuitous bailee ; so is liable only for losses from gross negligence.^ § 1190. c. O. D. — This mark on a package * does not alone charge the carrier with the duty to collect its value on de- livery ; there must be proof of a further understanding, or of a usage, to this effect.^ But the undertaking to collect, prop- erly shown, binds the carrier — the consequences whereof will be obvious without special explanation.^ § 1191. Limiting Liability. ' — By the commonly accepted doctrine, the carrier cannot, by any notice or bargaining, ex- empt himself from liability for his negligence.'^ But, as to most other particulars of his common-law duty, a distinct and mutually understood agreement, not a mere notice of which the party employing him has no knowledge or to which he does not in fact assent, will, to the extent deemed by the court reasonable and just, be effectual.* 1 Baldwin v. Liverpool, &c. Steams. Cressap, 6 Bush, 572 ; Upshare v. Aidee, 74 N. Y. 123 ; Merchants Desp. Transp. 1 Comyns, 25. Co. V. BoUes, 80 HI. 473. * Bishop Con. § 377. 2 Bastard v. Bastard, 2 Show. 81 ^ Chicago, &c. Ey. ■». Merrill, 48 and note ; Titchbume v. White, 1 Stra. 111. 425 ; American Merchants Union 145 ; Gibbon v. Paynton, 4 Bur. 2298, Exp. v. Wolf, 79 111. 430. 2300 ; Tyly v. Morrice, Carth. 485 ; ° Meyer ii. Lemoke, 31 Ind. 208 ; Hayes v. Wells, 23 Cal. 185 ; Warner Murray v. Warner, 55 N. H. 546 ; Her- V. Western Transp. Co. 5 Rob. N. Y. rick v. Gallagher, 60 Barb. 566. 490 ; American Express v. Perkins, 42 ' Ante, § 1075, 1160 ; Kirhy v. 111. 458 ; Oppenheimer v. United States Adams Express, 2 Mo. Ap. 369 ; Cm- Express, 69 111. 62. And see United dorff v. Adams Express, 3 Bush, 194. States Express ».' Boot, 47 Mich. 231. - ' Ante, § 1160 ; American Express » Beauchamp v. Powley, 1 Moody & v. SpeUman, 90 111. 455 ; Southern Ex- it. 38 ; Kirtland v. Montgomery, 1 press v. Hunnicntt, 54 Missis. 566 ; Swan, Tenn. 452 ; Adams Express i;. Porter v. Southem Express, 4 S. C. 135 ; 567 § 1193 LOCOMOTION OP PERSONS AND THINGS. [BOOK VI. § 1192. Lien. — The expressman, or any other common carrier, has a lien on the goods for their carriage.^ § 1193. The Doctrine of this Chapter restated. The subject of this chapter is parcel of the wider law of common carriers. Therefore, in its leading principles, it is within elucidations which have occupied us all the way since the opening of the chapter on "Travelling by Rail." Any public carrier of parcels for all persons is a common car- rier, and the law of common carriers applies to him in all respects. A further repetition of the particulars is not deemed necessary. Beed v. United States Express, 48 N. Y. Express, 63 Mo. 376 ; Brehme i;. Adams 462 ; Blossom v. Dodd, 43 N. Y. 264 ; Express, 25 Md. 328. Magnin u.' Dinsmore, 56 N. Y. 168 ; i Ante, § 1181 ; United States Ex- Hopkins V. Westcott, 6 Blatch. 64 ; press v. Haines, 67 lU. 137 ; Langwor- American Express v. Second Nat. Bank, thy v. New York, &c. Bid. 2 E. D. Smith, 19 Smith, Fa. 394 ; Snider v. Adams 195 ; Adams v. Clark, 9 Cush. 215. 568 CHAP. LI.] MAIL, TELEGRAPH, TELEPHONE. § 1196 CHAPTER LI. MAIL, TELEGRAPH, AND TELEPHONE COMMUNICATION. § 1194. Introduction. 1195-1202. Communication by Mail. 1203-1212. By Telegraph. 1213. By Telephone. 1214. Doctrine of Chapter restated. § 1194. How Chapter divided. — We shall consider this subject as to T. Communication bj Mail ; 11. By Telegraph ; III. By Telephone. I. Communication by Mail. § 1195. Whether Common Carrier. — Carriage through the mails is a function of the government of the United States, provided for in our National Constitution, and executed by public officers called postmasters. Congress, by statutes, reg- ulates the service, and fixes its bounds.^ It is plain, there- fore, that if carriage by mail is to be regarded as done by a common carrier, the government is the carrier. Thereupon, not only could not such carrier be sued,^ but there is no prin- ciple in our law justifying a court in casting upon the sovereign power the sort of obligation under which a common carrier acts. § 1196. Postmaster. — A postmaster, then, is an officer of the government,^ and not a common carrier. As such officer, his rights and liabilities are within the explanations of a pre- ceding chapter.* Thus, — 1 Ex parte Jackson, 96 JJ. S. 727 ; * Keenan v. Southworth, 110 Mass. United States v. Vilas, 124 U. S. 86. 474 ; United States v. Eddy, 1 Bis. 227. 2 Ante, § 749. * Ante, § 770-798. 569 § 1200 LOCOMOTION OP PERSONS AND THINGS. [B0OK YI. § 1197. Forwarding Letter. — If a letter or other mailable matter is deposited in the post-office, the postmaster is under the legal duty, a neglect whereof is actionable by a person in- jured,* to forward it to the one to whom it is addressed.^ And, within the same reason, where a man delivered to a post-oflBce clerk a letter with money in it, to be sent as a regis- tered letter, both supposing it could be so, then the clerk learned that it could not be registered, but by direction of his superior forwarded it as an ordinary letter, whereupon it was lost, the two oflBcials were held to be jointly answerable to the owner.* So, — § 1198. Delivering. — For the same reason, a postmaster who declines to deliver a letterj newspaper, or other mail-mat- ter to the person to whom it is addressed, is liable for the resulting damages.* As to — ^ § 1199. Under Officers — Clerks. — By law, " all persons employed in the postal service " must take a prescribed oath of oflBce.® So that the clerks and other subordinates, duly sworn, are legally regarded as " public officers, each of whom is responsible for his own negligence only," &nd not for that of any of the others, although selected by him, and subject to his orders." ® Therefore a postmaster's liability for the negligence of his sworn assistants can result only " from his own neglect in not properly superintending the discharge of their duties in his office." '' Now, — § 1200. NegUgent or Careful. — By the general law for offi- cial persons, one doing a ministerial act is answerable to an individual injured through any negligence therein, but not for 1 Ante, § 22, 26, 132, 796. ^ u. S. Stat. 1874, c 46. s Dunlop V. MTinrne, 7 Cranch, 242. * Gray, C. J. in Eeenan v. Sonth- * Fitzgerald v. BnrriU, 106 Mass. worth, 110 Mass. 474, referring to Lane 446. V. Cotton, 1 Ijd. Baym. 646, .12 Mod. * Teal V. Felton, 12 How. TJ. S. 284 ; 472 ; Whitfield v. Le Despencer, Cowp. s. c. in State court, nom. Teall •». Fel- 754 ; Dunlop v. Munroe, 7 Cranch, 242 ton, 1 Comst. 537 ; Edwards v. Dick- Schroyer v. Lynch, 8 Watts, 453 enson, 12 Mod. 6 ; Eowning v. Good- Bishop v. Williamson, 2 Fairf. 495 child, 2 W. HI. 906 ; Smith v. Pow- Hutchins v. Braokett, 2 Fost. N. H. dich, Cowp. 182 ; Stock v. Harris, 5 252. Bur. 2709 ; Nevius v. Bank of Lansing- ' Johnson, J. in Dunlop v. Munroe, burgh, 10 Mich. 547. supra, at p. 269. 570 CHAP. U.] MAIL, TELEGRAPH, TELEPHONE. § 1203 an injury from the non-negligent performance of an official duty.^ Within which principle, combined with the doctrine of the last section, a postmaster who discharges his own offi- cial functions with due care, is not responsible for the loss of a letter with its inclosure, or of any other package in the mail, or in passing through the hands of his under officers.^ And it is the same where a subordinate steals money from a letter.^ But for any loss through his personal negUgence he must make reparation.* Also, — § 1201. Servant. — The postmaster is responsible for the acts of any unsworn person — not, therefore, a fellow-officer ^ — whom he admits to any service about the mails.® § 1202. Privacy. — A letter or other sealed package, paying letter postage, is, in the post-office and mails, under the same protection of the law as private papers in one's dwelling- house. Neither an officer in the mail service, nor any private person other than the one to whom it is addressed, nor any officer of the law, without a warrant under oath, may open it, even for the purpose of detecting crime.^ In England, one cannot reclaim a letter which he has deposited in the post- office ; but in France he may, at any time before it is despatched.* II. By Telegraph. § 1203. Compared with Mail. — Our telegraphic service is not, like that of the mails, governmental. And it is con- ducted, not by official persons, but by servants of the proprie- tors of the respective lines. So that the doctrines of this sub-title and of the last are quite distinct. 1 Ante, § 750, 771, 789, 791, 796. * Maxwell v. Mcllvoy, 2 Bibb, 211 ; ^ Lane v. Cotton, 11 Mod. 12, 5 Mod. Christy ». Smith, 23 Vt. 663. See Dan- 456, 12 Mod. 472, 1 Salk. 17, 1 M. Eayra. forth «. Grant, 14 Vt. 283. 646 ; Keenan v. Southworth, 110 Mass. « Ante, § 1199. 474 ; Whitfield v. Le Despeneer, Cowp. ' Bishop v. Williamson, 2 Fairf. 495. 754. See Hordem v. Dalton, 1 Car. & And see Sawyer v. Corse, 17 Grat. 230. P. 181; Bolani!. Williamson, IBrev. 181. ' Ex parte Jackson, 96 U. S. 727 ; 8 Whitfield V. Le Despeneer, snpra ; United States v. Eddy, 1 Bis. 227. Franklin v. Low, 1 Johns. 396 ; Schroyer ' Ex parte Cote, Law Eep. 9 Ch. V. Lynch, 8 Watts, 453 j Bolan v. Wil- Ap. 27. liamson, 2 Bay, 551. 671 § 1206 LOCOMOTION OF PERSONS AND THINGS, [BOOK TI. § 1204. Differences — Statutes. — We have many statutes, the terms of which more or less differ, regulating our tele- graph companies and their business. Besides which, our judicial decisions of questions not depending on statutory ex- pressions are not altogether harmonious. The result whereof is an admonition to the practitioner to look carefully into the particular statutes and adjudications of his own State ; while, in the nature of this sort of thing, such elucidations as can be given here will seem not absolutely complete. § 1205. Duty. — Whether we look at this subject in the light of the common law, or of it and the statutes combined, the result is, that a telegraph company, by virtue of its hold- ing out,i is under the duty to accept and with reasonable promptness transmit, at uniform and reasonable rates, all offered messages within the capacity of its service, — a duty in some of the States more precisely defined and specially en- forced by statutes.^ Some particular questions are — § 1206. Nature of Liability — (^Common Carrier — Bailee^. — It has been both affirmed and denied that telegraph com- panies are common carriers of the messages intrusted to them. And it has sometimes been assumed that, if they are such, they are, tlierefore, insurers of their transmission, with- in a reasonable time, and of the accuracy of the words sent, as against all casualties except the acts of God and of the public enemy. In this sense, it is sufficiently settled by adju- dication, and it is plain in reason, that they are not common carriers. A message needs to be manipulated and copied, as a package of goods does not. The carrier of goods forwards the exact thing given him ; the transmitter of a message sends 1 Ante, § 1057-1062. Ind. 12 ; Westeni Union Tel. ». Brown, 2 Bartlett v. Western ITnion Tel. 62 108 Ind. 538 ; Western Union Tel. v. Maine, 209, 221 ; Western Union Tel. Steele, 108 Ind. 163 ; Western Union V. Ferguson, 57 Ind. 495 ; Western Tel. v. Kinney, 106 Ind. 468 ; Western Union TeL v. Fatman, 73 Ga. 285 ; Union Tel. v. Mossier, 95 Ind. 29 ; Little Rock, &c. Tel. ■». Davis, 41 Ark. Western Union Tel. v. Meredith, 95 79 ; We.stem Union Tel. v. Buchanan, Ind. 93 ; Western Union Tel. v. Reed, 35 Ind. 429 ; Western Union Tel. v. 96 Ind. 195 ; Western Union Tel. v. Hamilton, 50 Ind. 181 ; Grinnell v. Harding, 103 Ind. 505 ; Ellis v. Amer- Westem Union TeL 113 Mass. 299 ; lean TeL 13 Allen, 226. Western Union Tel. tf. Pendleton, 95 572 CHAP. LI.] MAIL, TELEGRAPH, TELEPHONE. § 1206 a copy — what he deems to be its likeness. In operating the electric machinery, skill is required, unlike what takes place in putting a box of goods upon a freight car. The thing con- tracted for is a mechanical result. So that the rule in the common carriage of freight does not apply. And especially is the suggestion, sometimes met with, that the telegraph com- pany is a bailee, unfounded. A bailee is to pass along, or deliver back, the exact unaltered thing put into his hands ; ^ while the telegraph company keeps the thing, and sends to its destination a substitute. But there are common carriers of things not merchandise, and their responsibilities vary with the thing. Thus, the common carrier of passengers is not an insurer, he is responsible only for due care.^ And, in reason, comparing the position of the telegraph company with that of the common carrier, such company is a common carrier, not of goods, not of passengers, not of cattle, but of words, deliv- ered to him to be transmitted in copy. Casualties beyond his control, liable to come from the condition of the atmos- phere, from a latent defect in the machinery, or from some not to be anticipated lack of perfection in the transmitting servant, may result in an imperfect performance, and he does not guarantee perfection. But his guaranty and responsibil- ity hold him and his servants to the degree of carefulness * which ascends and descends with the greater or less magni- tude of the interest involved and of the ill consequences of a miscarriage. Within which rule, the carefulness required of him will necessarily a good deal vary with the circumstances. And such is believed to be the result, not of a single decision, but of the adjudications and utterances of the courts viewed as a whole.* Thus, — 1 Bishop Stat. Crimes, § 423. ion Tel. 62 Maine, 209 ; La Grange v. 2 Ante, § 1063, 1064. Southwestern Tel. 25 La. An. 383 ; Marr 8 Ante, § 1064 ; post, § 1209. ■». Western Union Tel. 85 Tenn. 529 ; * Consult and compare, among other "Western Union Tel. v. Meek, 49 Ind. cases, Leonard v. New York, &c. Tel. 53 ; Western Union Tel. v. Cohen, 73 41 N. Y. 544 ; Bittenhouse v. Inde- Ga. 522 ; Pennington v. Western Un- pendent Line of Tel. 44 N. Y. 263 ; ion Tel. 67 Iowa, 631 ; Womack v. Baldwin v. United States Tel. 45 N. Y. Western Union Tel. 58 Texas, 176 ; 744 ; Pinckney v. Western Union Tel. Abraham v. Western Union Tel. ,23 19 S. C. 71 ; Bartlett v. Western Un- Fed. Eep. 315 ; Western Union TeL v. 573 § 1208 LOCOMOTION OP PERSONS AND THINGS. [BOOK VI. § 1207. TransmisBion — PromptnesB. — A telegraph company, if it fails to transmit a message, or to do it with reasonable promptness, is, unless excused by having employed due care- fulness, or for some other good cause, answerable in damages to a party injured.^ And the sender's contributory negli- gence, as in other classes of cases,^ will defeat his claim ; for example, it was so where the delay was caused by a too in- definite address, which, though the company called his atten- tion to it, he did not rectify.^ So likewise, if the person addressed is a guest in a hotel, the company will not be re- sponsible for the hotel clerk's delay in passing it to him.* Again, — § 1208. Repeating. — Our telegraph companies commonly notify their patrons, and ordinarily by a condition printed on the blanks upon which messages are to be written, that, to secure accuracy, each important message should be repeated, — that is, transmitted back from the station of its destina- tion, to be verified by the original, — for which service an additional compensation is charged.^ It is plain in reason, and quite in accord with the current of the authorities, that, after this notification, the sending of a message not to be re- peated is equivalent to declaring it not important ; so, within the rule stated in the last section, requiring of the transmitter only a moderate degree of care. Yet it does not absolve the company from responsibility for the lack of so much of care Carew, 15 Mich. 525 ; Western Union Tel. 6 Daly, 200 ; Western Union Tel. Tel. fl. Fontaine, 58 Ga. 433 ; De Butte B. v. Valentine, 18 Bradw. 57; Western New York, &c. TeL 1 Daly, 547 ; Breese Union Tel. v. Fatman, 73 Ga. 285 ; V. United States Tel. 45 Barb. 274 ; Western Union Tel. v. Graham, 1 Colo. Bimeyt).NewYork,&c. Tel.18Md.341. 230; Beaupre o. Pac. &c. Tel. 21 1 Western Union Tel. v. Fontaine, Minn. 155 ; Daniel v. Western Union 58 Ga. 433 ; Merrill v. Western Union Tel. 61 Texas, 452 ; Western Unioh Tel. 78 Maine, 97 ; Stnart v. Western ' Tel. v. Reynolds, 77 Va. 173 ; Parks v. Union Tel. 66 Texas, 580 ; Bodkin d. Alta, &e. Tel. 13 Cal. 422 ; Bryant v. Western Union Tel. 31 Fed. Eep. 134 ; American Tel. 1 Daly, 575. First Nat. Bank v. Western Union Tel. ^ ^nte, § 458-470. 30 Ohio State, 555 ; Daughtery v. Amer- ^ Western Union Tel. v. McDaniel, ican Union Tel. 75 Ala. 168 ; Western 103 Ind. 294. Union Tel. v. Scircle, 103 Ind. 227 ; * Western Union Tel. «. Trissal, 98 Julian V. Western Union Tel. 98 Ind. Ind. 566. 327; Logan v. Westeni Union Tel. 84 ^ Foraspecimenof the form, see West- Ill. 468 ; Sprague v. Western Union em Union TeL v. Carew, 15 Mich. 525. 574 CHAP. LI.] MAIL, TELEGBAPH, TELEPHONE. § 1209 as the circumstances, thus explained, demand.^ Further as to which, — § 1209. Negligence. — -Bearing in our minds that negligence is the absence of the greater or less care which the particular circumstances demand,^ and that carefulness is a duty im- posed both by nature and by law on men for the protection of one another, we have the further proposition, assented to by most though not quite all courts, as already explained,^ that any bargaining by which one person releases another from responsibility for a negligent act is void as contrary to the policy of thp law. , Now, our telegraph companies, the same as common carriers and, indeed, all other persons possessed of the natural selfishness of mankind, are constantly striving to release themselves from the duty of carefulness to others. And they have resorted to this condition about repeating as a means of freeing themselves from the duty as to un- repeated messages, or of reducing their responsibility to a mere nominal sum. To the extent stated in the last sec- tion, the effort should be held effectual, but no further. The decisions on the question are quite variant ; and, for the reason already stated,* the author simply refers to some of the leading or later ones, not proposing to thread their windings.^ 1 See the cases cited in the next Ga. 299 ; Western Union Tel. v. Neill, section. 57 Texas, 283 ; White v. Western Un- 2 Ante, § 436-441, 1064, 1094, 1116, ion Tel. 14 Fed. Rep. 710 ; Pegram v. 1206. Western Union Tel. 97 N. C. 57 ; Hib- " Ante, § 1074-1076. hard v. Western Union Tel. 33 Wis. * Ante, § 1204. 558 ; Eedpath v. Western Union Tel. ' Western Union Tel. v. Tyler, 74 112 Mass. 71 ; Breese ■». United States 111. 168 ; Western Union Tel. v. Harris, Tel. 48 N. Y. 132 ; True v. Intema- 19 Bradw. 347 ; Western Union Tel. v. tional Tel. 60 Maine, 9 ; Candee v. Buchanan, 35 Ind. 429 ; Western Un- Western Union Tel. 34 Wis. 471 ; ion Tel. v. Graham, 1 Colo. 230 ; West- Sweatland v. Illinois, &o. Tel. 27 Iowa, era Union Tel. v. Shotter, 71 Ga. 760 ; 433 ; Tyler v. Western Union Tel. 60 Western Union TeL v. Cohen, 73 Ga. 111. 421 ; Xassiter v. Western Union 522 ; Western Union Tel. v. Meek, 49 Tel. 89 N. C. 334 ; Passmore v. West- Ind. 53 ; Bartlett v. Western Union era Union Tel. 28 Smith Pa. 238 ; Tel. 62 Maine, 209 ; Baldwin v. United Sprague v. Western Union Tel. 6 Daly, States Tel. 45 N. Y. 744 ; Western Un- 200 ; Jones v. Western Union Tel. ion Tel. v. Brown, 58 Texas, 170 ; Hart 18 Fed. Rep. 717 ; Thompson v. West- V. Western Union Tel. 66 Cal. 579 ; era Union Tel. 64 Wis. 531 ; Grin- Westera Union Tel. v. Blanchard, 68 nell v. Western Union Tel. 113 Mass. 675 § 1211 LOCOMOTION OP PERSONS AND THINGS. [BOOK VI. § 1210. Other Conditions, — made by the company and as- sented to by the senders of messages, are valid or not accord- ing to their nature, — questions into which it is not proposed further to enter.^ § 1211. To whom Liable — (Uses of Thinking). — In an English case, an important message had been so changed by the carelessness of the company that it appeared as addressed and was delivered to one for whom it was not meant, and as coming from a person other than the real writer — wrong at both ends. And it happened so completely to fit the condi- tions of the two telegraph-made fictitious persons, that, being acted upon, great loss came to the party who received it. He sued the company ; but the court could not discern any priv- ity of contract between it and him, or any duty it owed him, therefore refused redress.^ This case shows, among other things, how much counsel and court may lose by not thinking. Said Bramwell, L. J. : " The general rule of law is clear that no action is maintainable for a mere statement, although un- true, and although acted on to the damage of the person to whom it is made, unless that statement is false to the knowl- edge of the person making it.^ This general rule is admitted by the plaintiff's counsel, and prima facie includes the pres- ent case." And he goes on to show that the case is not within an exception which had been claimed by counsel.* Now, in truth, as the report shows, the telegraph company knew from whom the message came, and to whom it was by the sender addressed. The knowledge of its receiving agent 299 ', Westem Unioa Tel. v. Adams, 87 Pa. 83 ; Cole v. "Westeru Union Tel. 33 Ind. 598 ; Clement ». Western Union Minn. 227. Tel. 137 Mass. 463. " Dickson v. Renter's Tel. 2 C. P. D. 1 Heimann v. Western Union Tel. 62, affirmed 8 C. P. D. 1. 57 Wis. 562 ; Young «. Westem Union ' In the interest of accuracy, though Tel. 65 N. Y. 163 ; Western Union not important to the Tiew I shall take Tel. V. Msall, 63 Texas, 668 ; Westem in the text, I will observe that, however Union Tel. v. McGuire, 104 Ind. 130 ; the law may he in England, it is oer- Westem Union Tel. ■». Jones, 95 Ind. tainly not precisely so with us. And I 228 ; Westem Union Tel. ». Meredith, have ventured to set down the English 95 Ind. 9S ; Massengale v. Westem Un- rale as in accord with the American, ion Tel. 17 Mo. Ap. 257 ; Hewlett v. It is stated, ante, § 330. Westem Union Tel. 28 Fed. Sep. 181 ; * 8 C. P. D. at p. 5. »" Wolf 1). Westem Union Tel. 12 Smith, 576 CHAP. LI.] MAIL, TELEGRAPH, TELEPHONE. § 1212 was its knowledge ; ' consequently, when by the same or any other agent it wrote the two wrong names, one at each end, and delivered it to the person for whom it was not meant, it knew it was making to the person who received it an untrue statement. This case was heard first in the Common Pleas Division, then in the Court of Appeal ; and there was not a counsel or a judge who would not have admitted this fact, stated in both reports, to be in it, if he had done but a very small amount of thinking. Thus the suit miscarried, and a redress plainly due was refused. The books, English and American, are full of cases of this nature, and of those wherein judges have laid down erroneous rules of law, con- trary to what they would have done had but a suggestion of some obvious thing been made by counsel. The lesson where- from may be stated with a brevity commonly despised by those who look only into the reports for the law, never into their own heads, and seldom into any elucidations of legal reasoning, — Think. To continue, — § 1212. More as to whom Liable. — Another English case holds, in line with this one, that, if the company by its care- lessness alters a message to the injury, not of the sender, but of the receiver, there is no privity of contract between it and the latter, and it is not liable.^ But by the settled law, at least of this country, the one on whom the sender might be conferring a benefit was entitled to avail himself of it.^ Hence he should be permitted to maintain the suit. And so, in like cases, our courts, contrary to the English, hold.* And there is another view : any one who so negligently conducts his own affairs as to harm another is answerable to him in damages.* The person to whom the company carries a mes- sage is not a trespasser, he is lawfully at the place ; ^ and, assuming that there is no privity of contract between it and » Compare with the latter part of burg, 11 Casey, Pa. 298 ; Markel v. ante, § 1096. Western Union Tel. 19 Mo. Ap. 80 ; " Playford v. United Kingdom Elec. La Grange v. Southwestern Tel. 25 La. Tel. Law Rep. 4 Q. B. 706. An. 383. » Bishop Con. § 1219. « Ante, § 98, 104, 115, 150, 436, * Aiken v. Western Union Tel. 5 1074. S. C. 358 ; New York, &c. Tel. i.. Drj'- » Ante, § 1036, 1092, 1118. 37 577 § 1214 LOCOMOTION OP PERSONS AND THINGS, [BOOK VI. bim, still, under the doctrine of tort, it owes him the duty so to conduct its own affairs as not, by its negligence, or by its fraud, to deliver to him a false message to his injury.^ III. Bi/ Telephone. § 1213. General. — A telephone company is a species of telegraph company, and is within statutes on the latter sub- ject.2 It has been deemed, therefore, a sort of common car- rier ,8 and it may not arbitrarily refuse its facilities to a person complying with its rules.* It is, to a degree probably not yet defined in full, subject to legislative regulation.^ We have too few adjudications to render a continuation of these eluci- dations desirable. § 1214. The Doctrine of this Chapter restated. Telegraph companies, wherein may be included telephone companies, are common carriers, not of goods, but of words. They are not, like common carriers of goods, but more nearly resembling those of passengers, insurers of the safety of the thing sent. Their liability, therefore, comes simply from neg- Egence ; not ordinarily, perhaps never unless they expressly agree to insure, from non-negligent miscarriage. The degree of carefulness required of them varies with the magnitude of the interest and of the consequences of a mistake. The mails are transported by the government. It is not answerable to a private person for any misfeasance therein. But the post- master, or a clerk, or other fellow-officer may be required to compensate a person injured by his individual negligence, or by that of a servant, yet not l^ that of a sworn clerk or other fellow-officer. J Elwood V. Western Onioli Tel. 45 Md. 399 ; ■Wisconsin Telepli. v. Osh- N. Y. 549. kosh, 62 Wis. 32. 2 ittonigy.(}eneialii. Edison Telepli. 'Central Fnion Teleph. v. Brad- 6 Q. B. D. 244 ; Franklin v. Northwest- bury, 106 Ind. 1. em Teleph. 69 Iowa, 97 ; Chesapeake, * The State v. Nebraska Teleph. 17 &C. Teleph. o. Baltimore, &o. Tel. 66 Neb. 126. s Hockett V. The State, 105 Ind. 260. 678 CHAP. Ur.] INJURIES BY AND TO ANIMALS. § 1216 BOOK VII. SPECIAL TOPICS AND EST REVIEW. CHAPTER LII. INJURIES BY AND TO ANIMALS. § 1215, 1216. Introduction. 1217-1219. Transportation of Animals. 1220-1229. Bights and Liabilities of Owners. 1230,1231. Wild Animals. 1232. Doctrine of Ciiapter restated. § 1215. What for this Chapter. — The Subject of this chap- ter would admit of expansion into great numbers of minor topics ; conducting us backward over ground already trodden, and onward through whatever remains of the entire field of non-contract right and wrong. For the lower animals consti- tute in part the companions, the servants, and the property of man. And wherever he is, they are. Moreover, such expan- sion would introduce us to multitudes of statutes, differing in the several States. So wide a scope for the chapter is neither desirable nor possible. Therefore we shall endeavor only to pick up a few threads of doctrine, reserved out of the eluci- dations of the preceding chapters, to be presented in their order in this place. § 1216. How divided. — We shall consider, I. The Trans- portation of Domestic Animals ; II. The Rights and Lia- bnities of the Owners of Domestic Animals ; III. Wild Animals. 679 § 1219 SPECIAL TOPICS AND IN REVIEW. [BOOK TH. I. The Transportation of Domestic Animals. § 1217. Compared. — The transportation of domestic ani- mals by railroads and other common carriers is simply the carriage of merchandise. Therefore it is governed by the same rules ;i which, to appearance but not in reality, are slightly modified by the special nature of this sort of freight.^ Thus,— § 1218. Defined. — The common carrier of animals is under the same obligation for their safe carriage and delivery, within a reasonable time, as the common carrier of ordinary goods ; except that he is not an insurer against injuries resulting from inherent defects in them, — such, for example, as render them unable to endure a properly conducted journey, — or from their special natures and propensities.^ This also is the rule for the carriage of other things within the same reason.* To illustrate, a common carrier is not answerable for a leakage caused by an imperfection in the bung of a cask committed with its contents to him,^ yet otherwise he insures the safe carriage of the package. Hence, — § 1219. General. — Since the doctrine of common carriers, as thus explained, applies to the transportation of domestic animals, it would be a departure from the plan of this volume to pursue the subject further. 1 Ante, § 1152. 8 Met. Ky. 51 ; Peim v. Buffalo, &c. 2 McCoy V. Keokuk, &c. Eld. 44 Eld. 49 N. Y. 204 ; Mynard «. Syra- Iowa, 424 ; Kendall v. London, &c. Ey. case, &c Eld. 71 N. Y. 180 ; Bamberg Law Eep. 7 Ex. 373 ; Gill v. Manches- v. South Carolina Eld. 9 S. C. 61 ; ter, &c Ey. Law Eep. 8 Q. B. 186, Cragin v. New York Cent. Eld. 51 196; North Pennsylvania Rid. ■». Com- N. Y. 61; Clarke v. Eochester, &c. mercial Bank, 123 U. S. 727. Eld. 4 Keman, 570 ; Indianapolis, &c. * Blower v. Gi'eat Western Ey. Law Ey. v. Jurey, 8 Bradw. 160. Eep. 7 C. P. 655, 662 (for "an insurer * lb. ; The Brig Collenbeig, 1 Black, is not liable for accidents happening 170 ; Nelson o. Woodruff, 1 Black, through the inherent vice of the thing 156 ; Ship Howard i(. Wissman, 18 insured, but only for such as happen How. U. S. 231. through adventitious causes," p. 663, * Hudson v. Baxendale, 2 H. & N. WiUes, J.); Eixford v. Smith, 52 N. H. 575 ; Cox v. London, &c. Ey. 3 Fost 355 ; South and North Alabama Eld. v. & F. 77. Henlein, 52 Ala. 606 ; Hall v. Benfro, 580 CHAP. LII.] INJURIES BY AND TO ANIMALS. § 1220 11. The Rights and Idahilities of the Owners of Domestic Animals. § 1220. Obscurities — Inaccurate Language — (Negligence). — On the subject of this sub-title, and on many other legal subjects, the books are in some degree obscure, and particular passages either seem to be or are in fact erroneous. This proceeds in part from the imperfections of our language and in part from imperfect apprehensions in the minds of those who employ it. For example, as to the common-law liability of the owners of domestic animals straying upon the unfenced land of others, we saw how, when the question came up inci- dentally in illustrating another doctrine, the English judges, in a noted case,i mistook ; assuming the responsibility to be absolute, instead of consisting of the duty to use due care to prevent an escape. In this instance it is plain that the judges did so, in fact, understand the law to be. But it is quite natural to employ words which might be misinterpreted to denote the same thing, contrary to what was meant. For illustration, the present author's statement of the doctrine in a previous section ^ might be misconstrued ; while yet, if he had so set it down as to avoid the possibility of misapprehen- sion, he would have confused the reader, on a question impor- tant to be made distinct and clear. And the same thing may be illustrated by an often-quoted passage from Blackstone. He says : " A man is answerable for not only his own tres- pass, but that of his cattle also ; for, if by his negligent keep- ing they stray upon the land of another, and much more if he permits or drives them on, and they there tread down his neighbor's herbage, and spoil his corn or his trees, this is a trespass for which the owner must answer in damages." ^ The first part of this sentence might be mistaken, and it would not be difficult to quote instances in which it has been, as declaring that the responsibility of a man for his cattle's trespass is the same as for his own, absolute. But the remaining part brings 1 Rylands v. Fletcher, as explained ^ Ante, § 801. ante, § 839, note. * 3 Bl. Com. 211. 681 § 1223 SPECIAL TOPICS AND IN REVIEW. [BOOK VH. out the true doctrine, and it governs the former part ; namely, the liability flows from the " negligent keeping " of the cattle. So that where there is no negligence there is no ground of action ; his duty is to use care, and he is not answerable for what his cattle do when not himself negligent.^ A contrary doctrine to this would overturn what is most fundamental in the entire law of non-contract right and wrong ; which, as we have had occasion in nearly every chapter of this volume to see, is, that one who carefully and circumspectly conducts his own affairs is not liable to another casually injured by the doing.^ Now, — § 1221. Doctrine defined. — The doctrine of this sub-title is, that the ownership of animals does not differ from any other ownership of personal property; but he who has the custody of an animal is liable for whatever harm it does in consequence of his negligent keeping of it, yet not for an injury inflicted by it through an inevitable accident. And he who by some wrongful act does a damage to an animal, without the owner's fault, must compensate him. Hence, — § 1222. The Doctrine of NegUgence, — explained and illus- trated in a preceding chapter,^ is the leading doctrine of our present sub-title. And it is the same, when applied to ani- mals, as to other things which are the subjects of ownership.* Thus,— § 1223. Diverse Natures. — The different natures of inani- mate things work no changes in the doctrine of negligence as applied to them respectively ; yet, when the idea takes the embodied forms which admit of being expressed in words, a marked dissimilarity not unfrequently appears. For example, 1 And see Dolph ». Ferris, 7 Watts 10 Fost. IT. H. 143 ; Blaisdell v. Stone, & S. 367, 369 ; Baldwin v. Ensign, 49 60 N. H. 507. Conn. 113, 117, 118 ; WeUs v. Howell, ^ See, for example, ante, § 673, 898, 19 Johns. 385 ; Stafford v. Ingersol, 3 and places there referred to. Hill, N. Y. 38 ; Van Leuven v. Lyke, * Ante, § 433-484. 1 Comst. 515 ; Tenant v. Golding, 1 * Ante, § 182 ; Oilman v. Noyes, Salk. 21 ; s. c. nom. Tenant v. Gold- 57 N. H. 627 ; Weide v. Thiol, 9 win, 2 Ld. Raym. 1089 ; Weymouth v. Bradw. 223 ; Wagner v. Goldsmith, Gile, 72 Maine, 446 ; Noyes v, Colhy, 78 Ind. 517 ; Fioken v. Jones, 28 CaU 618 ; Milne v. Walker, 59 Iowa, 186. 582 CHAP. LII. j INJURIES BY AND TO ANIMALS. § 1225 the places and surroundings in which it is negligence, or not, to use fire for blasting, for running a steam-boiler, or for warming the dwelling-house, all differ; ^ and we multiply words to convey the outwardly dissimilar, yet inwardly iden- tical, idea. So the differences between a horse and a block of wood, a lamb and a rocking-chair, a vicious animal and a harmless one, and numerous other dissimilitudes, create dif- ferent expressions of the doctrine of negligence, as applied to them, but no diversities in the doctrine itself. This is the same thing which we saw in respect of the common carriage of animals, compared with that of ordinary merchandise.^ Further to illustrate, 5— § 1224. Escaping from "Way. — When cattle or horses are being lawfully driven or conducted along a highway, if, differ- ing in their nature from a load of wood, they escape into ad- joining grounds and do damage, similar to what the wood might do if negligently set on fire in a heavy wind, the person in charge of them is answerable if the escape was through his negligence, otherwise he is not.^ Again, — § 1225. Vioions or not. — Most domestic animals, mingling freely with men, do them no harm. Therefore it is not a neg- ligent keeping of such an animal to permit it to go upon the public ways and other places where it is not a trespasser,* though they are frequented also by men ; and if a man is injured by the animal, it not being known to be vicious, the owner will not be responsible.^ But if, for example, the owner of a horse has notice that when at large it runs and kicks upon the sidewalks, his turning it loose in the streets of a city will be a negligent keeping ; and he will be answerable for whatever damage it does to persons and their property.^ And the doctrine is general, commonly more briefly expressed, that 1 Ante, § 831-833. * Decker v. Gammon, 44 Maine, 2 Ante, § 1217, 1218. 322. 3 MUls V. Stark, 4 N. H. 512 ; ^ Bell v. Leslie, 24 Mo. Ap. 661 ; Goodwyn v. Cheveley, 4 H. & N. 631 ; Dearth v. Baker, 22 Wis. 73 ; Cox v. Hartford v. Brady, 114 Mass. 466 ; Burbidge, 13 C. B. N. s. 430 ; Smith Amstein v. Gardner, 132 Mass. 28 ; v. Cansey, 22 Ala. 568 ; Vrooman v. Dovaston v. Payne, 2 H. BL 527 ; Cool Lawyer, 13 Johns. 339. D. Crommet, 13 Maine, 250 ; BlaisdeU « Dickson v. McCoy, 39 N. Y. 400. V. Stone, 60 N. H. 507. 583 § 1227 SPECIAL TOPICS AND IN REVIEW. [bOOE VII. the owner of any animal which he knows to be " accustomed to bite mankind," or to inflict other harm upon men or their property, will, if he does not restrain it, be compellable to pay the damage it does.^ Whatever distinctions may appear in the words of judges spoken in this sort of case, the just doc- trine in all is, that it is the duty of the owner to keep his ani- mal with a proper regard for the welfare of others, and that it is actionable negligence in him to omit the partici^ar sort and degree of care which its nature and propensities, as known by him, require. Once more, — § 1226. Pence. — As already seen, if there are no fences, and if the law requires none, it will be palpable negligence in the owner of such an animal as a horse or an ox, to turn it loose where it may stray upon the grounds of a neighbor and do damage. Hence the common-law doctrine, usually more briefly expressed, is, that the owner is answerable for his cattle's trespasses on unfenced lands.^ But when fences are built, or when the law requires them, or permits cattle to run at large, what was before negligence ceases to be such ; and other distinctions arise, into which it is not necessary here to enter.^ § 1227. Diseased Animals. — An owner who knows that his animals have a disease communicable to animals or to men,* yet permits them to run at large to the injury of other people or their animals, is answerable in damages ; for this is a neg- ligent disregard of his legal and social duties.^ We have in some of the States statutes which further extend or define this common-law doctrine.® In like manner, — 1 Spalding v. Oakes, 42 Vt. 343 ; Adams, 70 111. 291 ; Pool v. Alger, 11 Murray v. Young, 12 Bush, 337 ; Kelly Gray, 489. V. Tilton, 2 Abb. Ap. 495 ; Pickering * Ante, § 414. V. Orange, 1 Scam. 492 ; Hudson v. ^ Kemmish v. Ball, 30 Fed. Eep. Eoberts, 6 Exch. 697 ; May v. Bur- 759 ; Hite v. Blandford, 45 111. 9. See dett, 9 Q. B. 101 ; Woolf «. Chalker, Fisher v. Clark, 41 Barb. 329 ; Hawks 81 Conn. 121 ; Kittredge v. Elliott, v. Locke, 139 Mass. 205. 16 N. H. 77 ; Popplewell v. Pierce, « Harris ii. Hatfield, 71 111. 298 10 Cush. 509 ; Marsh v. Jones, 21 Kenney v. Hannibal, &c. Eld. 62 Mo. Vt. 378 ; Arnold v. Norton, 25 Conn. 476 ; Frye v. Chicago, &c. Eld. 78 111. 92. 399 ; Hatch v. Marsh, 71 111. 370 2 Ante, § 801, 839, note, 1220. Sangamon Dist. Co. v. Young, 77 111. » Ante, § 804, 806-808 ; Ozbum v. 197 ; Bradford v. Floyd. 80 Mo. 207. 584 CHAP. LII.J INJURIES BY AND TO ANIMALS. § 1229 § 1228. Injuries to Animals — are redressed on the same principles as similar injuries to other personal property.^ For example, one who hires a horse under the promise to load it with only a given weight, yet injures it by putting upon it a heavier load ;2 or hires it under the law's implied promise of good treatment,^ yet misuses it to its injury ; * or hires it for a particular purpose, then harms it by employing it for an- other,* is answerable for the damage, the same as where he does a similar injury to other personal property. § 1229. Railroad injuring or killing. — Railroad collisions with animals, whereby they are wounded or killed, are among the most common of the forms of harm to them. They occur under a great diversity of fence laws, of laws regulating their running at large, and of other relevant laws, prevailing in our respective States. The one doctrine governing these different cases is plain ; namely, that the road is responsible if harm comes to an animal from its negligent running or other negli- gence, and if the negligence of "the owner does not contribute thereto ; but, if the owner's negligence does contribute, or if the road is not itself negligent, the injury will be without recompense. Yet what is negligence and what is contribu- tory negligence will depend largely upon the fence and other similar laws of the particular State. To enter into the details would be impossible within our limited space ; nor, if it were possible, would they be of any considerable help to the reader. A few of the later cases, by reference to which others may be found, are cited in the note.* 1 Kimball v. Holmes, 60 N. H. 163 ; 8 .iZdJama. — ITashville, &c. Rid. v. Peer v. Eyan, 54 Mich. 224 ; Richards Comans, 45 Ala. 437 ; Mobile, &c. Rid. V. Sperry, 2 Wis. 216 ; Carrier v. Dor- v. Malone, 46 Ala. 391 ; Mobile, &o. ranee, 19 S. C. 30 ; Oxley v. Watts, 1 Rid. v. Williams, 53 Ala. 595 ; South T. R. 12 ; Barnes v. Chapin, 4 Allen, and North Alabama Rid. v. Hagood, 53 444. Ala. 647 ; East Tennessee, &o. Rid. v. 2 Bigg's Case, 2 Leon. 104. Bayliss, 77 Ala. 429 ; East Tennessee, 8 Ruggles V. Fay, 31 Mich. 141. &e. Rid. v. Carloss, 77 Ala. 443 ; Ala- * Com. Dig. Action upon Case for bama Great So. Rid. v. MoAlpine, 80 MLsf. A. 3 ; Frost v. Plumb, 40 Conn. Ala. 73 ; Alabama Great So. Eld. v. Ill ; Austin v. Miller, 74 N. C. 274 ; Chapman, 80 Ala. 615. Rives V. Moxham, Hob. 187 b ; Bigg's Arkansas. — Hot Springs Eld. v. Case, 2 Leon. 104. Newman, 36 Ark. 607 ; Little Book, 6 Fox V. Young, 22 Mo. Ap. 386. &o. By. v. Finley, 87 Ark. 562 ; Little 585 §1230 SPECIAL TOPICS AND IN REVIEW. [BOOK TH. III. Wild Animals. § 1230. Injuries from. — One who keeps a wild animal, of a sort likely to do mischief if let loose, must exercise in the Eock, &c. Ry. v. Trotter, 37 Ark. 593 ; Little Kock, &c. Ey. v. Henson, 89 Ark. 413; Kansas City, &c. Rid. v. Summers, 45 Ark. 295. California. — Needham v. San Fran- cisco, &c. Eld. 37 Cal. 409 ; McCoy v. CaUfornia Pac. Eld. 40 Cal. 532 ; Swee- ney V. Central Pac. Eld. 57 Cal. 15. Colorado. — Denver, &c. Ey. v. Chandler, 8 Colo. 371. Georgia. — Macon, &c. Eld. v. Ea- ter, 42 Ga. 300 ; Macon, &c. Eld. i-. Vaughn, 48 Ga. 464 ; Atlantic, &c. Eld. V. Burt, 49 Ga. 606 ; Georgia Eld. &c. Co. ■». Neely, 56 Ga. 540 ; Western, &c. Eld. ■». Steadly, 65 Ga. 263 ; Bossignoll V. Northeastern Eld. 75 Ga. 354 ; DaviS V. Central Eld. 75 Ga. 645. niiiwis. — Illinois Cent. Eld. v. Ba- ker, 47 m. 295 ; Toledo, &c. Ey. v. Parker, 49 111. 385 ; Toledo, &o. Ey. v. Darst, 51 111. 365 ; Chicago, &c. Ey. V. Harris, 54 lU. 528 ; Illinois Cent. Eld. V. Hall, 58 lU. 409 ; Chicago, &c. Eld. V. Seirer, 60 III. 295 ; Toledo, &c. Ry. V. Deacon, 63 111. 91 ; Chicago, &c. Eld. V. Bradfield, 63 111. 220 ; Ohio, &c. Ey. V. Jones, 63 111. 472 ; Paris, &c. Eld. V. MuUins, 66 111. 526 ; Eock- ford, &c. Eld. ». Linn, 67 111. 109 ; Chicago, &c. Rid. u. Haggerty, 67 111. 113 ; Eockford, &c. Eld. v. Lynch, 67 111. 149 ; Toledo, &c. Ey. v. McGinnis, 71 111. 346 ; Toledo, &o. By. v. Lock- hart, 71 ni. 627 ; Toledo, &c. Ey. v. Barlow, 71 111. 640 ; Ewing v. Chicago, &c. Eld. 72 111. 25 ; St. Louis, &c. Ey. V. Casner, 72 111. 384 ; Eockford, &c. Eld. V. Irish, 72 111. 404 ; St. Louis, &c. Ey. V. Dorman, 72 111. 504 ; Eock- ford, &c. Eld. V. Eafferty, 73 111. 58 ; Gilman, &c. Eld. v. Spencer, 76 111. 192 ; Peoria, &c. .Eld. v. Barton, 80 III. 72 ; Peoria, &c. Eld. v. Dugan, 10 Bradw. 233; Louisville, &o. Eld. v. 686 Upton, 18 Bradw. 605 ; Indiana, &c. Ey. V. Drum, 21 lU. Ap. 331. Indiana. — Jeffersonville, &c. Eld. V. Nichols, 30 Ind. 321 ; Jeffersonville, &c. Eld. V. Brevoort, 30 Ind. 324 ; Jeffersonville, &c. Eld. v. Avery, 31 Ind. 277 ; Bellefontaine Ey. v. Eeed, 33 Ind. 476 ; Toledo, &c. Ey. o. Gary, 37 Ind. 172 ; Indianapolis, &c. Eld. ». Harter, 38 Ind. 557 ; Jeffersonville, && Eld. V. Underhill, 40 Ind. 229 ; Jeffer- sonville, &c. Rid. V. Vancant, 40 Ind. 233 ; Ohio, &e. Ey. v. Cole, 41 Ind. 331 ; Cleveland, &c. Eld. ■». Swift, 42 Ind. 119 ; Jeffersonville, &c. Eld. v. Hnher, 42 Ind. 173 ; Indianapolis, &c. Eld. V. Bonnell, 42 Ind. 539 ; Indian- apolis, &c. Eld. I). Christy, 43 Ind. 143 ; Jeffersonville, &c. Eld. v. Adams, 43 Ind. 402 ; Toledo, &c. Ey. v. Owen, 43 Ind. 405 ; Pittsburgh, &c. Ey. o. Bowyer, 45 Ind. 496 ; Indianapolis, &c. Ey. ». McBrown, 46 Ind. 229 ; Jeffer- sonville, &c. Eld. V. Underhill, 48 Ind. 389 ; Toledo, &c. Ey. v. Milligan, 52 Ind. 505 ; Jeffersonville, &c. Eld. v. Lyon, 55 Ind. 477 ; Wabash Ey. v. Forshee, 77 Ind. 158 ; Louisville, &c. Eld. V. Schmidt, 81 Ind. 264 ; Louis- ville, &c. Ey. V. Goodbar, 102 Ind, 596 ; Louisville, &c. Ey. v. Thomas, 106 Ind. 10. lovM. — McNaught v. Chicago, &c. Eld. 30 Iowa, 336 ; Stewart v. Burling- ton, &c. Eld. 82 Iowa, 561 ; Flattes v. Chicago, &c. EJd. 35 Iowa, 191 ; Cleave- land V. Chicago, &c. Eld. 35 Iowa, 220 ; Searles v. Milwaukee, &c. Ey. 35 Iowa, 490 ; Henderson v. St. Louis, &c. Eld. 36 Iowa, 387 ; Jackson v. Chicago, &c Ey. 36 Iowa, 451 ; Sandham o. Chicago, &c. Eld. 38 Iowa, 88 ; Correll V. Burlington, &c. Rid. 38 Iowa, 120 ; Edson V. Central Eld. 40 Iowa, 47; Finch V. Central Eld. 42 Iowa, 804 ; CHAP. LII.] INJURIES BY AND TO ANIMALS. §1230 keeping a care proportioned to the danger and consequences of a misfeasance.^ The doctrine is the same as that just Kuhn V. Chicago, &c. Bid. 42 Iowa, 420 ; Downing v. Chicago, &c. Eld. 43 Iowa, 96 ; Tyson v. Keokuk, &c. Eld. 43 Iowa, 207 ; Tredway v. Sioux City, &c. Ey. 43 Iowa, 527 ; Young v. St. Louis, &o. Ey. 44 Iowa, 172 ; Van Horn V. Burlington, &c. Ey. 59 Iowa, 33 ; Earidon v. Central Iowa Ey. 65 Iowa, 640 ; Brentner v. Chicago, &c. Ey, 68 Iowa, 530. Kansas. — Union Pac. Ey. v. Eol- lins, 5 Kan. 167 ; Missouri Pac. Eld. v. Leggett, 27 Kan. 323 ; Atchison, &c. Eld. V. Cash, 27 Kan. 587 ; Missouri Pac. Ey. V. Wilson, 28 Kan. 637. Kentucky. — Louisville, &o. Eld. v. Brown, 13 Bush, 475. Maine. — Grilman v. European, &c. Ey. 60 Maure, 235 j Wilder v. Maine Ont. Eld. 65 Maine, 332. Maryland. — Baltimore, &c. Eld. v. Mulligan, 45 Md. 486 ; Annapolis, &c. Eld. V. Baldwin, 60 Md. 88. Massachusetts. — Sawyer v. Vermont, &c. Eld. 105 Mass. 196 ; KeUher v. Connecticut Eiver Eld. 107 Mass. 411 ; Maynard v. Boston, &c. Eld. 115 Mass. 458 ; McDonnell v. Pittsfield, &o. Eld. 115 Mass. .564 ; Darling v. Boston, &c. Eld. 121 Mass. 118 ; Leonard v. Fitch- burg Eld. 143 Mass. 307. Michigan. — Flint, &c. Ey. v. Lull, 28 Mich. 510 ; Chicago, &c. Ey. v. Campbell, 47 Mich. 265 ; Detroit, &c. Ey. V. Hayt, 55 Mich. 347 ; Lemon ■». Chicago, &c. Ey. 59 Mich. 618. Minnesota. — Locke v. First Division, &c. Rid. 15 Minn. 350 ; Mathews v. St. Paul, &c. Eld. 18 Minn. 434 ; Fritz v. First Division, &c. Eld. 22 Minn. 404 ; Fleming v. St. Paul, &c. Eld. 27 Minn. Ill ; Watier v. Chicago, &c. Ey. 31 Minn. 91 ; Greeley v. St. Paul, &c. Ey. 33 Minn. 136 ; Blais v. Minneapolis, &c. Ey. 34 Minn. 57. Mississippi. — • Memphis, &c. Eld. v. Blakeney, 43 Missis. 218; Eaiford v. Mississippi Cent. Eld. 43 Missis. 233 ; Memphis, &c. Eld. v. Orr, 43 Missis. 279 ; Chicago, &c. Eld. v. Jones, 59 Missis. 465 ; Tyler v. Illinois Cent. Eld. 61 Missis. 445 ; Illinois Cent. Eld.' v. Walker, 63 Missis. 13 ; Illinois Cent. Eld. ». Weathersby, 63 Missis. 681; Newman v. Vicksburg, &c. Eld. 64 Missis. 115 ; Yazoo, &c. Eld. v. Brum- field, 64 Missis. 637. Missoun. — Iba v. Hannibal, &c. Eld. 45 Mo. 469 ; Grau v. St. Louis, &c. Ey. 54 Mo. 240 ; Ells v. Pacific Eld. 55 Mo. 278 ; Crafton v. Hannibal, &c. Eld. 55 Mo. 580 ; Morris v. St. Louis, &c. Ey. 58 Mo. 78 ; Owens v. Hannibal, &c. Eld. 58 Mo. 386 ; Stone- man V. Atlantic, &c. Eld. 58 Mo. 503 ; Cook V. Hannibal, &c. Eld. 63 Mo. 397 ; Swearingen v. Missouri, &c. Rid. 64 Mo. 73 ; Eobertson v. Atlantic, &c. Rid. 64 Mo. 412 ; Jackson v. St. Louis, &c. Ry. 74 Mo. 526 ; Wallace v. St. Louis, &c. Ey. 74 Mo. 594 ; Goodwin v. Chicago, &c. Eld. 75 Mo. 73 ; Scott v. St. Louis, &c. Ry. 75 Mo. 136 ; Turner v. St. Louis, &c. Ey. 76 Mo. 261 ; Schulte v. St. Louis, &c. Ry. 76 Mo. 324 ; Young «. Hannibal, &c. Rid. 79 Mo. 336 ; Jantzen v. Wabash, &c. Ry. 83 Mo. 171 ; Ellis V. Missouri Pac. Ry. 83 Mo. 372 ; Laney v. Kansas City, &o. Eld. 83 Mo. 466 ; Binicker v. Hannibal, &e. Rid. 83 Mo. 660 ; Stanley v. Missouri Pac Ey. 84 Mo. 625 ; Peddicord v. Missouri Pac. Ey. 85 Mo. 160 ; Milbum V. Kansas City,"&c. Rid. 86 Mo. 104 ; Hines v. Missouri Pac. Ey. 86 Mo. 629 ; Lepp V. St. Louis, &c. Ey. 87 Mo. 139 ; Wilson V. St. Louis, &c. Ey. 87 Mo. 431 ; Townsley v. Missouri Pac. Ey. 89 Mo. 31 ; Donovan v. Hannibal, &c. Eld. 89 Mo. 147 ; Foster v. St. Louis, &e. Ey. 90 Mo. 11 6 ; Smith v. St. Louis, &c. Ey. 91 Mo. 58 ; Mayfield v. St. Louis, &c. Ey. 91 Mo. 296 ; Holland v. West End Narrow Gauge Ey. 16 Mo. Ap. 1 Ante, § 1064, 1116, 1129. 587 1230 SPECIAL TOPICS AND IN EEVIEW. [BOOK VII. explained of the keeping of a domestic animal known to be vicious.^ But the knowledge of the vicious nature is included in the knowledge that the animal is of a dangerous species, and it need not be separately shown ; ^ as, says Lord Hale, "if it be a beast that is ferm naturae, as a lion, a bear, a wolf, yea, an ape or monkey."^ The nature and extent of the care will plainly vary with the sort of animal and the surroundings. It appears to have been once deemed that a 172 ; Vaughn v. Missouri Pac. Eld. 17 Mo. Ap. 4 ; Moreland v. Missouri Pac. By. 17 Mo. Ap. 77 ; Dorman v. Mis- souri Pac. Ey. 17 Mo. Ap. 337 ; Apitz V. Missouri Pac. Ry. 17 Mo. Ap. 419 ; Boggs V. Missouri Pac. Ry. 18 Mo. Ap. 274 ; Harian v. Wabash, &c. Ry. 18 Mo. Ap. 483 ; White v. St. Louis, &c. Rid. 20 Mo. Ap. 564 ; Judd v. Wabash, &c. Ry. 23 Mo. Ap. 56 ; Long r. St. Louis, &e. Ry. 23 Mo. Ap. 178 ; Hoff- man V. Missouri Pac. Ry. 24 Mo. Ap. 546 ; Carpenter v. St. Louis, &c. Ry. 25 Mo. Ap. 110 ; Smith ». St Louis, &c. Ry. 25 Mo. Ap. 113; Grant v. Hannibal, &c. Ry. 25 Mo. Ap. 227 ; Mason v. Missouri Pac. Ry. 25 Mo. Ap. 473 ; Pucket v. St. Louis, &c. Ry. 25 Mc. Ap. 650. Nebraska. — Burlington, &c. Rid. v. Webb, 18 Neb. 215. New Hampshire. — Hook v. Worces- ter, &c. Rid. 58 N. H. 251 ; Ciessey v. Northern Rid. 59 N. H. 564. New York. — Spinner v. New York Cent. &c. Rid. 67 N. Y. 153 ; Sheaf v. Utica, &c. Rid. 2 Thomp. & C. 388. North Carolina. — Jones v. North Carolina Rid. 70 N. C. 626; Page d. North Carolina Rid. 71 N. C. 222; Proctor !'. Wilmington, &c. Rid. 72 N. C. 579 ; Pippen «. Wilmington, &c. Rid. 75 N. C. 54 ; Roberts v. Richmond, &c. Bid. 88 N. C. 560 ; Farmer «. Wilmington, &c. Eld. 88 N. C. 564; Winston v. Raleigh, &c. Rid. 90 N. C. 66 ; Wilson v. Norfolk, &c. Rid. 90 N. C. 69 ; Boing ». Raleigh, &c. Rid. 91 N. C. 199 ; Snowden v. Norfolk So. Rid. 95 N. C. 93. 588 Ohio. — Sandusky, &c. Eld. v. Sloan, 27 Ohio State, 341 ; Pittsburgh, &c. By. V. McMillan, 37 Ohio State, 554 ; Pitts- burgh, &c. By. o. Smith, 38 Ohio State, 410. South Carolina,. — Danner v. South Carolina Bid. 4 Eich. 329 ; Roof -v. Charlotte, &c. Rid. 4 S. C. 61 ; Rowe ». Greenville, &c. Rid. 7 S. C. 167 ; Jones V. Columbia, &c. Rid. 20 S. C. 249 ; Simkins v. Columbia, &c. Rid. 20 S. C. 258. Tennessee. — Nashville, &c. Rid. v. Thomas, 5 Heisk. 262 ; Louisville, &c. Bid. V. Stone, 7 Heisk. 468 ; East Ten- nessee, &c Bid. V. Feathers, 10 Lea, 103. Texas. — Houston, &c. Ry. i'. Terry, 42 Texas, 451 ; International, &c. Bid. V. Cocke, 64 Texas, 151. Vermont. — Bemis v. Connecticut, &c. Bid. 42 Vt. 375 ; Congdon v. Cen- tral Vermont Rid. 56 Vt. 390. Virginia. — Trout v. Virginia, &c. Rid. 23 Grat. 619 ; Orange, &c. PJd. v. Miles, 76 Va. 773. West Virginia. — Heard v, Chesa- peake, &c. Ry. 26 W. Va. 455. Wisconsin. — Jones v. Sheboygan, &c. Rid. 42 Wis. 306 ; Curry v. Chi- cago, &c. Ry. 43 Wis. 665. 1 Ante, § 1225. « Besozzi ». Harris, 1 Fost. & F. 92 ; Michell V. AUestry, 3 Keb. 650 ; Jen- kins V. Turner, 3 Salk. 13, 1 Ld. Raym. 109, 2 Salk. 662 ; May v. Burdett, 9 Q. B. 101 ; Soribner «. Kelley, 88 Barb. 14 ; Laverone v. Mangianti, 41 Cal. 138. » 1 Hale P. C. 430. CHAP. LII.] INJURIES BY AND TO ANIMALS. § 1232 person who has a wild beast is absolutely responsible for its mischief, though chargeable with no negligence.^ But plainly the doctrine is otherwise now. Collections of wild animals, including the most dangerous, abound in our largest cities ; and they are carried through the country for public exhi- bition. Everywhere and by all they are tolerated. And it requires no argument to show that, while t^ duty of their keepers is extremely grave, demanding of them the highest diligence, they are not outlaws from the protection of the universal rule which exempts men from liability for inevitable accidents. § 1231. Injuries to. — In the chapter on " Hunting and Fishing," further on, something will be said of ownership in wild animals. If, in law, one owns a wild animal, plainly he can have redress for a damage done to it ; not otherwise. § 1232. The Doctrine of this Chapter restated. Domestic animals are personal property. The owners and keepers of them are under the same liabilities and are entitled to the same rights, in respect of them, of their keeping, and of their carriage, as the owners of other personal property. The natures of this property differ more or less from those of dry goods, of groceries, of grain, of coal, of medicine, and of in- toxicating drinks. And, to superficial sight, the law varies with the nature of the thing ; to the deeper and clearer sight, it does not, but the changing things illumine and render J Thu3 Lord Hale says, that, in the ings of our jurisprudence, a considera- case of a " wild beast, or in case of a ble number of things which have now bull or cow that doth damage where become clear stood before the judicial the owner knows of it, he must at his mind in a mist. This, I presume, we peril keep him up safe from doing hurt ; may reckon as one of them. If I deemed for, though he use his diligence to keep it a judicious use of the pages of this him up, if he escape and do harm the book, I should here endeavor to trace owner is liable to answer damages." 1 this sort of thing down from the early Hale P. C. 430. Probably this doc- darkness, through the increasing light, trine may be regarded as a branch of an to the present time ; showing, all along old one now exploded, another branch the way, the mist-spots more and more whereof related to fire as explained in illumined, yet not, even at the present a note in --^ preceding chapter. Ante, day, absolutely and perfectly dispelled. § 833, note. During the early dawn- 689 § 1232 SPECIAL TOPICS AND IN BEVIEW. [BOOK VII. beautiful the unvarying law. This chapter is an attempt to illustrate this truth. Yet it does not ignore the fact that the books contain many passages in which this truth is either fuUy or partially ignored. Those passages are not law ; be- cause the law cannot be a contradiction, and because the doe- trine adverse to them is established beyond controversy or even cavil. The opinions of our judges would be unsatisfac- tory if they contained mere conclusions, omitting all mention of the reasons therefor. And still the conclusions, not the reasons, are the law of the court. When the decisions are reviewed and wrought into text-law, this rule is reversed. The reasons — not necessarily those stated by the judges, but the real ones — now lead; they become the text-law, while the decisions constitute a sort of foundation whereon this law rests, —^things to be more fully explained in the closing chap- ters of this volume. 590 CHAP. LIII.] SPECIALLY OP DOGS. § 1234 CHAPTER Lin. SPECIALLY OP DOGS. § 1233. Anomalous. — The position of dogs before the law is anomalous. Almost the only thing to be safely said of them, in view of all the shifting circumstances in which they may be placed, is, that they are animals ; and that any adjec- tive possible to be set before the word " animals " will spoil the truth of the expression. They are and are not property, are and are not domestic creatures, are and are not wild ones, are and are' not public nuisances, and so to the end. The common law has its ideas of them, legislation has its different and shifting ideas. And it is the same outside of the law ; as, some forms of philanthropy seek chiefly the good of men, others regard dogs as meriting the highest protection, and frightened babies tottering in their first attempts to walk as the proper food for dogs. Selfishness pets the dog that plays with it and protects its accumulated pile ; the honest neigh- bor, whom the dog annoys, and whose family it keeps in per- petual trouble, vainly protests. We might thus go on through a long enumeration of the moral and legal adjuncts of the dog, all anomalous. But let us, instead, look more minutely at some of the particulars of the law. § 1234. Vicious, Dangerous, or not. — Within a doctrine ex- plained in the last chapter,^ the domestic dog is regarded as prima facie harmless while minglir^ with men or with other animals. So that its owner cannot be held liable in damages if, when no information that it is vicious has come to him, it wounds or kills a man or beast.^ But if he has notice, or if 1 Ante, § 1225. 430 ; Mason v. Keeling, 1 Ld. Kaym. » Kertsohacke v. Ludwig, 28 Wis. 606, 608 ; Smiths. Pelahj 2Stra. 1264 ; 591 § 1235 SPECIAL TOPICS AND IN REVIEW. [BOOK YII. otherwise he has reason to believe that his dog has a propen- sity to bite or to do mischief, he must restrain it ; and, should he not, he will be responsible for the damage it inflicts.^ The notice need not be that the dog has actually done injury, anything evincing its vicious disposition will suffice.^ But proof of a propensity to bite animals will not alone establish a propensity to bite men.^ The knowledge of a servant hav- ing the care of the dog is the master's knowledge ; * other- wise, of one not having such care." The true ground of the liability is — § 1235. Negligence. — The right to keep, in the proper cir- cumstances, a dog known to be ferocious is, by all the courts, conceded.* The true meaning of which is that, in the absence of negligence or other wrong, the keeper is neither indictable nor suable ; for to say that one has a right to do what the law will punish him for doing is to utter a contradiction. Still, in the face of this truth, there are cases which seem to lay it down that the owner's liability for injuries done by his vicious dog is something apart from the doctrine of negligence, and is absolute,'' so that no amount of carefulness will excuse him.* But this is contrary alike to reason and to other authorities. Accurately viewed, his duty is simply to exercise au extremely high care, commensurate with the grave consequences of a miscarriage ; ' for example, if a ferocious watch-dog becomes unfastened,^" or if the owner oversleeps and does not tie Anonymons, 1 Dyer, 25 b, No. 162 ; gomery v. Koester, 35 La. An. 1091 ; Dearth v. Baker, 22 Wis. 73. Flansburg v. Basin, 3 Bradw. 531. 1 MuUer v. McKesson, 73 N. Y. ' Keightllnger v. Egan, 65 111. 235. 195 ; Perkins v. Mossman, 15 Vroom, ' Baldwin v. Casella, Law Eep. 7 579 ; Partlow v. Haggarty, 35 Ind. 178 ; Ex. 325. Kelly ». Tilton, 2 Abb. Ap. 495 ; Moss ^ Twigg v. Ryland, 62 Md. 380. V. Pardridge, 9 Bradw. 490 ; Murphy v. ^ Larerone v. Mangianti, 41 Cal. Preston, 5 Mackey, 514 ; Laherty b. 138 ; Loomis ». Terry, 17 Wend. 496 ; Hogan, 13 Daly, 533 ; Boecher v. Lutz, Montgomery i^. K^oester, 35 La. An. 13 Daly, 28 ; Read v. Edwards, 17 C. B. 1091 ; Woolf v. Chalker, 81 Conn. 121 ; N. s. 245 ; Judge v. Cox. 1 Stark. 285 ; Brice v. Bauer, 108 N. Y. 428 ; Logue Buckley «. Leonard, 4 Denio, 500 ; v. Link, 4 E. D. Smith, 63. Wormley v. Gregg, 65 111. 251 ; Kight- ' Ante, § 1230 and note, linger v. Egan, 75 111. 141 ; Applebee ' MuUeru. McKesson, 7311. Y. 195 ; V. Percy, Law Rep. 9 C. P. 647. Lynch o. McNally, 7 Daly, 126. 2 Worth V. Gilling, Law Rep. 2 C. P. » Ante, § 1230. 1 ; Rider v. White, 65 N. Y. 64 ; Mont- ^ Brice v. Bauer, snpra. 592 CHAP. LIII.] SPECIALLY OP DOGS. § 1238 it,i there is negligence past ordinary explanation, and it is but common speech to say that the keeper must pay the damages. Yet if he properly secures the dog, and without his privity another person comes along and lets it loose, he is not liable.^ A mist like that thus explained has dimmed the truth of the law in a few of the cases as to — § 1236. Contributory Negligence. — Contrary to some excep- tional passages in the books, the doctrine of reason is suffi- ciently affirmed by authority, that contributory negligence will defeat the injured person's action.^ Thus, one who with- out cause or provocation kicks a dog cannot complain if it repels the aggression.* 3ut the mere familiarity of offering a piece of candy to a dog not known by him to be vicious, will not, as contributory negligence, bar the action for an injury received in return.^ A sort of contributory negligence is a — § 1287. Trespass on Owner's Premises. — Within the prin- ciple that men need not keep their premises safe for tres- passers, yet must not inflict even on them a wanton injury,® one who goes without right upon land of another, and is there bitten by a ferocious dog of the owner, may have damages or not according to the nature of ^ the particular case. The elucidations in preceding chapters will guide the reader, yet a reference to a few of the decisions will be helpful.^ § 1238. Trespass by Dogs. — One of the advantages of own- ing an ordinarily disposed dog instead of a horse appears to be, that, while the horse-owner must use care to keep his ani- mal from injuring a neighbor by a trespass,^ the dog-owner is under no corresponding duty. So long as the dog avoids get- ting a bad name, its owner, unlike the horse-owner, escapes 1 Goode V. Martin, 57 Md. 606. 6 Ante, § 845-847, 1036, 1048, 1051, 2 Fleeming v. On, 2 Macq. H. L. 1094, 1097. Cas. 14. ' Loomis v. Terry, 17 Wend. 496 ; ' Williams v. Moray, 74 Ind. 25 ; Sherfey v. Hartley, 4 Sneed, Tenn. 58 ; Wormley v. Gregg, 65 111. 251 ; Mera- Ilott v. Wilkes, 3 B. & Aid. 304, 313 ; cle V. Down, 64 Wis. 323 ; Muller v. Woolf J). Ohalker, 31 Conn. 121 ; Pier- McKesaon, 73 N. Y. 195, 200, 201 ; ret v. Holler, 3 E. D. Smith, 574 ; Curtis V. Mills, 5 Car. & P. 489. Saroh v. Blackburn, Moody & M. 505, 4 * Eeightlinger v. Egan, 65 111. 235. Car. & P. 297. " Lynch v. McNally, 73 N. Y. 8 Ante, § 1226 ; Mellvaine v. Lantz, 347. 4 Out. Pa. 586. 38 693 § 1240 SPECIAL TOPICS AND IN REVIEW. [BOOK VII. all obligation to pay for the iftischief it does if suffered to wander without its master abroad.^ But if the master is pres- ent, himself trespassing, he must pay as well for the dog as for himself.^ § 1239. stealing or Eiiiing Dog. — Says a learned judge : " At common law, property in a dog, though recognized, has always been held to be 'base,' inferior, and entitled to less regard and protection than property in other domestic ani- mals." ^ Therefore it is no offence at common law to steal a dog.* But it is actionable to take it from its owner by tres- pass, or withhold it from him, or kill it without a special excuse.^ If a dog at large has by its vicious conduct or by disease become a public nuisance, it may, at least by the bet- ter doctrine,^ be by any person killed.^ Of course, one may kill a dog in self-defence, for so he may a man.' Or, he may do it in defence of his animals or other property.® One dog attacking another, or worrying cattle, may be killed only if they cannot otherwise be parted.^" But the mere suspicion that a trespassing dog is about to injure animals or do other like mischief will not justify the killing." It has been deemed that a negligent injury to a dog, in distinction from a pur- posed one, is not actionable.^ § 1240. statutes, — in some of the States, have more or less modified the common-law doctrines. The practitioner should 1 Brown v. GUes, 1 Car. & P; 118 ; Lowell v. Gathriglit, 97 Ind. 313 ; Bins- Mason V. Keeling, 1 Ld. Baym. 606, tead v. Buck, 2 W. Bl. 1117 ; Sandys 608 ; Mitten v. Faudrye, Popham, 161 ; v. Hodgson, 10 A. & E. 472. 8. c. nom. Millen v. Fawtrey, W. Jones, « Ante, § 430-432. 131 ; Buck B.Moore, 35 Hun, 338. See ' 1 Bishop Orim. Law, § 1080, note. Beckwith v. Shordike, 4 Bur. 2092. 8 Ante, § 944. But see the majority opinion in Chunot ' Barrington ». Turner, 3 Lev. 28 ; V. Larson, 43 Wis. 536. Wadhurst v. Damme, Cro. Jac. 45 ; 2 Van Leuven v. Lyke, 1 Comst. 515, Brown v. Hobuiger, 52 Barb. 15. 517 ; Beckwith ». Shordike, 4 Bur. "• Wright v. Bamscot, 1 Saund. 84 ; 2092, 2094 ; Woolf u. Chalker, 31 Conn. s. c. nom. Wright v. Wrainscott, 1 Lev. 121 ; Green v. Doyle, 21 111. Ap. 203. 216 ; Hinckley v. Bmerson, 4 Cow. 351. And see Chunot v. Larson, 43 Wis. " Brent v. Kimball, 60 111. 211 ; 536. Livermore v. Batchelder, 141 Mass. 179. s Butler, J. in Woolf v. Chalker, 81 See Marshall v. Blackshire, 44 Iowa, Conn. 121, 127. 475. * 2 Bishop Crim. Law, § 773. ^ Jemison v. Southwestern Rid. 75 s Wright V. Bamscot, 1 Saund. 84 ; 6a. 444. 694 CHAP. LIII.] SPECIALLY OP DOGS. § 1241 look carefully into those of his own State, but it would not comport with the plan of this volume to set out here the vari- ous provisions and their interpretations. A few of the cases are referred to in the note.^ § 1241. The Doctrine of this Chapter restated. Dogs hold a special position in the law, differing in a meas- ure from that of any other animals or things. They are of a mixed wild and tame nature, and are partly property and partly not. Out of considerations like these grow the pecu- liarities of the law of dogs. The details need not be repeated. I Chimot ■». Larson, 43 Wis. 536 ; East Kingston v. Towle, 48 N. H. 57 ; Hurd V. Chealey, 55 N. H. 21 ; Lowell Elliott v. Herz, 29 Mich. 202 ; Deiiison V. Gathright, 97 Ind. 313 ; Uhlein v. v. Lincoln, 131 Mass. 236 ; Van Horn Cromack, 109 Mass. 278 ; Schaller v. v. People, 46 Mich. 183 ; Faribault v. Connors, 57 Wis. 321 ; Wilton v. Wes- Wilson, 34 Minn. 254 ; The State v. ton, 48 Conn. 325 ; Trompen v. Ver- Topeka, 36 Kan. 76 ; Jones v. Sher- hage, 54 Mich. 304 ; Hale v. Van wood, 37 Conn. 466 ; Miller v. Spaul- Dever, 67 Mo. 732 ; Swift «. Apple- ding, 41 Wis. 221 ; Carroll v. Weiler, 4 hone, 23 Mich. 252 ; Eowe v. Bird, 48 Thomp. & C. 131, 1 Hun, 605 ; Kerr v. Vt. 578 ; Grant v. Eiclser^ 74 Maine, O'Connor, 13 Smith, Pa. 341 ; Slinger 487 ; Prescott v. Knowles, 62 Maine, v. Henneman, 38 Wis. 504 ; Wright v. 277 ; Quimby v. Woodbury, 63 N. H. Clark, 50 Vt. 130. 370 ; Bemele v. Donahue, 54 Vt. 555 ; 595 § 1244 SPECIAL TOPICS AND IN REVIEW. [bOOE VII. CHAPTER LIV. HUNTING AND FISHING. § 1242, 1243. Introduction. 1244-1252. Hunting. 1253-1256. Fishing. 1257. Doctrine of Chapter restated. § 1242. Elsewhere. — This subject, in its criminal-law as- pect, and particularly as to the larceny of wild animals and fish, and statutes for the protection of fish and game, with various related topics, is fully explained by the author in his series of works on the law of crimes. Hence, — § 1243. VThat for this Chapter and how divided. — We shall not in this chapter enter into the subject with much minute- ness of detail. The general doctrines will be given as to, I. Hunting; H. Fishing. I. Hunting. § 1244. Nature of Subject — Difficulties. — There are diver- sities in the animals — a word which includes birds ^ — pur- sued and caught by man for his amusement or profit. So that what would be a proper rule for one wild creature would not necessarily be such for another of a different nature or sort. And there is a difference between lands wholly uncared-for and uninhabited, the ownership whereof is little more than nominal, and lands which, though unploughed, or wooded, are kept for what can be got out of them in the present time. So that a hunting on the former might be looked upon as differ- ent from the same thing on the latter. And rules adapted to a country like England, by the policy of whose legislation the 1 Bishop Stat. Crimes, § 1104. 596 CHAP. LI v.] HUNTING AND FISHING. § 1246 rich are given hunting privileges denied to the poor, may not be adapted to a republic like ours,' the glory of which is that the rich and the poor stand before the law on one level. Again, it is settled both in our States and in England, that there may be, in wild animals, an ownership which w'ill sus- tain a civil action, but not an indictment for the larceny of them.^ On these several questions we in this country have had but little litigation, — quite too little to enable an author to set down many doctrines on any firm basis of authority. As to the — § 1245. Ownership. — Speaking without reference to some nice distinctions between different species of wild creatures,^ an animal feroz naturce is, in its unreclaimed state, nobody's property. Killed, caged, or tamed, it is for most purposes the property of him who has thus obtained dominion over it.^ And thus we see how and why the hunter is entitled to the game which he entraps or kills. Still, — § 1246. As to Ownership of Land. — Under the common law of England, the ownership of the soil carries with it a not well defined right or quasi ownership in the wild animals thereon ; which, in general terms, may be said to be an exclu- sive privilege of reducing them to property. Therefore, in England, the rule from early times has been and is, that he who, in a trespass on the land of another, kills a wild animal there found, acquires in it no property as against the land- owner ; but the latter takes the ownership in it by virtue of his ownership of the soil.* Yet if, instead, the trespasser chases, still in trespass, the animal to the land of another per- son and kills it thereon, he takes the ownership of it as his own,^ — a proposition upon which a later case appears to have cast some doubt.® Now, — 1 2 Bishop Crim. Law, § 771-779. Lonsdale v. Eigg. 11 Exch. 654 ; Rigg ' lb., at several places. «. Lonsdale, 1 H. & If. 923 ; Blades v. » lb. ; Bishop Stat. Crimes, § 1133, Higgs, 12 C. B. n. s. 501, 8 Jur. n. s. 2 Kent Com. 348-350 ; Buster v. New- 1012, 13 C. B. N. s. 844, 9 Jur. N. s. kirk, 20 Johns. 75 ; Ulery v. Jones, 81 1040, 11 H. L. Cas. 621, 11 Jur. N. s. 111. 403 ; Fines v. Spencer, 3 Dyer, 701, 20 C. B. N. s. 214. 306 i ; Amory v. Flyn, 10 Johns. 102. « Churchward v. Studdy, 14 East, * Sutton V. Moody, 1 Ld. Eaym. 250, 249. 5 Mod. 375, 12 Mod. 144, 2 Salk. 556 j » Blades v. Higgs, supra, in the 697 § 1248 SPECIAL TOPICS AND IN REVIEW. [BOOK VII. § 1247. With UB, — the questions thus stated appear not to have been much considered ; yet it has probably not often oc- curred to hunters that the owner of the soil can lawfully deprive them of the game they kill. And even as to the trespass, we have a judicial ruling that one cannot prevent others from hunting animals ferce natures on his unenclosed and uncultivated lands.^ But, unless in exceptional circum- stances, or by force of some local law, the land-owner's control over his estate is, it is believed, not commonly deemed to be thus intermittent. And if we accept this ruling, still it does not extend to cultivated grounds, or to fenced woods, or probably to lands kept in any way for present profit and use.^ And, — § 1248. Trespass. — In general, the cases both ancient and modern agree in holding, that one who without leave goes upon another's premises ^ to hunt commits an actionable tres- pass.* Doubtless there is, certainly there ought to be, an ex- ception in favor of the destruction of those dangerous wild animals which are a universal dread and common nuisance.^ It was even the earlier doctrine in England, " settled," said Lord Mansfield, " by all the cases as far back as in the reign of Hen. VIII.," that " a man may follow a fox into the grounds of another." ® But the contrary has more recently been de- clared to be " the true view of the law ; namely, that a person has no right, in the pursuit of the fox as a sport, to come upon the land of another against his will." "> Now, — House of Lords. Sutton v. Moody, su- 244 ; Broughton v. Singleton, 2 Nott yra, is the authority upon which the & McC. 338. later adjudications proceed. There ^ Xnie, § 1244 ; Fripp v. Hasell, 1 Holt, C. J. at p. 251 of 1 Ld. Eaym. Strob. 173. { states the doctrine, as derived from the « Ante, § 13, 30, 101, 819, 823, 880. Year Books, thus : " If A starts a hare * Ante, § 1246, note ; Fripp v. Ha- in the ground of B and hunts it, and sell, 1 Stroh. 173 ; Deane ». Clayton, 7 kills it there, the property continues all Taunt. 489. the while in B. But if A starts a hare * But see, as apparently contra, in the ground of B and bunts it into Glenn ». Eays, 1 Bradw. 479. Com- the ground of C and kills it there, the pare with ante, § 430-432 ; and the property is in A the hunter ; but A is opinions in Paul v. Summerhayes, 4 liable to an action of trespass for hunt- Q. B. D. 9. ing in the grounds as well of B as of C." ^ Gundry ». Feltham, 1 T. E. 334, And see what appears to be another 337. Sutton V. Moody, 12 Mod. 145. ' Paul ». Summerhayes, supra, at I McConico v. Singleton, 2 Mill, p. 12, opinion of Coleridge, C. J. 598 CHAP. LIV.] HUNTING AND PISHING. § 1253 § 1249. Consequences of Trespass. — Should we reject the English doctrine that ownership in land draws to it the own- ership in wild animals killed upon it in trespass,^ still it seems reasonable to hold, in analogy to a rule stated in the last chapter ,2 that, when a hunter is sued for his trespass upon the land, the damages will be augmented if he is shown to have carried away animals which tlie land-owner might have turned into value. § 1250. Bees — are wild animals ; but, like many others, they may be domesticated, and then they are the property of those having dominion over them. And, if they escape, the owner may pursue and retake them.^ There is something like authority for saying that, if they dwell wild in a tree in the woods, they belong to the owner of the soil.* As to this sort of question, there is certainly ground to distinguish between them and animals of natures differing from theirs ; ^ at least, their honey, adhering to a tree, might well be deemed the property of the tree-owner. And one who, in trespass, cuts down the tree and takes the honey away, is answerable in damages.^ A stranger, by marking a bee-tree which he finds, acquires no right thereto.^ § 1251. Hunter's Rights attaching. — Mere pursuit of a wild animal gives the pursuer no property in it. His rights at- tach only when, in some way, such as by wounding, killing, entrapping, or surrounding it, he acquires over it dominion.^ § 1252. statutes — prevail in some of the States, regulating the killing of wild animals. The reader is presumed to have examined those of his own State. II. Fishing. § 1253. wua — Ownership. — Fish, in their unreclaimed condition, are within the same reason as wild animals.^ » Ante, § 1246. * Ante, § 1244. 2 Ante, § 1238 ; post, § 1253. ' Merrils v. Goodwin, supra. ' Gillet ». Mason, 7 Johns. 16 ; ' Gillet v. Mason, snpra. Merrils v. Goodwin, 1 Root, 209 ; Goff » Pierson v. Post, 3 Gaines, 175 ; V. Kilts, 15 Wend. 550. Buster v. Newkirk, 20 Johns. 76. * Ferguson v. Miller, 1 Cow. 243 ; » Ante, § 1245. Goff V. Kilts, supra. See Wallis v. Mease, 3 Binn. 546. 699 § 1256 SPECIAL TOPICS AND IN REVIEW. [BOOK VII. Caught, they are property ; in their native waters, unconfined, they are not.^ In those non-navigable waters, the ownership whereof is in the proprietor of the adjacent shores, they are, while unreclaimed, sometimes spoken of in our books as the " property " of the land-owner, or owner of the fishery, and subjects for the action of trespass.^ But it is believed to be more accurate to assign to them the status, whatever it is,^ of wild animals in respect of the owner of the soil. So that, if one takes " wild " fish in private waters, his technical wrong is the trespass to the land, and his carrying away of the fish is the aggravation explained as to game.* § 1254. Fishing in Kavigable Waters. — In the absence of any contrary statute, contract, or. otherwise, all persons have the right to take fish in all navigable waters, whether ocean, bay, or river.^ But they cannot, as a help thereto, appropri- ate any portion of the adjoining lands, or pass over them to the fishing waters.* But — § 1255. Non-navigable. — The non-navigable streams belong to the adjoining owners ; so that any person who, without their consent, goes upon them or their banks to fish, is a tres- passer.^ Now, — § 1256. statutes — Grants — Prescriptions, &o. — By legis- lative enactments, grants, prescriptions, and other means, particular fishery rights in individuals and corporations, vari- ant from the above, and differing in our respective States, have been created. A pursuit of the subject over the ground thus indicated would take us outside the sphere of the pres- ent volume. 1 2 Bishop Crim. Law, § 773, 775. Cummings, 20 Johns. 90 ; Gould v. 2 Washb. Easm. 420, referring to James, 6 Cow. 369, 376 ; Bogeis -u. Collins V. Benbury, 5 Ire. 118 ; Smith Jones, 1 Wend. 237 ; Ward ». Cres- V. Kemp, 2 Salk. 637.; Holford v. Bai- well, Willes, 265 ; Chalker v. Dickin- ley, 13 Q. B. 426. ' son, 1 Conn. 382 ; Weston v. Sampson, '» Ante, § 1246-1250. 8 Cosh. 347. 4 Ante, § 1249. ' Coolidge v. Williams, 4 Mass. 140 ; 6 Bishop Stat. Crimes, § 1128 ; War- Cortelyon v. Van Brandt, 2 Johns. 357. ren V. Matthews, 1 Salk. 357 ; Orford ' Ante, §1253 ; Bishop Stat. Crimes, ». Richardson, 4 T. E. 437 ; Carter v. § 1128 ; Carter v. Murcot, 4 Bur. 2162, Murcot, 4 Bur. 2162 ; Martin v. Wad- 2164. dell. 16 Pet. 367, 412, 414 ; Hooker v. 600 CHAP. LIV.] HUNTING AND PISHING. § 1257 § 1257. The Doctrine of this Chapter restated. Wild animals and fish, in their unreclaimed state, resemble our natural, flowing waters. Such waters are the property of nobody in particular, yet each individual may appropriate, in an orderly manner, and with a due regard for others, what he can use of them.^ But the manner of appropriation is not in the two cases the same. There does not appear to have been discovered, otherwise than through legislation, any limit to the right of one to take fish and game, as depriving another of his share. The common law draws the line where trespass begins. No man may, without leave, go upon land of another to fish or hunt. The ordinary, or non-legal, course of things in our country is not quite so, but such is the common law which, only in rare and exceptional instances, if at all, has been changed by statutes. 1 Ante, § 890. 601 § 1262 SPECIAL TOPICS AND IN REVIEW. [bOOK VII. CHAPTER LV. SPORTS, PASTIMES, AND PUBLIC EXHIBITIONS AND PERFORMANCES. § 1258. 'What for this Chapter. — It is not proposed, in this chapter, to enter into a separate discussion of the various top- ics embraced vnthin its title ; but chiefly, by way of review, to direct attention to elucidations already given. § 1259. Hunting and Fishing — are sports and pastimes ex- plained in the last chapter. § 1260. Public Ways. — How the public ways may be em- ployed for purposes other than business travel is shown in a chapter further back.^ § 1261. Shows, Theatricals, and other Public Amusements — are commonly permitted only under license from the munici- pal corporation.^ But its license to a circus does not place it under any new obligations for the safety of the ways to and from the place of performance.* § 1262. Management of Place. — Within principles already developed,* a person giving any sort of entertainment must render the place safe for his patrons, direct and arrange their seating or standing ; and, when necessary, expel any who will not conform to the reasonabl6 rules.^ An immoral or otherwise disorderly or corrupting public show is indictable at the common law.* 1 Ante, § 985, 987, 993, 1008-1011, « Morgan ». HaUowell, 57 Maine, 1014. 375. 2 Bishop Dir. & F. § 1000 ; 1 Dil. « Ante, § 846, 848, 851-854, 1086, Mun. Corp. § 291, 294 ; Boston v. 1090, 1091, 1097, 1100, 1106. 1115, Schaffer, 9 Pick. 415 ; Commonwealth 1119. V. Twitchell, 4 Gush. 74 ; Smith v. * Commonwealths. Powell, 10 PhUad. Madison, 7 Ind. 86 ; Hodges v. Nash- 180. Tille, 2 Humph. 61 ; Pike v. The State, « 1 Bishop Crim. Law, § 500, 604, 53 Ala. 419. 1145, 1146. 602 CHAP. LV.J SPORTS, PUBLIC EXHIBITIONS, ETC. § 1266 § 1263. Audience. — How, at a theatre or other meeting, the audience should behave, is explained in another place.^ § 1264. Sports — are either lawful or unlawful. We have had illustrations of both sorts, and of the consequences.^ § 1265. Martial Sports, — though not without their dangers, should and do receive a special protection from the law, in con- sideration of their benefits in preparing men for the defence of the country. But to disturb a judicial tribunal by a mili- tary parade is a contempt of court.^ § 1266. The Doctrine of this Chapter restated. Innocent recreations, amusements, and sports are not dis- countenanced but rather encouraged by the law. In all their aspects, they are treated as lawful. At the same time, they are proper and common subjects of regulation by statutes and municipal ordinances. Dangerous, corrupting, and otherwise evil sports and amusements receive no favor from the law, and some of them are even indictable. Still, in proper cir- cumstances,* a mere useless sport or entertainment will be regarded by the courts with less favor than a useful occupa- tion. These principles, operating in connection with the com- mon rules of law regulating other affairs, and applied to the statutes and ordinances which concern the particular subject, will disclose the rule whereby each individual question within this chapter is to be decided. 1 1 Bishop Crim. Law, § 542 ; 2 lb. 359, 421, 752, 987, 993, 1008-1011, § 308-310 OS. And see, ante, § 359. 1014. 2 Ante, § 64, 195, 196, 202, 321, » 2 Bishop Crim. Law, § 252. * Ante, § 421. 603 § 1269 SPECIAL TOPICS AND IN REVIEW. [BOOK Til. CHAPTER LVI. DEATH. § 1267. Iniarodnction. 1268-1270. At the Common Law. 1271-1273. Under Statutes. 1274. Doctrine of Chapter restated. § 1267. How Chapter aivided. — We shall consider this subject as to, I. At the Common Law ; II. Under Statutes. I. At the Common Law. § 1268. General. — The sphere of the present work not ex- tending to judicial procedure, it will satisfy the purposes of this brief chapter to say that the common law, as ordinarily expounded, not speaking of some doubts and nice distinctions, does not recognize the taking of life as a ground for damages to any living person.^ And there can be no suit for mutilating a dead body.^ But, — § 1269. Life after Injury. — If a period of time intervenes between the fatal injury and the death, an action will lie for what was suffered during life, yet not for the death.^ Now, — 1 Wyatt V. Williams, 43 N. H. 102, Cooper v. Witham, 1 Lev. 247, 1 Sid. 105 ; Oshom v. Gillett, Law Rep. 8 Ex. 375 ; Sherman v. Johnson, 58 Yt. 40. 88 ; Spring v. Glenn, 12 Bnsh, 172 ; " Griffith v. Charlotte, &c. Rid. 23 Holland v. Lynn, &c. Rid. 144 Mass. S. C. 25. 425 ; Lyons v. Woodward, 49 Maine, 29; * Baker v. Bolton, 1 Camp. 493 ; Carey v. Berkshire Rid. 1 Cush. 475 ; Conner v. Paul, 12 Bush, 144 ; Kellow Smith V. Sykes, Freeman, 224 ; Hig- v. Central Iowa By. 68 Iowa, 470 ; gins V. Butcher, Yelv. 89 ; Baker v. Natchez, &c. Rid. v. Cook, 63 Missis. Bolton, 1 Camp. 493 ; Chicago, &c. Bid. 38 ; Green v. Hudson River Rid. 28 V. Sohroeder, 18 Bradw. 328 ; Scheffler Barb. -9 ; Eden v. Lexington, &c. Rid. V. Minneapolis, &c. Ry. 32 Minn. 125 ; 14 B. Monr. 204 ; Lucas v. New York Dawkes v. Coveneigh, Style, 346 ; Cent. Rid. 21 Barb. 245. 604 CHAP. LVI.] DEATH. §1271 § 1270. In Reason, — at the present day, however logical these technical rules may have been when established, the killing of one, though not admitting of compensation by any- thing to be conveyed to him in the land where earth is no more, often or commonly brings pecuniary damage to persons left behind. Hence, — n. Under Statutes. § 1271. General. — At the present time, there are in most or all of our States statutes, varying in their forms, under which the living may in particular circumstances or com- monly enforce a pecuniaiy recompense for the death. It would not accord with the plan of this work to enter into their differing details. Some of the later cases under them are cited in the note.^ 1 United States. — Mobile life Ins. Co. V. Brame, 95 XJ. S. 754. Alabama. — Luke v. Calhonn, 52 Ala. 115 ; King v. Henkie, 80 Ala. 505. Arkansas. — Texas, &c. Ey. v. Orr, 46 Ark. 182. Califamia. — Leahy v. Soathem Pac. Bid. 65 Cal. 150. Colorado. — Kansas Pac. By. v. Mil- ler, 2 Colo. 442. Connectieut. — Murphy v. New York, &c. Rid. 30 Conn. 184. Florida. — Louisville, &0. Bid. v. Yniestra, 21 Fla. 700. Georgia. — Bell v. Wooten, 53 Ga. 684 ; Allen v. Atlanta Street Eld. 54 Ga. 503 ; Miller ■». Southwestern Eld. 55 Ga. 143 ; Cottingham v. Weekes, 56 Ga. 201 ; Georgia Eld. &c. Co. v. Garr, 67 Ga. 277 ; Weekes v. Cottingham, 58 Ga. 559 ; Berry v. Northeastern Eld. 72 Ga. 137 ; East Tennessee, &c. Eld. v. Hartley, 73 Ga. 5; Georgia Eld. ». Pittman, 73 Ga. 325. niinois. — Chicago, &c. Eld. v. Aus- tin, 69 IlL 426 ; Quincy Coal Co. v. Hood, 77 111. 68 ; Chicago, &c. Eld. v. Harwood, 80 111. 88 ; Litchfield Coal Co. V. Taylor, 81 lU. 590 ; Chicago v. Keefe, 114 111. 222 ; Chicago, &c. Ry. V. Carey, 115 111. 115 ; Stafford v. Eu- bens, 115 lU. 196 ; Chicago, &o. Eld. V. O'Connor, 119 111. 586 ; Chicago, &c. Ry. V. Thorson, 11 Bradw. 631 ; Gard- ner 1). Chicago, &o. Ey. 17 Bradw. 262 ; Wehr v. Brooks, 21 111. Ap. 115. Indiana. — JeSersonyille, &c. Eld. V. EUey, 39 Ind. 568 ; Beam v. Pitts- burgh, &c. Eld. 49. Ind. 93 ; Long v. Doxey, 50 Ind. 385 ; Cincinnati, &c. Bid. V. Eaton, 53 Ind. 307 ; Evansville, &c Eld. V. Wolf, 59 Ind. 89 ; Binford V. Johnston, 82 Ind. 426 ; Terre Haute, &c. Bid. V. Buck, 96 Ind. 346 ; Stewart v. Terre l^ute, &c. Eld. 103 Ind. 44 ; Mayhew v. Bums, 103 Ind. 328 ; Louis- ville, &c. Ry. V. Thompson, 107 Ind. 442 ; Fort Wayne, &c. By. ». Beyerle, 110 Ind. 100. Iowa. — Shoemaker ». Lacey, 38 Iowa, 277 ; Beems v. Chicago, &c. Ey. 67 Iowa, 435 ; Annil v. Chicago, &c. Ey. 70 Iowa, 130. Kamsas. — Kansas Pac. Ey. v. Salmon, 14 Kan. 512 ; Kansas Pac. Ey. v. Cut- ter, 19 Kan. 83 ; St. Joseph, &c. Eld. V. Wheeler, 35 Kan. 185. Kentucky. — Covington Street Ey. 605 §1272 SPECIAL TOPICS AND IN REVIEW. [BOOK VH. § 1272. The Right to Recover — under these statutes is, if the right of action is given, ordinarily limited to those cases V. Packer, 9 Bush, 455 ; Hansford d. Payne, 11 Bush, 380 ; Spring v. Glenn, 12 Bosh, 172 ; Morgan v. Thompson, 82 Ky. 383. Louisiana. — McCuhbin v. Hastings, 27 La. An. 713. Maine. — Hobbs v. Eastern Bid. 66 Maine, 572. Maryland. — Northern Cent. Ey. v. The State, 31 Md. 357 ; The State v. Pittsburgh, &c. Bid. 45 Md. 41. Massadhusettx. — Commonwealth v. Boston, &c. Bid. 121 Mass. 36 ; Kelley V. Boston, &c. Bid. 135 Mass. 448; Dietrich v. Northampton, 138 Mass. 14 ; Merrill a. Eastern Bid. 139 Mass. 238 ; Davis V. New York,. &c. Eld. 143 Mass. 301 ; Holland v. Lynn, &c. Eld. 144 Mass. 425 ; Doyle v. Boston, &c. Eld. 145 Mass. 386 ; Granger v. Boston, &c. Eld. 146 Mass. 276. Michigan. — Chicago, &c Ey. v. Bayfield, 37 Mich. 205 ; Beauchamp V. Saginaw Min. Co. 50 Mich. 163 ; Staal ». Grand Rapids, &c. Bid. 57 Mich. 239 ; Guggenheim v. Lake Shore, &c. By. 57 Mich. 488 ; Klanowski V. Grand Trunk Ey. 57 Mich. 525 ; Sheldon v. Flint, &o. Eld. 69 Mich. 172. Minnesota. — Scheffler v. Minneap- olis, &e. By. 32 Minn. 125 ; Eobel v. Chicago, &c. By. 35 Minn. 84. Mississippi. — Illinois Cent. Eld. v. Cmdup, 63 Missis. 291 ; Amos v. Mo- bile, &c. Bid. 63 Missis. 509 ; Vioks- burg, &c. Bid. v. Phillips, 64 Missis. 693. Missouri. — Matthews v. St. Louis Grain Elev. 59 Mo. 474 ; Proctor v. Hannibal, &c. Eld. 64 Mo. 112 ; White V. Maxcy, 64 Mo. 552 ; Nagel o. Mis- souri Pac. Ey. 75 Mo. 653 ; Eutter v. Missouri Pac. By. 81 Mo. 169 ; ScoviUe II. Hannibal, &c. Eld. 81 Mo. 434 ; Gibbs V. Hannibal, 82 Mo. 143 ; PhU- pott V. Missouri Pac. Eld. 85 Mo. 164 ; Grogan v. Broadway Foundry, 87 Mo. 321 ; Jackson v. St. Louis, &c By. 87 606 Mo. 422 ; Spiva v. Osage Coal, &c. Co. 88 Mo. 68 ; Carroll r. Missouri Pac By. 88 Mo. 239 ; Barker v. Hannibal, &c. Eld. 91 Mo. 86 ; Stoher v. St. Louis, &c. By. 91 Mo. 509 ; Hickman v. Mis- souri Pac. Ey. 22 Mo. Ap. 344. New Eampsihire. — The State v. Bos- ton, &c. Rid. 58 N. H. 408 ; Corliss v. Worcester, &c. Eld. 63 N. H. 404. New Jersey. — Demarest v. Little, 18 Vroom, 28. New York. — Norris v. Eohler, 41 N. Y. 42 ; Ihl v. Forty-second Street, &c. Bid. 47 N. Y. 317 ; Sauter v. New York Cent. &c. Eld. 66 N. Y. 60; Leonard v. Columbia Steam Nav. Co. 84 N. Y. 48 ; Quinn v. Power, 87 N. Y. 535 ; Durkin ». Sharp, 88 N. Y. 226 ; Harvey v. New York Cent. &c Eld. 88 N. Y. 481 ; Hegerich v. Keddie, 99 N. Y. 258 ; Olive v. Whitney Marble Co. 103 N. Y. 292 ; Woodard v. New York, &c. Eld. 106 N. Y. 369. North Carolina. — Warner v. West- em North Carolina Eld. 94 N. C. 250 ; Taylor v. Cranberry Iron, &c. Co. 94 N. C. 525. Ohio. — Cleveland, &c. Eld. v. Craw- ford, 24 Ohio State, 631 ; Grotenkemper V. Harris, 25 Ohio State, 510 ; Hover «. Pennsylvania Co. 25 Ohio State, 667 ; Weidner ». Bankin, 26 Ohio State, 522 ; Steel v. Knrtz, 28 Ohio Stete, 119. Pernisylvania. — Gray v. Scott, 16 Smith, Pa. 345 ; West Chester, &c. Eld. V. McElwee, 17 Smith, Pa. 311 ; Himt- ingdon, &c. Eld. v. Decker, 3 Norris, Pa. 419 ; Philadelphia, &c. Eld. v. Boyer, 1 Out Pa. 91. Tennessee. — Nashville, &c. Eld. ti. Smith, 6 Heisk. 174 ; Collins v. East Tennessee, &c. Eld. 9 Heisk. 841 ; Traf- ford V. Adams Express, 8 Lea, 96 ; Chi- cago, &c. Eld. V. Pounds, 11 Lea, 127 ; Chesapeake, &c. Eld. v. Higgins, 85 Tenn. 620. Texas. — Houston, &c. By. ». Brad- ley, 45 Texas, 171 ; March t>. Walker, CHAP. LVI.] DEATH. §1274 wherein the deceased person could have maintained a suit for the injury had he survived.^ Thus, — § 1273. Contributory Negligence — is, under most of the statutes, as judicially construed, a bar to the action.^ But there are exceptions.^ § 1274. The Doctrine of this Chapter restated. By an old rule of the common law, which, whether founded in reason at the time it was established or not, has now be- come quite technical, there can be no suit for the killing of a person. But during later years statutes have been widely established, in one form or another, giving the action. And we have some statutes under which there may be an indict- ment for the recovery of money to be paid to the relatives or heirs of the deceased person. It is, in effect, a civil proceed- ing in criminal form.* 48 Texas, 372 ; East Line, &o. Ry. •». Smith, 65 Texas, 167 ; Texas, &c. Kid. V. Berry, 67 Texas, 238; Hughes v. Galveston, &c. Ey. 67 Texas, 59.5. Vermont. — Shetman v. Johnson, 58 Vt. 40. Virginia. — Baltimore, &c. Eld. v. Wightman, 29 Grat. 431. West Virginia. — Dinuney v. Wheel- ing, &c. Eld. 27 W. Va. 32. Wisconsin. — Freeman v. Engelmann Transp. Co. 36 Wis. 571 ; Ewen v. Chicago, &c. Ey. 38 Wis. 613 ; John- son ». Chicago, &c. By. 64 Wis. 425 ; Lawson v. Chicago, &c. Ey. 64 Wis. 447 ; Hoye v. Chicago, &c. Ey. 67 Wis. 1 ; Mnlcaims v. Janesville, 67 Wis. 24 ; Annas v. Milwaukee, &c. Eld. 67 Wis. 46. 1 Quiney Coal Co. ■». Hood, 77 111. 68. See Eeget v. Bell, 77 lU. 593. 2 Berry ». Northeastern Eld. 72 Ga. 137 ; Annas v. Milwaukee, &c. Eld. 67 Wis. 46 ; Freeman v. Engelmann Transp. Co. 36 Wis. 571 ; Hughes v. Galveston, &c. Ey. 67 Texas, 595 ; Gray v. Scott, 16 Smith, Pa. 345 ; Woodard v. New York, &c. Eld. 106 N. Y. 369 ; Mat- thews V. St. Louis Grain Elev. 59 Mo. 474 ; Granger v. Boston, &c. Eld. 146 Mass. 276 ; Shoemaker v. Lacey, 38 Iowa, 277 ; Eeam v. Pittsburgh, &c. Eld. 49 Ind. 93 ; Leahy v. Southern Pac. Eld. 65 Cal. 150. 8 Merrill v. Eastern Eld. 139 Mass. 252 ; Nashville, &c. Eld. v. Smith, 6 Heisk. 174. * Bishop Stat. Crimes, § 467-470 ; Bishop Mr. & F. § 531. 607 § 1278 SPECIAL TOPICS AND IN EEVEIW. [BOOK VII. CHAPTER LVn. WEONGS OUT OP THE STATE OE COUNTRY, § 1275. Conflict of LawQ. — The subject of this chapter per- tains to what in legal language is familiarly known as the conflict of laws. The doctrine, in its larger aspect, is ex- plained in the author's " Contracts." ^ The present chapter may be regarded as a sort of sub-title to the chapter in that work. § 1276. JariBdiction. — It will be assumed, in these exposi- tions, that, by service of process or otherwise, the court has obtained over the offending party the jurisdiction which would be required if the wrong were domestic instead of foreign. Without a jurisdiction, there could be no suit in either case.^ § 1277. Torts to Person. — For any wrong to the person, inflicted in another State or country, — as, for assault and battery ,8 or false imprisonment,* — if within the condemna- tion of the laws both there and here, our courts will sustain a suit.^ And this doctrine extends to maritime torts com- mitted in foreign waters.^ So — § 1278. Transitory. — All those actions which under the common-law forms of procedure are termed transitory may, with perhaps rare exceptions, be maintained in our courts though the thing complained of occurred in another State or country.^ Within this rule, a slander suit for words uttered » Bishop Con. § 1368-1412. » Scott v. Seymour, 1 H. & C. 219, 8 2 Meres v. Chrisman, 7 B. Monr. 422 ; Jur. N. s. 568 ; Seymour o. Scott, 9 Jnr. Morrison v. Underwood, 5 Cush. 52 ; N. s. 522 ; Gray v. Taper-sleeve Pulley Gray v. Taper-sleeve Pulley Works, 16 Works, 16 Fed. Eep. 436 ; Mississippi, Fed. Bep. 436 ; Knight v. West Jersey &c. Bid. v. Ayres, 16 Lea, 725. Bid. 12 Out. Pa. 250. « The Eagle, 8 Wal. 15 ; The Leon, « Watts V. Thomas, 2 Bibb, 458. ' 6 P. D. 148. * Mostyn v. Fabrigas, Cowp. 161. ^ It is the common-law form to lay 608 CHAP. LVII.] EXTRA-TEBBITOEIAL WRONGS. § 1280 abroad,^ a suit for malicious prosecution abroad,^ or for a for- eign trespass or other injury to personal property,^ may be maintained. But — § 1279. Local — Real Estate. — An action which the com- mon law holds to be local * cannot be founded upon a transac- tion in another State or country ; " since," says Gould, " no common-law court has jurisdiction of local causes arising with- in a foreign sovereignty." ^ The principal application of this doctrine is to real estate and to transactions connected there- with. In our .system of jurisprudence, its tenure, transfer, and incidents are under the exclusive control of the law of the State or country whereinr it is situated ; ® while, as to person- alty, the like things are ordinarily, yet with some exceptions, governed by the law of the owner's domicil.^ Therefore, for example, our courts have no jurisdiction of an action of tres- pass to land situated in another State or country ,8 or of an action for diverting a watercourse from it.^ It would be con- trary to sound principle to sustain in one State a suit affecting the title to realty in another, or the manner or extent of its enjoyment ; for it would be an attempt of the court to inter- fere with the domestic affairs of a neighboring government. But we may doubt whether, in just principle, the common law does not carry the rule a little too far.^" § 1280. Wrongful at Place. — If the thing complained of was not contrary to the foreign law under which it was done, the yenue, by a mere fiction, in a county ' Holmes v. Bemsen, 4 Johns. Ch. of the State wherein the action is 460 ; Turner v. Fenner, 19 Ala. 355 ; hronght. Lister v. Wright, 2 HiU, Johnson v. Copeland, 35 Ala. 621 ; N. Y. 320 ; Northern Cent. By. v. Speed v. May, 5 Harris, Pa. 91 ; Hill Scholl, 16 Md. 331 ; Doulson v. Mat- v. Townsend, 24 Texas, 575 ; Bridge- thews, 4 T. E. 503, 504 j Ackerson v. port Bank u. New York, &c. Eld. 30 Erie By. 2 Vroom, 309. Conn, 231 ; Stent v. McLeod, 2 Mc- 1 Lister v. Wright, supra. Cord Ch. 354 ; HQl v. Pine Riyer Bank, 2 HaU V. Coe, 4 Cow. 15. 45 N. H. 300. » Collett V. Keith, 2 East, 260 ; Ma- » Dodge v. Colby, 108 N. Y. 445 ; SOD V. Warner, 31 Mo. 508. Bex v. Hooker, 7 Mod. 193 ; Doulson * Gould PI. c. 3, § 105 et seq. ■». Matthews, 4 T. B. 503. ' lb. c. 3, § 109 ; Cragin v. Loyell, 88 ' Watts v. Kinney, supra. N. Y. 258 ; Watts v. Kinney, 23 Wend. i" And see observations in Whitaker 484. V. Forbes, 1 C. P. D. 51. « United States v. Vox, 94 U. S. 315. 39 609 § 1282 SPECIAL TOPICS AND IN REVIEW. [BOOK VII. or if such law has for it a justification, our courts will not sustain the action.^ § 1281. statutory Torts, — equally with common-law ones, are within the foregoing doctrines.^ But a statute, for ex- ample, giving a right of action for bringing about the death of a person, will not be construed as applying to a wrong com- mitted out of the jurisdiction.^ Yet if in two States there are two similar statutes, it being the rule that the remedy is gov- erned by the lex fori and the right by the lex loci,* a person injured in one State may bring his suit under its statute for a right accrued under the like statute of the other State.* § 1282. The Doctrine of this Chapter restated. By the comity of nations, the courts of one country will not undertake to disturb the order of things in another. There- fore, for example, an action cannot be maintained in Massa- chusetts affecting the title or use of land in South Carolina. But the comity of nations permits and requires the enforce- ment of personal rights and duties in every State, however they may have originated in other States. Therefore for wrongs not local a suit may be maintained, without regard to the place where they originated, in any State wherein the plaintiff can find the defendant. But the procedure must con- form to its ordinary course in the court of the suit ; and, if the court has no procedure adapted to it,^ or if to enforce the right would be contrary to any law of the court or policy of the State wherein the suit is brought,^ it cannot be maintained. 1 Phillips V. Eyre, Law Kep. 6 Q. B. State, 667 ; Stallkneclit ». Pennsylvania 1 i Le Forest w. Tolman, 117 Mass. 109 ; Rid. 53 How. Pr. 305. Davis V. New York, &o. Rid. 143 Mass. * Bishop Con. § 1403; Anderson v. 301 ; Nashville, &c. Rid. D. Eakin, 6 Milwaukee, &c. Ry. 37 Wis. 321. Coldw. 582. ' Boyce v. Wabash Ry. 63 Iowa, 2 McLeod V. Connecticut, &c. Rid. 70 ; Morris v. Chicago, &c. Ey. 65 Iowa, 58 Vt. 727 ; Great Western Ey. v. Mil- 727 ; Knight ». West Jersey Rid. 12 ler, 19 Mich. 305 ; Nashville, &o. Rid. Out. Pa. 250; Stoeckman D. Terre Haute, V. Sprayberry, 9 Heisk. 852. &c. Rid. 15 Mo. Ap. 503. » Hover v. Pennsylvania Co. 25 Ohio ^ Bishop Con. § 1371, 1403. ' lb. § 1378-1382; ante, §67. 610 CHAP. LVIII.J- DOCTRINE OP VOLUME RESTATED. § 1286 CHAPTER LVIII. THE DOCTRINE OP THIS VOLUME RESTATED. § 1283. Law — is a part of the original constitution of this earth and its reasoning ' inhabitants. And the supreme law for man is, that he must follow his reason, as the only path from the darkness in which he is born to the cultivated light. § 1284. The Step3 of Reason — are necessarily at first, like those of a babe in its earliest attempts to walk, feeble, uncer^ tain, and not far-reaching. Gradually they become longer and firmer. They begin among the simple and familiar objects ; as, from two apples and two more apples to four. The more difficult, yet equally plain ones, come later. At length, reason takes its flights, and travels the celestial spheres. Then, last of all, it discovers that the simple things of reason, the two and the two more apples making four, and all the reasoning processes which lie between the first steps and the great dis- coveries, are only notes in one grand harmony of the uni- verse. And all is concord. While the mind was taking its first steps it had no idea of anything beyond ; not a dream of the wider reason ; no suspicion of the ultimate One Reason, though it may have heard the name of God. § 1285. These Views — will, on examination, be found ex- emplified in every department of learning and science, yet in nothing more clearly than in the common law. Thus, -r- § 1286. The Common Law — began in the feeblest steps of reason, so feeble that the name " reason " is ordinarily denied them. Those steps became longer and stronger, and in due time they were named reason. Thus this system of jurispru- dence has received an apparent, not real, growth, until now it is of a magnitude unrivalled. More minutely, — 611 § 1288 SPECIAL TOPICS AND IN REVIEW. [BOOK VU. § 1287. Nature and Growth of Common Law. — 7 We see around us a universe, upon every part . of which the Creator has made the impress of law. This earth wheels onward upon its axis in ohedience to a law which man has been able to discover. But if you ascend the highest tower or mountain- peak, and in the loudest voice ask the earth why it moves thus, it can give you no answer. It does not know. In the earlier ages man did not know. Yet from the beginning it moved as it does now. Go to the seas and ask the fishes why their habits are as they are, — ask the codfish why he feeds upon the bottom, and the mackerel why he gets his food at the top and moves in schools, — ask any question of any fish and you get no answer. Yet there is not a fish that does not move in exact obedience to the laws which the Maker has im- pressed on its nature. Consult the birds and the beasts, and the same facts reveal themselves. Consult man, as to the laws of his being and conduct, and the result is not essentially different. He has a partially dormant and partially active power of reason. Feebly, and as in the twilight, he distin- guishes between right and wrong. Yet God has impressed upon him his particular nature, the same as upon the beasts, upon the birds, upon the fishes, and upon the physical earth ; and of this particular nature every act of his is a product. Ask the child why he claims a thing that has been given him as " mine," and feels wronged and cries if his right is denied, and he cannot tell you. His nature teaches him that it is so, yet his efforts at reasoning upon the question are as futile as those of the fish. § 1288. Following instinct, or conscience, or whatever else we call it, — in other words, moved by impulses from the nature given by God to man, — he, while living as all must in society, establishes various customs and usages. Thereby he takes what may be termed his earlier steps in legal reasoning. After these customs and usages become universal, the court judicially notices and accepts them as law. When statutes are enacted it takes the like cognizance of them also. But it does not stop here. It extends the same consideration to opinions which have become universal and uniform, to the 612 CHAP. LVIII.] DOCTRINE OP VOLUME RESTATED. § 1291 teachings of science when so diffused as to be known by all men, and to whatever is understood of the nature of man and of the relations of society. Especially it takes judicial cogni- zance of reason, and of the fact that directly or indirectly it is the highest guide of man. It thus becomes the highest guide of the court, so that our law is denominated a " system of reason." The prior decisions are followed in subsequent causes, because reason teaches the importance of stability and uniformity. § 1289. But the facts of human life, while to the casual eye repeating themselves, are, when looked at more minutely, seen to be ever-changing. They resemble the growths of the physical earth. To the eye just opening a tree is a tree, and all trees are alike. Looked at more carefully the trees appear in great varieties. We have the oak, the beech, the sycamore, and so on through a very long list. All differ. Looking more minutely at the oak, we find in all the world no two trunks, no two limbs, no two leaves, no two specimens of the fruit, exactly alike. And it is so with all the other trees throughout the world. No two leaves, no two of anything else, were ever discovered precisely identical in form and ap- pearance. To apply these views to our common law, — § 1290. It sometimes happens that the facts presented to the practitioner or court are the same which have transpired and have been passed upon before. But this can be only when the parties have dropped out something from their recital, as deeming it unimportant. In truth, no two sets of facts were ever absolutely identical. Hence, — § 1291. Viewed in these their external aspects, the old cases are not and cannot be precedents for the new ; since the old and the new differ. At the same time, the nature of man, equally with his enlightened reason, pronounces for precedent. It is precedent which has wrought the earlier and later cus- toms, — growths of the feebler reason, not ordinarily called by this name. There is, therefore, some foundation on which precedent may rest. And, looking for it, we discover, what judicial wisdom has for ages discerned, a beautiful and har- monious something, not palpable to the physical sight, yet to 613 § 1293 SPECIAL TOPICS AND IN EEVIEW. [BOOK VII. the understanding obvious and plain, called principles. This invisible something is as powerful as those unseen laws of nature which kept the physical universe in its place before science discovered them. It has ruled man, oftener than oth- erwise without being recognized, during his entire existence. And the only way in which it is possible for one decision to be a guide to another involving facts in any degree differ- ing is to trace the decision to its principle, and thence pass downward to the new facts, and inquire whether or not they are within the same principle. This process is termed reason- ing. And because it is reasoning from things established in the law to those not yet established it is called legal reason- ing, or the reasoning of the law, — in distinction, to quote the words of Coke, from " every man's reason." So that the rea- soning of the law is a distinct thing from the personal rea- soning of an individual judge or text-writer. Hence, also, judicious judges and text-writers do not in their work proceed on their mere individual reasoning, but upon the law's. § 1292. We see, therefore, that, however the people who established a custom, or the legislative body that enacted a statute, or the court that pronounced a decision, omitted to reason about it, or reasoned wrougly, still the custom, the statute, the decision, is deemed by the law to have proceeded on its just and true reason. And a knowledge of tlie law is simply and only a comprehension of such just and true reason. And what is termed the law's progress or gi'owth consists, more than in anything else, in discoveries of its just and true reasons, and in correcting old mistakes as to them. Now, — § 1293. In the Doctrines of this Volume, — the foregoing explanations of the common law are illustrated. At a period Tfhich we can contemplate only as lying somewhere in the dim and remote past, an untutored judicial wisdom discovered the law of our subject growing, wild and unnamed, out of the nature of man. That it understood the processes of this growth, the soil whereon it fed, its relations to other growths, or anything more of it than its practical helpfulness in adjust- ing quarrels among men we have no evidence. It was ac- cepted, used, and brought down to the present time. The 614 CHAP. LVIII.J DOCTEINE OP VOLUME RESTATED. § 1295 writer and reader having now alike been called upon to give it a fresh examination, have discharged this duty, each after his best ability. The writer has presented the subject as it appears to him ; the reader has assented or dissented, as his judgment dictated. And it is of no consequence how correct or how erroneous, whether far-sighted or short-sighted, was the view of the subject entertained by any particular judge. The short steps of reason are not antagonistic to the longer steps ; and the conclusions which the workings of the nature of man force from a bench of judges who cannot or will not reason or who reason wrongly, are still commonly on exami- nation found to be, in fact, a part of the harmony of a per- fected whole. But that to which we are now directing our thoughts is, that the law — the common law — of the subject is a thing, a system, of high and pure reason, quite apart from the views entertained of it by particular courts. Thus, — § 1294. Reasoning and Decision. — In looking into the famous Rylands and Fletcher case, we saw how the court wrought out a correct decision as a part of reasonings subver- sive of fundamentals in the common law.^ In another case, from fairly good reasoning, the court reached a wrong con- clusion because it overlooked a controlling fact therein.^ And this sort of thing is an imperfection inherent, not in the law, but in human nature. Even above us we have wandering stars. Now, — § 1295. The Expositions of this Volume — have shown the entire subject to be governed by fewer principles than the cases commonly assume it to be. Its reasonings, therefore, are not by the shortest steps. Herein it is not antagonistic to the short-step methods ; it simply has this method of its own. An abler writer may perhaps follow with still longer steps ; the vision of the present one does not discern whether this will be so or not. Should it be so, the truth will be as good then as now, that the longer steps are not antagonistic to the shorter. Nor, on the other hand, are the shorter antagonistic to the longer. As the steps are taken in this volume, — 1 Ante, § 839 and note. " Ante, § 1211. 615 § 1299 SPECIAL TOPICS AND IN REVIEW. [BOOK VU. § 1296. The Doctrine of this Subject, — in particulax cir- cumstances somewhat modified by the special facts, is, that it is both the right and duty of every man to be active, that each is entitled to enjoy the fruits of his activity, that the activities of each must be carefully conducted with the view to avoiding injury to others, that in the event of such an injury its author will be chargeable only if it was the product of his negligence or other wrong, that damage from an inevitable accident or an overwhelming superior force is not the subject of compen- sation, that the law protects obedience to its behests and gives an action to any person injured by disobedience, that the fore- going rules apply as well to what one does in respect of his property as of his person, and that the various social and gov- ernmental relations must be respected and duly guarded. § 1297. A Shorter, — yet not antagonistic, expression of the doctrine is, that, in the whirl of life, each must strive to avoid injuring another ; then, where this endeavor is made, whether successfully or not, every man must bear without com- pensation whatever sufferings or losses come to him. Eights of action proceed alone from violations of duty, never from misfortunes. § 1298. Special ReaBons, — as just said, may modify the doctrine. Thus, if a man acts through a servant, the servant stands in his place. Then, however careful he was in choosing the servant, he must answer for the servant's negligence as though it were his own. This exceptional liability gives rights only to third persons, not to fellow servants. § 1299. other Illustrations, — both of the larger doctrine and of its minor exceptions, extend throughout the volume. These will suffice to put the reader who is reviewing the work on his inquiry — the rest is for him. 616 CHAP. UX.] THE FUTURE OP OUB LAW. § 1301 CHAPTER LIX. CONCLUSIONS AS TO TIIE FUTURE OP OUB LAW. §1300. Present Condition. — Though, by a popular error, our law is assumed to have been nourished and reared by a long line of illustrious judges selected from the foremost minds of a learned profession, it is, in truth, in a large degree uncared for and untamed. If, in fact, it had been nourished and reared by anybody, it would not be as it is now. So hopeful and vigorous a birth as that of the com- mon law was never before known. It has sucked wild ber- ries, frolicked and slept without the care of mother or nurse, careered as the surrounding happenings called it out ; and still it is vigorous, yet untutored and unkempt. The natural and mechanical sciences have progressed, and culture in other things has more and more abounded, while our uncombed and not " tailor-clothed " common law stands in its patched homespun, with the odor of the woods upon it, a despised brother in the family group of sciences. It cannot always be so. Hereupon, — § 1301. The Remedy, — long ago proposed, at first scouted, yet now popular in England and fast becoming so in the United States, is to kill it. In vain do the merciful, pointing to a long line of most illustrious services, which even in its state of nature it has rendered, plead for, at least, a prelimi- nary trial of soap, water, and culture. Men among us have become weary of reasoning ; they long to be like the brutes, free from the duty of thinking. So they send up the cry, " Kill that hated system of reasoning, the common law ; sub- stitute for it the naked command known as codification, 617 § 1303 . SPECIAL TOPICS AND IN REYIEW. [BOOK VII. that the reasoning brain may relapse into its dormant con- dition." Let us look at this subject more minutely. § 1302. Reason — Command. — The world has yet discov- ered but two forms of law, doubtless the only forms possi- ble ; the one being reason, the other command. In England and the United States, the former is called the common law ; on the Continent of Europe it is called the civil law, having been derived from the Roman jurists. The latter is with us termed statutory law, or code or codified law, or The Code. Of necessity, statutes to some extent mingle with and modify the common law. And a limited legislation, if just in its forms, is not inconsistent with the law of reason. Still — § 1303. statutes, — if too plentiful, or not wisely drawn, are highly detrimental to the common law as a system of reasoning. Where, as is sometimes necessary, a statute sim- ply changes a rule of the common law, being in structure harmonious with it, no great disturbance in the workings of the system need follow. But alien provisions, or especially those meant to supersede the common law, are more mis- chievous. For example, from early blunderings of English judges great evils in our judicial procedure had grown up. The need of amendment was acknowledged. In Massachu- setts, it was accomplished by a few judicious strokes of the legislative pen ; bringing no judicial upheaval, and only a very few scarcely noticeable questions of interpretation for the courts. The change was so quiet and so completely satis- factory — without even a ripple on the surface of things — that it was unheard outside of the State. In New York, a different method to the same sought-for end was adopted. As with a sound of trumpets, a Code was ushered in; the courts were overwhelmed and almost crushed out with questions of interpretation, " Practice Reports " in more than one series sprang up and multiplied, and with all came a crop of litigation such as was never witnessed before. Pro- fessional opinion was divided and set into a broil not yet over, the unhappy ferment travelled into some of the other States, and the end is not even now discernible. And, — 618 CHAP. LIX.J THE FUTURE OF OUE LAW. § 1306 § 1304. However imperative a statutory change may be, it is scarcely possible for it to come without some marring of the common law. The reader will see this truth strikingly illustrated on a comparison of the present volume with the author's work on "Contracts," — two products of the same mind, doubtless equal in manner and ability. The thing inherently the simpler is the contract; non-contract rights and wrongs cover a vastly wider space, and involve more numerous natural divisions. Yet, in the former work, the doctrines of reason appear at every step limited by technical rules, and complication is piled upon complication ; in the present work there is very little of this, but fundamental principles in no great numbers run through and control the whole. The difference is, that contracts are regulated by various early statutes, operating in conjunction with the com- mon law, while non-contract rights and wrongs have been very little interfered with in this way. The laws which God has made are few, simple, and sufficient. He rules the physi- cal Universe with only two principal ones ; and the supple- mentary minor ones can be counted on a man's fingers. He is far-seeing ; man is short-sighted, therefore has thousands of laws to God's one. Hence — § 1305. The great and overwhelming danger to our law is the needless multiplication of statutes. And it makes no difference though the statutes are called by the name Code. Suppose, for example, the scheme which is termed codifying the common law is carried out. Thereby a contradiction has been enacted ; there can be no such thing as a codified common law. The common law is reason ; the code is com- mand. The transmutation of reason into command is as complete when the thing commanded is what reason had on some previous occasion approved, as when it is not. § 1806. In the Next Chapter — this subject will be resumed, and carried forward from a wider standpoint. The foregoing sections are but introductory, and the next chapter is, while it has a separate title, a continuation also of this one. 619 § 1308 SPECIAL TOPICS AND IN REVIEW. [BOOK VII. CHAPTER LX. CONCLUSIONS AS TO LEGAL REFORMS AND THEIR INFLUENCE ON GOVERNMENT. § 1307. Introduction. — During a considerable number of recent years, it has been an approved custom, especially in England, for an au- thor explaining some branch of the common law to introduce his work with a plan for destroying the common law itself by merging it in codifi- cation. Whence it has occurred to the present writer, as, at least, equally appropriate, to devote a little space to words commendatoty of the system of laws which the book was written to expound. While preparing the .present work, and contemplating the carrying out of this idea in it, he received an invitation to address an exceptionally intelligent assembly of legislators, judges, and practising lawyers, nominally the Bar Association of South Carolina and its guests; and, to see how the views meant for the book would impress others, he accepted the invitation, presented them in the Address,^ and afterward they were published in a legal periodical, and in pamphlet. Partly from the flattering reception which they received from .eminent persons whose prepossessions were not disturbed by them, but chiefly from the extremely high 6stimation entertained of them by some of our very foremost minds, advocates of codification, who deemed it a duty — not to answer them, but — to publish misrepresentations of them far and wide to the profession, he has become reluctant to change, as origi- nally contemplated, even their form ; fearing that thereby they will be rendered less effective. So, with a few alterations indicated by their dif- ferent position at the end of a book, or suggested by a revision, they are here given, omitting introductory matter and a few paragraphs, as follows. I, Law as Embodied Reason — two Systems. § 1308. Reason. — In the economy of human life and associa- tion, we have, as the fairest gifts of God, love, religion, and reason. I need not say that the last is . the gijeatest, for it includes the 1 Delivered in the Hall of Representatives, State House, at Columbia, S. C, Dec. 8, 1887. 620 CHAP. LX.] LEGAL REFORMS AND GOVERNMENT. § 1311 other two. Where reason, pure and perfect, prevails, all other good dwells ; and the place whence it is banished is, whether in this world or the next, hell. "Let us reason together," is the command of Hinj. from whom both we and reason proceeded. There is false reasoning, but true reasoning conducts to all light and all happiness. § 1309. Civil Law During the ages of Eoman prosperity and glory, the civil law grew up as a system of reasoning. It had, to employ our common-law forms of expression, its statutes and rules of court ; and it had the writings of its jurists, corre- sponding to our treatises and commentaries. It lacked those masses of judicial decisions which overwhelm and almost crush out our reason. On the other hand, its jurists were real jurists, and not the sort of men, or theirs the sort of labor, whence have proceeded the greater number of our law treatises. And, begin- ning with no more authority than we accord to the books of our young lawyers seeking practice, and of our older ones who never had the capacity to acquire practice, they rose by their own mer- its to be the authority, and nearly the only authority except legis- lative. Thus the Boman law became a system of reasoning, as such, differing from ours in little else than the form of its growth and development. And as in the countries governed by the common law, so in those governed by the Roman, the states- men and legislators were largely lawyers ; that is, they were persons accustomed to reasoning upon legal, or governmental, things. § 1310. Roman Government and Civil Law. — Thus the affairs of Rome were controlled by men who, however- lacking in many things, were accustomed to reasoning, and to the sort of reason- ing by which alone the people could be well governed. And thus Rome grew and prospered, until she embraced the entire civilized world. § 1311. In this condition of things, the eternal longing and sighing for laziness, the ceaseless aspiration to be rid even of thinking, the same which has characterized man in all ages and countries, which has wrought immense mischief in our jurispru- dence, and which now threatens to destroy it, prevailed. Jus- tinian, whom it is the fashion to adore, finished the work of mischief. In connection with what we should term revising the statutes, doubtless an excellent undertaking, he collected wiat he chose to preserve of the writings of the jurists, altered the 621 § 1313 SPECIAL TOPICS AND IN REVIEW. [BOOK VII. excerpts as far as the new purpose required, and consigned all the remainder to eternal oblivion.' Having done this he changed the status of the accepted jurist writings from reason to statutes,' and made it a punishable forgery to write any juridical comments on the laws or do any jurist work. To speak metaphorically, he murdered the entire line of jurists, and forbade any jurist after- ward to breathe in his dominions; he quenched, as far as he could, forever, all reasoning upon legal things. Of necessity, the ship of state, "which, though so great, and driven of fierce winds," had theretofore been kept from foundering by the " very small helm " of reason, went down, and Rome and the world were overwhelmed by centuries of darkness and woe. § 1312. When, out of the dust of succeeding ages, the Corpus Juris Civilis arose to a new life, men shut their eyes to that in it which had caused its death. It had ceased to be a statute. It was, like our common law, reason. No man heeded its inhibi- tion of jurist work. In spite of it, continental Europe, the chief ground of its reign, has had its jurists, and they have been multi- plying to the present day. And those who now sing the praises of Justinian mean, not Justinian, but the jurists whom he mur- dered, and who have come to life in spite of hin£. § 1313. England. — Let me anticipate my argument by remind- ing you that the world presents now an exact parallel to Eome in the days of Justinian. There is a little island upon which the angel of light as she flew over it dropped a spark. Spurning Justinian's folly, she accepted reason, named it the common law, and rose to a power and glory which mock the very brightest of Boman dreams. Her navies rule the seas, her colonies watch the sun in all his course around the world, her glory threw off in one of her flights these United States of America. But the longing for laziness has of late taken possession of her. And she threat- ens to substitute acts of Parliament for all her common law of reason ; and make it possible for sluggards and fools to practise at her bar and preside in her courts. If she does it, it requires no gift of prophecy to foresee that her encompassing seas will weep upon the dripping rocks around that little island a more 1 I express no opinion on the his- and afterward, the ahsolute forbidding torical question, whether or not he actu- of their use would work a destruction ally burned those jurist writings which without the necessity of calling in fire, he rejected. Gibbon, c. 44, explains " Ante, § 1305. that, in the condition of letters then 622 CHAP. LX.] LEGAL REFORMS AND GOVERNMENT. § 1318 mournful requiem to her entombed empire tlian was ever before sung over fallen greatness and glory. And — § 1314. Law -without Reason — the mere naked command — has never wrought prosperity for any people. II. Qualifying for Grovernmental Work. § 1315. Necessity for. — No man able to pay for a dwelling- house would intrust its erection to one whose only study and experience consisted in picking and shovelling gravel. And it is but common knowledge that he who would do anything well must have had some adequate training for the particular work. If governmental work is sometimes assumed to be an exception, it is only by minds overheated by party politics. And no consider- ate person will deny that the helm which guides the ship of state is reason, not the reason of the chemist, of the smith, or of the mathematician, but the reason of the laws and of government. Now, — § 1316. The Practice or Administration of the Common Law — is a constant call upon the reasoning powers of those engaged therein, keeping them unremittingly active. And especially it compels an unceasing looking into those laws, inherent in man and in society, without an understanding whereof no oificial per- son can properly discharge any governmental function. § 1317. Further of Common-law Reasoning. — In method and results the common-law lawyer resembles the scientist in nature. The latter, taking note of all natural phenomena, classifies them ; and, looking down among them more deeply than the ordinary vision extends, discovers, and brings up to the view of his fellow- men the laws, one by one as he can find them, by which the work- ings of Nature are produced. Aided by his labors those who provide for the physical wants are able to proceed intelligently ; as, to build a bridge which will not fall in the using, a house that will stand, a locomotive that will draw the train of cars. The scientist is thus constantly adding to our knowledge of what always existed, and the physical world of man is progressing. § 1318. So it is under the common law. The lawyer, whether practitioner, judge, or writer, looking down among the numberless phenomena of his science, — noting human actions, and investi- gating the decisions of the tribunals upon them, — discovers, one 623 § 1321 SPECIAL TOPICS AND IN REVIEW. [BOOK VII. by one, the laws which always existed, though, it may be, never before understood, pertaining to the government of men in com- munities. The exigencies of practice constantly compel him to this, if he is a practitioner ; the duties of office compel him, if he is a judge. Thus, while the law does not in any proper sense grow, the knowledge of it is a constant growth of beauty and use- fulness. And so men are taught governmental things, and kept in constant training for the work. And, — § 1319. Though not all officers of the government are lawyers, the non-professional ones, almost equally with the professional, feel the invigorating and enlightening influence of the reasoning law, — a flame which spreads from its main burning to the neigh- boring piles around. III. Further of the Common Law and its Needs. § 1320. Judicial Decisions — (Doctrines). — That in our com- mon law which is the most familiar, and which some even look upon as the whole of it, is its immense and rapidly increasing mass of judicial decisions. The nature and functions of a judi- cial decision are palpable, and absolutely certain beyond question. Yet many lawyers, as thoughtless as though the good God had never given them understandings, assume, and persist in assum- ing, that such a decision is a very different thing from what it is. It is the conclusion of the judicial mind upon particular facts. A controversy between parties had arisen, and to settle it they brought the facts to the tribunal and proved them ; thereupon it pronounced the law's determination upon those facts, and it did nothing else. It could not, whatever the incli- nation of the judges, decide a question not in issue. And no issue upon an abstract doctrine, such as it is the province of a jurist to lay down, ever was or could be made up for the determi- nation of the court. Therefore no such doctrine was ever judi- cially decided. Still, — § 1321. Words of Judges. — In pronouncing the law's determi- nation upon the facts, the judge may have said many interesting and useful things, or possibly he may have blundered. But how- ever wise or learned his words, they are the mere ornament of the adjudication, or his individual commentary thereon, spoken with reference to the special facts of the particular case. And, 624 CHAP. LX.] LEGAL REFORMS AND GOVERNMENT. § 1323 however the words of one judge may be concurred in by the rest, they never rise higher than evidences of the law, as distinguished from the law itself. Moreover, even when they are in the most general terms, and to the casual reading meant to convey abso- lute doctrine as viewed separately from the limited facts in con- templation, they are to be interpreted as qualified by those facts. Thus, — § 1322. Interpretatioii of the Words. — There is nothing con- nected with our books of decisions more important to be remem- bered, or a forgetfulness of which oftener leads to mistake, than this, that the words of judges are always to be interpreted as qualified and limited by the facts of the case in hand ; and that it is thus even when in form general, as laying down doctrines for all classes of facts. My attention was called to this proposi- tion at an early period in my legal studies. I took down and preserved the language in which I first saw it ; it proceeded from a very learned judge. When I came across the same thing from another learned judge, I preserved his words in like manner. I did the same in the next instance, and in the next, and so on until I became ashamed of this palpably needless repeating ; then I stopped. I could fill out the remainder of the time allotted for this address with this sort of quotation.* It has been my fortune to read a great many thousand cases, and I never saw in any case anything contrary to this. It could not be otherwise. Prom the earliest times in England to the present in every one of our States, and in the tribunals of the United States, our judges have been men who, with only exceptions enough to emphasize the rule, had an eye single to the discharge of their duties. They have not meant to play the jurist while sworn to do the very dif- ferent work of judge. To illustrate, — § 1323. It is laid down by a part of our courts, in the broadest and most general terms, that no man may abate a public nuisance unless he suffers from it in a manner special to himself, and not simply as one of the public. Were this really the doctrine of those courts, absolute, and not limited by the facts in contempla- tion when announced, then, if within their jurisdiction I stood on a railroad bridge spanning an immense chasm, and saw on the track an obstruction adequate to throw over a train of cars to the bottom, and saw approaching a train bearing a thousand souls, > See, for an Ulustration of it, ante, § 839, note. 40 625 § 1326 SPECIAL TOPICS AND IN REVIEW. [BOOK VII. not one of whom was my wife or my child, and not one of whose lives I had underwritten, I should not be permitted to remove the obstruction ; but I must stand and see these thousand human beings sent before my eyes to eternity, — to the horror of hell and the sobbings of heaven and earth. No, the judges who ut- tered this doctrine did it with their thoughts upon different facts, to which, therefore, it must be deemed limited.^ Moreover, — § 1324. In reason, the rule for interpreting the enunciations of judges cannot be otherwise. One passing on given facts has necessarily them, not others, in his mind ; or, if, his thoughts go out to other facts, they are such as he deems illustrative ; then, when he speaks, his utterance is simply of what is within him, not of something absent from his contemplations. So that a doc- trine laid down by him, in however general terms, must, in the nature of the human mind, be his deduction only from what he sees, not from what he does not see. Now, — § 1325. Ultimate Rules — (Narrow Facts of Decisions — Jurist Work). — The result of all which is, that our books of reports are the judicial conclusions from just so many sets of narrow facts as there are cases in them, each set of facts differing from every other ; and they do not embody the ultimate rules which govern the infinity of facts, past, present, and future. So long as the judges do their duty, and conform to their oath of office, the reports of their decisions cannot be otherwise. To ascertain and state the ultimate rules, and show how they are applied to the infinity of past, present, and future facts, is the proper work of jurists. And he who has learned what the jurists, thus viewed, have taught, has learned the law, and qualified himself to prac- tise it; no other person has. I have thus stated the truth squarely and broadly, that its proportions may distinctly -appear; while yet I gladly admit that in our reports will be found more or less of what approximates jurist work, and that with help or- dinarily obtainable a man may imperfectly qualify himself for legal practice without reading jurist writings. § 1326. Evil Method. — There are lawyers who take immense pains to pile upon their memories these judicial deductions from specific facts, to the neglect of the ultimate rules. The human mind can bear a great deal of abuse without being utterly de- stroyed. Hence, those who do this are sometimes a long while 1 And see ante, § 130-432. 626 CHAP. LX.] LEGAL REFORMS AND GOVERNMENT. § 1327 in arriving at a knowledge of their mistake ; they struggle on in fruitless attempts after recognition as great practitioners, until, fortunately coming upon a beam of light, they reform their method ; or, what is more common, they die in wonder that God and man do not appreciate them. In some way, he who would make himself a success at the bar must learn what thus appears to be the law, in distinction from the multitudinous deductions from ever-changing facts. IV. Our Legal Textbooks and Need of Jurists, § 1327. Ascertaining and arranging Principles. — We are thus brought to the place in our common law where reform is de- manded — the weak place, which needs to be strengthened. I can state only approximately the number of our adjudged cases. The labor of counting them would be too great to be compensa- tory. A rough estimate places them at half a million. The man does not live who, if he gave his whole time to ascertaining the judicial deductions from the differing facts they recite, could thus go through with the half of them ; and, if this were accom- plished, there never was a memory strong enough to staud up under the load ; or, if there was, it would crush out the reasoning powers, and reduce the intellect to idiocy. Or, if nothing of this were true, the facts of the dead past are not the same as the liv- ing ones which will arise in the future. The past, therefore, is no precedent for the future, except as it furnishes the means whereby study and investigation can derive the rules which gov- ern the past and the present alike.^ To ascertain and set in order these rules is, we have just seen, no part of the work of judges. And if, the need being great, they make an effort toward it, it is often abortive.'^ It is considerate of a judge to do a thing of this sort when he has the time and facilities ; but- he discharges every particle of his duty, both his moral duty and his legal, when, in deciding a case, he gives his reasons for deriving the particular conclusion of the law from its special facts. And to pause upon a crowded docket, too heavy to be disposed of before the term must close, to write a jurist exposition of the general law of the subject is little less than to violate his oath of oifice. 1 Ante, § 1289-1292. 2 Ante, § 839, note, 908, 976, note. 627 § 1329 SPECIAL TOPICS AND IN EEVIEW. [BOOK VII. If the public good requires the essay, the legislature should em- ploy to write it some person whose time is less preoccupied with the public service. Hence, — § 1328. Jurists. — Fully as much as we need reporters of the decisions of the tribunals, almost as much as we need judges, we require legal persons of the very highest ability to ascertain and set down the reasonings of the law, in connection with what has been adjudged ; deriving from all the doctrines, arranging them in their due order, and condensing them to their smallest proportions. And a decision should never be deemed a fit guide for the future until it has passed through the hands of a compe- tent jurist. If the Eoman jurists, to illustrate the applications of their principles, had possessed our printed reports of facts, how incomparably glorious would be their commentaries ! Or if our law, with its multitudinous reports, had men like those ju- rists to present it for professional use, how immeasurably above what it now is would it practically be! But — § 1329. Our Tezt-books. — I am here reminded that we have immense numbers of legal text-books, and I am asked whether I deny that they proceeded from jurists. I reply, that they are of vastly difEering qualities, and that no one characterization could properly be applied to all. Though the common law itself in- vites the culture of jurists, almost the sole thing which it has overlooked is the fact that they cannot live on uncooked elec- tricity and air. They are not disembodied ghosts, but real men, requiring the same sort of subsistence on which practising law- yers and judges live. A jurist must have all the natural faculties which would qualify him to be a first class practitioner, or a judge of the highest eminence, added to which he must possess natural gifts not required of either. If the great lawyer must be refreshed with three pounds of roast beef per day, or the great judge with five, surely your jurist requires not less than ten. But how is a man whom God made to be a jurist to carry out the divine decrees ? In England, there never was a time when any man could earn his salt by juridical writings. In the United States, where books purporting to be juridical have a wider sale, one who, to the naturally juridical mind, added the neces- sary culture, could obtain from his writings what would pay for his salt, his clothes if patched and second-hand, and his whiskey and tobacco, — were it not that, as fast as he wrote, the thieves would steal his work and publish it as their own. So that his 628 CHAP. LX.] LEGAL REFORMS AND GOVERNMENT. § 1331 labor honest would come into competition with his labor stolen, reducing directly the profits, and indirectly, by mingling his ex- positions with those of the thieves, delay the recognition of his merits, whence naturally and legitimately would otherwise flow increased profits. The consequence whereof has been, that many or most who in England have essayed to write what should be juridical works have drawn largely on their predecessors by pi- racy ; and the same thing has followed in this country. And the courts, instead of frowning upon this, have smiled upon it and petted it. There are even exceptional judges who will scarcely listen to a thing until it has been stolen at least once, and some appear to be happily satisfied only with about the seventh theft. Further as to — § 1330. Stealing. — It was once my fortune, in my younger days, to be present when one of the most eminent of law pub- lishers was endeavoring to contract with a young author for a book. The author described the labor which the making of it would cost him, and added, " I cannot afford to do it for the price you offer." "Oh!" replied the publisher, "we do not expect you to do it so. There are two English books on that subject ; cut them up, arrange the matter for yourself, work in with it a little American law, and we shall be satisfied. That is the way the old heads do. Why, in So-and-So's copy for the printer one could scarcely find any chirography." § 1331. Many years ago there were within the circle of my acquaintance two men who made a somewhat smaller law book than another then in use on the same subject. The larger book was the whale, and the smaller was Jonah. So the whale, in a plunge for life called a new edition, swallowed the choice parts of Jonah, — not the whole of him ; I think it was something like one third. It may be a little more or less ; for I speak only from memory, the verification having been made some years ago. So voracious was the whale that, though gobbling for head and heart, it got boots and spurs also. In other words, the printed matter of the smaller book appeared in the larger without the correction of those little mistakes which are unavoidable in books, having evidently been sent to the printer of the larger without copying. Jonah died, but the whale lives. It took at the same time a smaller gulp from another book, which survived, like the original Jonah ; but, unlike him, was never cast up upon dry land. Nothing more of sufiBcient magnitude to be worth men- 629 § 1333 SPECIAL TOPICS AND IN EEVIEW. [BOOK VII. tioniiig was ever done for theenlargenlent of the whale ; and, to drop the figure, it remains now one of your honored books, pro- gressing from edition to edition, and reverently cited by the bar, and bowed profoundly before by the judges. § 1332. In these days of rapid stealing, when type-writers and 'copyists " cover a multitude of sins " and avoid some of the for- mer methods of detection, the scissors have, if I mistake not, somewhat declined as the newer and brighter glory has aj-isen. Of this complexion, I know a very modern case, not in the reports, wherein the pirate was so confident of having covered his steal- ings beyond detection as to allow a suit for an injunction to be brought, and remain in court until the judge had set down a day for the hearing; thus creating several hundred dollars more ex- pense than would have settled the claim before suit. The pur- loining was in form like that of the burglar, who walks through the richest parts of the house, the parlor, the dining-room, and the china-closet, taking what seems most like gold and silver, and departs ; then melts down his treasures sufficiently to destroy their identity. Travelling through the chosen chapters, he seized each coveted sentence, varied the expression, and shuffled the cited cases. But he did not obliterate the author's order, and he had no conception of the deathless nature of our English sen- tences. So that, in the better part of a hundred pages, he did not by his transmutings so alter a dozen sentences as to leave the question of their identity a fair subject for argument. When the folly of the mistake appeared \^n the light of an impending hearing, involving the introduction of one of your honored law books to the court in a manner not quite usual, and leading up to a luminous case for the reporter, it remained only for the com- plaining "party to accept an honorable settlement. The stealing in this instance was not done with the scissors ; for, though the original author's little errors were copied, adding to the evidences of the theft, the thief made similar little errors of his own, thus showing that his instrument was the pen. § 1333. A manner of making your honored text-books, not within any observation of mine, but in its results corresponding with what I have seen in books, was once related to me as follows. The man whose name is to stand on the titlepage as author se- lects the books to be stolen. With pencil in hand, he goes through them, and marks the coveted matter. Then he passes them to copyists, — supposed to be competent to cover while they scratch, 630 CHAP. LX.] LEGAL REFORMS AND GOVERNMENT. § 1334 — directing them to change the expression as much as possible ; lastly, he takes the copied matter, reduces it to the needful con- sistency by mingling with it his own hvain-aqua, and with his mightier personal genius completes the work of destroying, or satisfying himself that he has destroyed, its identity. Even on this plan I am told that there is danger of slipping ; for, as one observing upon it said, he had occasion to compare your honored text-books on a particular subject, and found an entire section in the new one made by this method identical with the section in the old. § 1334. It is not necessary for me to go on, under this head of the subject, with further pavticularizations of what you all in a general way know. The foregoing instances are but illustrations, selected, not because they are better or worse than others, but as showing some of the varieties of the stealing. The purpose is neither to injure nor benefit any particular persons living or dead ; and, if there were a propriety in mentioning names, it would not be necessary, since I am addressing an audience of gentlemen who in their own libraries have the means of picking out the books if they choose. I will quote the words of a very competent writer in your neighboring State of Georgia, one who evidently wrote them without any idea that he was describing an abuse, but plainly deemed himself speaking of what existed as of course. " The more modern book," he says, "will usually repeat from the former all that part which is still in force, and it will give, besides, the subsequent alterations." * In other words, the author " usually " pirates the work of his predecessor, edits it, then publishes it as entirely his own production. I should insult you if I asked your opinion whether a scamp like this is a jurist. And still this writer informs us that such is your " usual " legal author, honored by the practising profession, and bowed before and followed by the judges.'' But — 1 Reed, Am. Law Studies, § 192. itary work, and advertise its writer, ^ I have not the happy facility of instead of being caught np and incorpo- prophecy, possessed hy many others, rated in new treatises, which deal with In an excellent magazine article hy Mr. law and our complex society in a later Schouler, on " Cases without Treatises," and more comprehensive development." he says, that a writer on jurisprudence 23 Am. Law Rev. 6. If this means at the present day cannot expect his that the progress of the world will not work to he "lasting," like the great end with the death of any author, lam productions of former times; "or, at glad of the prophecy. If it means, as least, that it will continue to do its sol- it seems to, that stealing and lying will 631 §1335 SPECIAL TOPICS AND IN REVIEW. [BOOK VII. § 1335. Copyright and False-pretence Iia'vtrs. — The noteworthy part of this matter remains to be stated. While our copyright laws, as commonly understood to be interpreted by the courts, are so defective as to seem almost worthless, "^ not so are the laws which punish cheating by false pretences. The latter exist in all our States, and the violators of them are shut up in the peniten- tiaries, except when the persons cheated are lawyers. One who, as author, presents to the public a book into which stolen matter enters, under the semblance of its being all his own, breaks the laws against obtaining money by false pretences, whenever and wherever an innocent bookseller sells a copy to one who pur- chases it relying on the repr^entation implied in the semblance of authorship, whether the ostensible author is or is not present continue ; so that every worthy writer of to-day will to-morrow have his pro- dnctions mingled with other gleanings of a thief, who will claim all as his own, and the world will embrace the thief and spurn the real authors, then I am veiy sorry for the world, doomed to such a retrograde into meanness and sin. For one, I am not good or goody enough to sacrifice much for any world which I might deem to be of that sort. 1 Perhaps the common view as to their interpretation by the courts is not correct. It certainly ought to be other- wise. Our patent laws are construed in a way to give some protection to an in- ventor. But no invention in scientific literature, whether legal or any other, is supposed to have any real protec- tion from the courts ; because, it is as- sumed, av, idea cannot be made the subject of a copyright, the protection extending only to words. So that, while the patent laws secure something to the inventor of a machine, no in- ventor of a scientific book takes any- thing under his copyright, except in the words and their an-angement, — two things which any fool can change at pleasure, and with very little labor. A man with the highest inventive powers, such as would yield him millions if em- ployed in the mechanical field, may spend his entire life and starve his fam- ily in producing a scientific book bene- 632 ficial to mankind, then on the day of its publication another, with a facility of expression, and money enough to employ a type writer, may seize the book, and in a month have it before the public as his own ; and, if the common understanding of our judicial doctrine is correct, the real author will get no help from the courts, while the thief piles in the proceeds of his sales, and stands and mocks at justice. And jus- tice excuses herself by saying that ideas are not the subjects of copyright. Well, granted. Neither are they the subjects of patent. In both fields, men may en- tertain whatever ideas they please. But when a man, drawing from his own ideas and not stealing, constructs a new and useful inachine, the statute of pa- tents is given an interpretation which protects him as against all specious changes, wherein the form and appear- ance are altered while the principle re- mains the same. In reason, it should be so also with a book. There is no justice in denying the like construction to our copyright statutes. If there is a. verbal justification for it^ a quibble upon the statutory words, as is some- times claimed, the statute should be amended ; or, if not, either the courts should be convinced, or the legislature should furnish them the right role of interpretation. CHAP. LX.] LEGAL REFORMS AND GOVERNMENT. § 1338 in the same county or State. And before a single sale is made, down to any time before the edition is exhausted, he is indictable for the criminal attempt to cheat. These are propositions which no one familiar with the criminal law will question. Yet, while the cheats which I have described have been going on, were the defrauders ever known to be set to hammering stone in a State prison ? Surely their high position was not their protection. I do not know how you do things in South Carolina, but we in Massachusetts put into our penitentiary great lawyers, great sen- ators, presidents of immense corporations, clergymen; and, in one instance, we received into it one of your honored South Caro- lina ex-governors. Why exempt your honored authors ? It is easy to ask questions : so I have asked this one. § 1336. Helpers. — Another method of producing legal text- books is for an older man to mingle his work with that of boys helping. If this is done, not under the false pretence that the whole proceeded from the ostensible author, but accompanied by an honest statement to the public, there is no wrong in it ; and the result may be, in some circumstances and for some uses, ex- cellent. Where the aim is simply to set out the opinions of the .courts, condensed, with little or no juridical work interwoven, and there is a large field to be gone over, this production of a dozen co-operative minds may be greatly better than no book. But it is not a jurist work. It matters not how eminent or how able a lawyer is, he cannot gather up and state the reasons and doctrines of the law at second-hand, traversing the juridical field beyond where the footsteps of the judges are distinct, — whether the helpers whose sight is to take the place of his own are competent or incompetent. § 1337. Opinions — greatly more disparaging of our text-books than my own might be added.* But, not dwelling upon them, — V. Conclusions as to the Reform demanded. § 1338. Admitted Need. — In view of the foregoing, there are few reflecting lawyers who do not admit the crying need of 1 In the address as delivered and reading of them is not a part of its elsewhere published, I present here some course of legal instruction. I omit it very strong testimony from our oldest partly because the question is one of University, Harvard, from the Law mere opinion against opinion, chiefly School of which all text-books have because I wish to shorten this chapter. been banished to the extent that the 633 § 1340 SPECIAL TOPICS AND IN REVIEW. [BOOK VH. reform. And, among those who attempt to penetrate, not with prophecy, but with the beam of reason, the mist-draped future, there are none who do not see that the course of juridical and ju- dicial things among us must, sooner or later, change. In each of our States, the decisions of every other State, of England, and even of her colonies are accepted by the courts as qtiasi authority. Cases — not doctrines, but cases — from every region where the common law is practised, are piled high, case upon case, and then by counsel rolled down in enormous avalanches upon the mortals who have the misfortune to occupy the seat of justice. Each judge is to examine every case, or be derelict of duty. And the number of cases doubles every few years. The uncleared docket groans under its weight. A minority of the judges would not look into a jurist work, presenting clearly and concisely the doo- trine which should govern a question, if cited to them. For the help of the majority, who would look, there is, speaking in terms substantially if not literally true, no such work to cite. A thief's book, a book made by a bunch of proxies, a good book which is simply an echo of the reports, an honest book written by one who has no command of principles and is therefore simply mislead- ing, the book of a competent author who has not duly studied his subject, does not supply the need. Yet if, to fill the want thus appearing, jurist works were offered, the books of these various sorts would greatly crowd them aside, the stealings from them would leave unseen their merits, appreciation of them would come slowly, and more slowly the learning how to use them. Still — § 1339. Jurist Works — will come, or our law will be an utter wreck. And tJiey will come when demanded. In the economy of our earthly existence supply is always commensurate with de- mand. But demanding implies also a readiness to receive. And receiving them, or demanding them, does not mean simply that you will not bring their authors to the public whipping-post, or shut them up in the penitentiary. You must give them in exchange for their labors something to eat and wear, and you must protect their products from the thieves. Especially you must enact, and, more than all, you must sustain by public sentiment, laws as effi- cacious for the preservation of the fruits of their intellectual toil as are those which protect the makers of jackknives rfrom shop- breakers. § 1340. Sufficient. — Suitable jurist works, the ripened produc- tions of real jurists, who wrote without the ghosts of hunger and. 634 CHAP. LX.] LEGAL EEFOEMS AND GOVERNMENT. § 1342 nakedness chasing them, with no bands of thieves hovering upon their lines, will reduce the labor of practising lawyers and judges to the smallest dimensions consistent with the administration of real justice. I assume, in this statement, that the practitioners will have learned how to use them, and that the courts will con- sent properly to consult them. I do not ask of the courts a pledge to follow so much as a solitary doctrine of theirs. That will come quite fast enough — too fast — without any pledge in advance. No man can have read a quarter of the cases which I have done without learning that every judge, including the most prejudiced, will follow the accurate and properly, explained and sus- tained teachings of any book which he can be induced to read with due carefulness, that among ten thousand instances not a solitary exception to this truth can be found, and that the er- rors consist solely in judges accepting from text-books opinions which are not sound, or in not taking the trouble duly to compre- hend the sound ones. In like manner, I do not ask counsel or judges to stop the enormous case-huntings, or the quiddlings over inaccurate judicial dicta; all that will come quietly and as of course, a dropping of ripened fruit into a golden harvest. Then will cease the clamor about the multiplying of the reports. Let them multiply. The jurists will use them, and others consult them who wish. To Sir Isaac Newton the fall of an apple sug- gested the law of gravitation; since which time, apples have more and more during the fruit-seasons come down, and philoso- phers have endured their peltings without complaint. When lawyers become true philosophers, the case-storm will give them no trouble. But I am told that this is almost — § 1341. Codification. — This is, not the premature and crude, but the just codification ; lacking the needless yet fatal " Be it enacted," — that evil part which transmutes the golden reason of the common law into the pig-iron of command. § 1342. If you have an enacted code, will you make it a pun- ishable forgery, as Justinian did, to write so much as a line of comment upon it ? Will you suppress yoiir reports'? Will you shut up in your prisons every man who attempts to be a jurist ? Will you, doing what you now refuse,, send to the penitentiary your thieves? If you do not, then your law reports, your poor text-books, your over-worked judges, and everything else you complain of, will multiply three-fold. Each command in your code of the sort not interpreted as a mere affirmance of the 635 § 1344 SPECIAL TOPICS AND IN REVIEW. [BOOK VH. common law of reason, has now been made a technical rule, lim- iting and qualifying the reason of the law. Already the rules of this sort have become so numerous as enormously to swell the bulk of any adequate commentary upon the law.' So the unman- ageable bulk will grow faster and be more complicated than before. If you codify a second time, the evils will only be mul- tiplied ; a third time, the same ; and, at length, the confusion will have been rendered inextricable. Meanwhile our States, now by the afBnities of a common jurisprudence happily wedded into the only polygamous Union consistent with prosperity, will, through the operation of their separate codes, suffer the most disastrous divorce ever known. But, — § 1343. As a practical question, we should bear in mind that the codification thus pictured is the ideal best form of it, neither possible nor by anybody suggested now. What is now commonly meant by codification is the reduction, not by jurists who have devoted their lives to the work, but by lawyers without special qualifications, of our present unkempt, uncombed, and uncultured common law, that never felt the jurist touch, into the form of a statute, and the adding thereto of the legislative screw, pressing and compacting it into the unelastic command. It is a tumult which may well remind us of the familiar quarrel between a hus- band and his wife as to where in their room to set the bureau. The domestic storm, you remember, rose so high that the priest had to be called in. Said the holy man, " Show me the bureau." "We have no bureau, your riverence, it has not been bought." Let me suggest, therefore, that we suspend our quarrel over this question of codification until our law has received such juridical culture as to inform us, and enable us to agree among ourselves, just what and how many are its elementary principles, reduced to their smallest proportions. We have already seen that to ascertain this is the proper work of the jurist ; it is absolutely outside the functions of the judge, who can do it only by depart- ing from his duty of relieving his docket from the press of cases upon it, and without the possibility of having before him the materials or tools indispensable to jurist work. § 1344. You remember that, at a not very remote meeting of the American Bar Association, it was, after debate, by a small majority resolved, that " the law itself should be reduced, so far as 1 Ante, § 1303, 1304. 636 CHAP. LX.] LEGAL REFORMS AND GOVERNMENT. § 1346 its substantive principles are settled, to the form of a statute." ^ And you remember that, for a considerable time past, there has been in New York a chronic quarrel as to whether or not a par- ticular draft of a code shall be legislatively adopted. Now, if this -or any other proposed code truly embodies the principles of the common law reduced to their smallest proportions, the courts can be made to know the fact more readily than the legislature. And if this great juridical work has really been done, we may well set up here our Ebenezer. Any man who has done it has only to publish the book ; and, if the world is sufficiently enlight- ened, it will receive it. What is already established does not need to be established by a ^econd process to make it stand. The utility of the writing can be made as well to appear without the legislature passing upon it as with. And after its utility has become universally recognized, — after the bureau has been bought, — its position, whether among the written laws or the unwritten, can be more intelligently determined upon than before. § 1345. You will call to mind that a well-known English advo- cate of codification, Mr. Justice Stephen, has prepared and pub- lished what he proposes for codes. That, so far, is an attempt at something like jurist work. Let our American advocates of codi- fication do the same ; and, when they have produced what all our courts accept as the embodied principles of the common law, reduced to their smallest proportions, the further question of their legislative enactment will present itself, not prematurely, but at its proper time. Then, if the codification doctrine as expounded by the American Bar Association prevails, we shall have the multiplication table and the entire arithmetic (" substantive prin- ciples " of law well compacted and " settled "), together with all the learning of the schools, put into form for the use of pupils, under the name of a statute. Now, — § 1346. " Best Minds." — I freely admit that, as uniformly claimed by the advocates of this sort of legislation, and conceded by every one of its opponents, they who favor it include all the " best minds " in our profession both in England and the United States. Still we who cannot see the superior truth ask leave to retain our opinions so long as we do not boast. Let us, there- fore, pause a moment upon this codification plan viewed as an arm of our public — » Keport for 1886, p. 74. Ayes 58, noes 41. 637 § 1348 SPECIAL. TOPICS AND IN EEVIEW. [BOOK VII. YI. Education for Governmental Functions. § 1347. From Reason to Command. — In one aspect, were it possible to codify the common law in terms which would avoid questions of interpretation, — a feat never yet accomplished in any legislation, — so that all would understand the code to mean what the common law did, and nothing further or different, judi- cial things might appear to go on afterward much as they did before. Of course, there could be no pretence that any good has been done, for neither in form nor in substance is there any change. What was settled before is no more than settled now. But, in another aspect, the change is vast. You have dropped from reason to the legislative "Be it enacted." To illustrate, ^- § 1348. If one brings suit for building a fence which is the hypotheuuse.of a right-angled triangle, for which, he was to be paid an agreed sum per rod, and the lengths of the perpendicular and base are severally proved, but not that of the hypothenuse, the length of the latter is matter of law, and the proofs are ade- quate. Now you enact a code providing that the square of the hypothenuse of a right-angled triangle shall equal the sum of the squares of the perpendicular and base. You will remember that, under the old system, if a boy in a class asked his master how this could be, the latter would draw the triangle on the black- board, extend his lines, and show how the problem is reasoned out. The boy's brain would be stirred, a step would be taken in teaching him to think. Under the new system, the master would say : " This is provided for by the one thousand three hundred and fiftieth section of our glorious code. It was explained by an old Greek named Euclid. Perhaps it was discovered before ; at any rate, it has long been settled. In the year 1886, there was a meeting of great lawyers at Saratoga, and fortunately the best minds were in the majority. Saratoga, please note, is a place of water ; hence it is certain that these best minds were not drunk. They resolved that whatever is settled should be enacted into a statute. Our legislature had the wisdom to follow the light; therefore, until the statute is so changed as otherwise to provide, the sum of the squares of the perpendicular and base shall be and remain the square of the hypothenuse. Now, boys, remem- ber that this is the rule for what are termed the braces in all 638 CHAP. LX.] LEGAL EEPORMS AND GOVERNMENT. § 1350 buildings. It is understood that the wicked political party, to which we do not belong, propose to change this statute, and make the square of the perpendicular equal to the sum of the squares of the hypothenuse and base. That change, it has been ascer- tained, will overturn every building in the State, and it is uncer- tain whether people can protect themselves by digging holes in the ground and getting into them. The better opinion is that, in this event, all things on the surface of the earth will be precipi- tated into its internal fires. To avoid this, as soon as you are old enough to vote, go to the polls ; and, under the pressure of dire necessity, you may be required to vote, not only early, but often." Now, — § 1349. Practically, — you say, the codification plan will not be carried to this absurd degree. And as to this particular prob- lem in mathematics, doubtless it will not be. But, if one thing already " settled " is to be turned into a statute, so that lawyers and courts will no more reason about it, why not everything, as the resolution in contemplation demands ? The proposition, in terms unlimited, is certainly meant to be of wide application. And, so far as the code extends, it works the oblivion of reason, and leaves so much less of it in the community. Our govern- mental affairs now stagger — our ship of state reels and plunges — because of the lack of reason. As fast as the practice of rea- soning is taken away, so fast do our governmental dangers thicken and multiply. And — § 1350. Law — is the only profession which teaches the sort of reason that governs the State. The lawyers, as already said, are the judges, and they are the great majority also of the execu- tive and legislative branches of the government. Should the cry for codification, under the eternal aspiration for laziness, prevail, and the element of reason which the practice and administration of the common law have carried into governmental affairs, be banished therefrom, the hitherto common-law nations will quickly cease to be leaders in the civilized world. INDEX TO THE CASES CITED. Note. — The plaintiifs name stands first, except where it is the State, Common- wealth, Kex, Eegina, or the like; then the defendant's is first. In re, or the like, is put after the principal word. The references are to the sections. Aaron v. Broiles, 104, 431, 743, 748. V. Second Ave. Rid., 464. Abbett V. Chicago, &c. Ry., 1043. Abbott V. Bradstreet, 1169. V. Kansas City, &c. Rid., 1000. V. Stewartstown, 872. Abel V. Delaware, &c. Canal, 150, 644, 652. Abernethy v. Van Buren, 459. Abraham v. Reynolds, 686. V. Western Union Tel., 1206. Abrahams v. Kidney, 382. Abrams v. Smith, 265, 308. Abrath v. North Eastern Ry., 221, 239, 240, 722. Absor t'. French, 162. Abt V. Burgheim, 824, 943. Accola 0. Chicago, &c. Ry., 811. Acheson v. Miller (18 Ohio, 1), 56. V. Miller (2 Ohio State, 203), 535. Achom V. Piper, 285. Acker v. Anderson, 960, 976. V. Campbell, 398. Ackerson v. Erie Ry., 1278. Ackroyd r. Smith, 868. Acton V. Blundell, 881, 885. Adams v. Beach, 430. B. Clark, 1192. V. Clem, 1172. ». Cost, 612. V. Emerson, 990. V. Freeman (9 Johns. 117), 707. V. Freeman (12 Johns. 408), 392, 823. V. Lancashire, &c. Ry., 43. «. Lisher, 242. u. Meyers, 938. V. Rivers, 1011. 1'. Savage, 704. V. Spangler, 796. 1). Van Alstyne, 802. 41 Adams v. Waggoner, 196. V. Wildes, 938. V. Young, 46, 834, 836. Adams Express v. Cressap, 1189. K. Darnell, 1187. ' Addington v. Allen, 319, 336. Agnew V. Corunna, 743, 758. V. Michigan Cent. Bid., 812. Ahem v. Collins, 218. . Aiken v. Western Union Tel., 1212. Aikin v. Western Rid., 954. Akers v George, 807. Akin V. Newell, 212. Akron v. McComb, 997. Alabama, The, 473. Alabama, &c. Rid. t>. Waller, 665. Alabama Great So. Rid. r. Arnold, 469. V. Chapman, 46, 1229. V. Hawk, 1106. u. Jones, 104,1024. V. McAlpine, 1229. Albany, Ex parte, 744. , People i: 748. Albany Bridge Case, 953. Albee v. Floyd, 743, 969. Albert v. Bleecker Street, &c. Rid., 1018. V. Northern Cent. Ry., 1027. V. State, 849. Albion V. Hetrick, 1013, 1070. Alderman v. French, 293. Alderson v. Waistell, 195. Aldred's Case, 412, 924. Aldrich V. Boston, &c. Eld., 612, V. Gorham, 46, 1018. V. Howard (7 R. I. 87), 426. V. Howard (8 R. L 246), 418, 426. V. Monroe, 1021. V. Tripp, 743, 750, 757. Aldridge v. Midland Blast Fnmace Co., 678. 641 AMO INDEX TO THE CASES CITED. ARM Alexander v. Milwaukee, 997. «. Eelfe, 723, 733. Alfele V. Wright, 267. Alger, Commonwealth »., 92. — V. Lowell, 513. Allegheny v. Zimmerman, 169. Allen V. Atlanta Street Rid., 1271. V. Burlington, &c. lild., 648. V. Chippewa Falls, 743, 975. , Commonwealth v., 1016. V. Crof obt, 392, 393. V. Freeholders, 71. V. Hickson, 342. V. Ogden, 406. V. Ormond, 875, 948. V. Smith (12 C. B. n. s. 638 ; 9 Jur. N. B. 230), 1172. V. Smith (76 Maine, 3.35), 426. V. Truesdell, 46. Allender v. Chicago, &c. Ky. (37 Iowa, 264), 1092. V. Chicago, &c. Ey. (48 Iowa, 476), 1089. Allentown v. Kramer, 743, 750, 751. AUerton v. Boston. &c. Kid., 1092. Ailing V. Boston, &c. Rid., 1154. Allison V. Chicago, &c. Rid., 52' B. Tyson, 318. Alpern v. Churchill, 464. Alpin V. Morton, 302. Alston V. Grant, 415. Altee V. South Carolina Ry., 649. Althorf V. Wolfe, 104, 440. Altnow V. Sibley, 743, 749, 766. Alton V. Midland Ry., 365. Altoona v. Lotz, 1012, 1013. Ambler v. Church, 781. Amelie, The, 163. American Contract Co. v. Cross, 1156. American Express v. Baldwin, 1186. V. Hockett, 1187. K.Perkins, 1188. V. Sands, 1075. f. Second Nat. Bank, 1191. V. Spellman, 1191. American Ins. Co. v. Crawford, 325. American Merchants' Union Exp. v. Wolf, 1186, 1190. American Steamship Co. v. Bryan, 1159. V. liandreth, 1137. American Union Express v. Robinson, 1186. Ames V. Snider, 239, 242. V. Union liy., 365. Amick V. O'Hara, 819, 943. Amies v. Sterens, 1152. Amondson v. Severson, 874. Amory v. Flyn, 1245. Amos V. Mobile, &c., Rid, 1271. Amoskeag, &c. Co. v. Goodale, 430. 642 Amstein v. Gardner, 1224. Anderson t'. Beck, 210. V. Dunn, 775. ». Friend, 236. w. McPike, 320. v. Milwaukee, &c. Ry., 671, 1281. V. Morrison, 651. V. Saylors, 56. V. Scully, 927. V. Winston, 677. Andrews, v. Askey, 379. V. Boedecker, 602. V. Capitol, &c. Rid., 1106, 1119. 1-. Marris, 792. V. Runyon, 609. V. Wheaton, 783. Andrist v. Union Pac. Ry., 1101. Angel I'. Pennsylvania Eld., 993. Angus V. McLachlan, 1181. V. Radin, 808, 929. Annapolis, &c. Kid. v. Baldwin, 1229. V. Gantt, 836. Annas v. Milwaukee, &c. Rid., 1271, 1273. Anne Arundal v. Dnckett, 744, 746. Anonymous (Cro. Eliz. 10), 833. (1 Dyer, 25 b. No. 162), 1234. (Lofft, 493), 370. (2 Mod. 306), 243. (6 Mod. 27), 132. (7 Mod. 62), 209. (12 Mod. 342), 417. (12 Mod. 415), 369. (12 Mod. 420), 814. (12 Mod. 521), 932. (12 Mod. 559), 722. (60 N. y. 262), 259, 262, 273. (1 Vent. 264 ; 3 Salk. 278), 802. Anthony ». Lapham, 890. ». Leeret, 671. V. Louisville, &c. Rv., 177, 1103. V. Slaid, 44. Antisdel v. Chicago, &c. Ry., 812. Apgar V. Woolston, 248, 249. Apitz V. Missouri Pac. Ry., 1229. Applebee v. Percy, 1234. Appleton V. FuUerton, 875. V. Nantucket, 986. , United States v., 923. Arasmith v. Temple, 614. Arcade Hotel v. Wiatt, 1169, 1170, 1171, 1180. Archer t>. New York, &c. Rid., 1086. Arctic Fire Ins. Co., v. Austin, 459. Ardesco Oil Co. v. Gilson, 665. Arkerson v. Dennison, 648, 649, Armil v. Chicago, &o. Ry., 1271. Armistead v. Wilde, 1175. Armory v. Delamirie, 936. Armour r. Hahn, 649, 665. Armstrong v. Brunswick, 743, 754. ». Cooley, 609. ATT INDEX TO THE CASES CITED. BAG Am V. Kansas, 743, 751. Arne v. Johnson, 270. Arnold v. Foot, 890. V. Illinois Cent. Rid., 1076, 1081. V. Norton, 555, 1225. Arthur v. Wheeler, &c. Co., 316. Artz V. Chicago, &c. Rid. (34 Iowa, 153), 1043. V. Chicago, &c. Eld. (38 Iowa, 293), 459. ». Chicago, &c. Rid., (44 Iowa, 284), 1025. Arundel v. McCulloch, 430, 822, 953. Ash V. Marlow, 236, 239. Ashbrook v. Frederick Avenue Ry., 1123. Ashby I). Blackwell, 480. W.White, 31, 134. Asher ». St. Louis, &c. Ey., 811. Ashley v. Manhattan Ry., 1027. Ashmore v. Pennsylvania, &c. Co., 1075. Ashworth i\ Stanwix, 657. Askew V. Hale, 743, 749, 766. Astlev V. Younge, 300. Aston V. Heaven, 1063, 1064, 1129. V. McClure, 983. V. Newton, 975. Atchison, &c. Rid. b. Brewer, 1161. V. Cash, 1229. V. Farrow, 665, 671. V. Johns, 1109. V. MeCandliss, 1106. 1). Moore, 665, 667. V. Morgan, 472. V. Riggs, 177, 184. V. Smith, 442. «. Weber, 510, 1115. Atkins V. Bordman, 873, 874. V. Elwell, 333. V. Merrick Thread Co., 651. B. Perrin, 348. Atkinson v. Detroit Free Press, 281. V. Goodrich Transp. Co., 39, 447. V. Newcastle, &e. Waterworks (Law Rep. 6 Ex. 404), 132, 446. V. Newcastle, &c. Waterworks (2 Ex. D. 441), 746. Atlanta v. Champe, 969. B. Dooly, 74.3, 751. Atlanta, &c. Ry. v. Ray, 677. V. Woodruff, 683. Atlanta Cotton Fac. v. Speer, 547, 650. Atlantic, &c. Rid. v. Burt, 1229. V. Dunn, 734. Atlantic Mut. Fire Ins. Co. v. Goodall, 730. Atlas, The, 39, 473. Atlee V. Packet Co., 473. Attaway ». Cartersville, 614. Attorney-General t'. Boston, 954. Attorney-General v. Cambridge Con- sum. Gas. Co., 428. V. Chambers, 172. V. Edison Teleph., 1213. V. Gas-light and Coke Co., 118. V. Guardians of Poor, 894. V. Hotham, 783. V. Leicester, 695. V. New York, &c. Rid., 425. D.Perkins, 426. !.•. Perry, 622. V. Steward, 412, 418, 426. V. Wilson, 518, 535. Atwater ii. Bodflsh, 871. II. Sawyer, 1167. Atwill V. Mackintosh, 282, 285, 304, 306. Auburn, &c. Plank Road v. Douglass, 100, 111. Auerbach v. New York Cent. &c. Rid., 1083. Augusta, &c. Rid. v. Dorsey, 680. 0. Renz, 1119. Augusta Factory v. Barnes, 556. Aurora v. Bitner, 74.3, 965. V. Brown, 1013. V. Parks, 978. Austin's Case, 866. Austin V. Barrows, 44. V. Culpeper, 280. V. Great Western Ey.,64, 571,1094. V. Miller, 1228. Avary v. Searcy, 805. Avegno w. Hart, 1016. Averill v. Williams, 707. Averitt v. Mnrrell, 835. Avery v. Bulkly, 525. Avey V. Atchison, &c. Eld., 1080. Avilla V. Nash, 665. Aycock l: Raleigh, &c. Eld., 1029. Ayer v. Chase, 369. Ayleswortli v. Chicago, &c. Eld., 812. V. St. John, 783. Ayre v. Craven, 254. • Ayres v. Birtch, 200. V. Sedgwick, 298. Babcock v. Chicago, &c. By., 1031. V. Gill, 939. l: Libbey, 332. V. New Jersey Stock-yard Co., 416, 418, 426. , People v., 954. Bachelder ». Heagan, 833. Backenstoe v. Wabash, &o. Ey., 132. Backhouse v. Bonomi (9 H. L. Cas. 503 ; 7 Jur. n. s. 809), 909. Backstack v. Banks, 199. Bacon v. Benchlev, 31. V. Michigan Cent. Eld., 728. V. Towne, 239, 242. V. Waters, 248. 643 BAL INDEX TO THE CASES CITED. BAB Badger «. Hatch, 929. V. Phinney, 398. Badgley v. Hedges, 300. Bagby v. Harris, 81. Baikie v. Chandless, 705. Bailey v. Bussing, 535. V. Culver, 869. V. Devereux, 111. V. Dodge, 241. II. New Haven, &c. Co., 1049. V. New York, 750. 0. Wiggins, 781. Baird v. Daly, 928. B. Pettit, 665. Bajns V. Syracuse, &c. Rid., 1024. Bakeman v. Talbot, 162, 874. Baker v. Allegheny Valley Eld., 644. V. Bolton, 1268, 1269. V. Brown, 890. V. Crosby, 872. 0. Dedhara, 743, 758. B. Frick, 869, 874. V. Hughes, 680. V. Madison, 975. V. Morris, 550, S65. B. Bobbins, 801. V. Shephard, 989, 990. y. State, 748. Baldwin b. Buffalo, 958. B. Calkins, 893. V. Casella, 1234. V. Cole, 406. V. Ensign, 1220. V. Greenwoods Tump., 1019. 8. Liverpool, &c. StSaras., 1188. B. St. Louis, &o. Ky. (63 Iowa, 210), 466. V. St. Louis, &c. By. (68 Iowa, 37), 657. B. United States Tel., 1206, 1209. V. Weed, 210. B. West, 319. Ball V. Armstrong, 1002. B. Bruce, 379, 380. ■». Nye, 412. V. Ray, 416, 420. B. Woodbine, 743, 752. Ballacorkish Silver, &c. Co. f. Harri- son, 881. Ballard b. Bond, 824. B. Dyson, 871. B. Tomlinson, 886. Ballou V. Chicago, &e. Ry., 646. Balsley v. St. Louis, &c. Rid., 1029. Baltimore b. Johns Hopkins Hospital, 959. B. PouUney, 753. 0. Stoll, 953. Baltimore, &c. Rid. v. Boteler, 513. B. Depew, 1038. V. Fifth Baptist Church, 116, 117, 118, 426, 729. 644 Baltimore, &c. Rid. v. Fitzpatrick, 442. 0. Jones, 665. B. Kean, 467. B. Leapley, 1101. V. McKenzie, 663, 665, 684, 737. B. MaU, 112, 1026, 1045. B. Mulligan, 1229. V. Owings, 1043. B. Rathbone, 1075. B. Reaney, 39, 104, 910. B. Rose, 847. B. Rowan, 649. B. Schultz, 812. V. Schwindling, 60, 586. B. State (30 Md. 47), 577, 584. B. State (36 Md. 366), 467. B. State (54 Md. 648), 1037. B. State (60 Md. 449), 1086. B. State (62 Md. 479), 1026, 1037. B. State (63 Md. 135), 1086. , State v., 459. o. Wightman, 1064, 1065, 1271. Baltimore, &c. Ry. v. McDonnell, 583, 586. B. Wilkinson, 1119, 1121. Baltimore, &c. Road v. Boone, 1125. B. Leonhardt, 1118, 1119. Baltimore, &c. Turnpike b. Cassell, 956, 1146. Baltimore City Pass. Ry. v. Kemp, 74. Baltimore Elev. Co. b. Neal, 653, 665. Bamberg b. South Carolina Rid., 1218. Bamford b. Turnley, 418, 419, 426. Bangor v. Lansil, 898. Bangor, &c. Rid. v. Smith, 144. Banister b. Pennsylvania Co., 609. Bank b. Butler, 481. Bank of Orange b. Brown, 73. Bankhead ». Brown, 869. Banks b. Highland Street Ry., 1004. B. Ogden, 958, 989. Bannagan b. District of Columbia, 743, 746. Banner Puh. Co. w. State, 772. Bannon b. Angler, 870. Bansemer v. Toledo, &c. Ry., 1186. Banta b. Savage, 325. Barhee b. Reese, 515. Barber's Case, 264. Barber v. Barber, 310. B. Dennis, 369. Barbin b. Police Jury, 111. Barbo b. Bassett, 442. Barbour «. Horn, 743. Barclay b. Commonwealth, 431. Barden v. Boston, &c. Rid., 1091. Bardwell v. Jamaica, 952. B. Mobile, &c. Rid., 1101. ». Purrington, 869. Barker b. Brahara, 522. V. Hannibal, &c. Rid., 1271. BAX INDEX TO THE CASES CITED. BEE Barker v. Richardson, 922. V. Savage, 1015. Barkley v. Wilcox, 889, 890, 898. Barley v. Chicago, &c. Rid., 459. Barlow v. McDonald, 459. Barnard v. Poor, 833. Barnes v. Chapin, 1228. 1'. Chieopee, 973. V. District of Columbia, 743, 749, 750, 757, 763, 766. V. Hathorn, 426. V. McCrate, 298. V. Marshall, 896. r. Martin, 191. V. Newton, 960, 962. V. Sabron, 889. K.Ward, 994. Barnett v. Reed, 245, 490. Baron v. Husband, 628. V. Sleigh, 245. Barr v. Flynn, 869. Barrett i'. Crane, 783. V. Singer Manuf. Co., 602. V. Spaids, 241. V. Third Ave. Rid., 39, 518. Barrington v. Turner, 1239. Barron v. Baltimore, 119. V. Eldredge, 1158. Barrow v. Lewellin, 286. Barry v. Croskey, 315. 1'. New York Cent. &c. Eld., 586, 1048. Barstow v. Old Colony Rid., 686. Bartholomew u. St. Louis, &c. Rid., 1161. Bartle, United States v., 945. ' Bartlett v. Boston Gas-Ught Co., 859. ■ V. Hooksett, 529. V. Prescott, 867. V. Western Union Tel., 1205, 1206, 1209. Bartley v. Richtmyer, 380. Barton v. Holmes, 277. V. Syracuse, 748. Barwick :;. English Joint Stock Bank, 611, 730. Basebe v. Matthews, 247, 249. Basely v. Clarkson, 499. Bass V. Chicago, &o. Ry., 1072, 1088. V. Edwards, 869. Basset v. Green, 931. Bassett v. St. Joseph, 452. V. Salisbury Manuf. Co., 31. Bassil V. Elmore, 273. Bastard v. Bastard, 1188. Bath V. Metcalf, 522. Bathrick e. Detroit Post, &c. Co., 305. Bauer v. Clay, 235, 241. V. St. Louis, &c. Ry., 680. Baugh V. Killingworth, 490. Baum V. Clau.se, 289. Baxendale v. McMurray, 420, 426. Baxter v. Bush, 565. V. Lansing, 938. «. Roberts, 651. V. Troy, &c. Rid., 1043. V. Warner, 524. Bay Shore Rid. v. Harris, 558, 586. Bayley v. Manchester, &c. Ky., 615, 1067. J" ' Baylis v. Lawrence, 308. V. Watkins, 706. Bays V. Hunt, 263, 305. Beach v. Cooke, 492. V. Fulton Bank, 727. V. Hancock, 191. V. Parmeter, 447, 1016. V. Ranrey, 254, 273. o. Schmultz, 938. V. Trudgain, 126. Beal V. Finch, 522. Bealet-. Posey, 1171, 1179. Bean v. Coleman, 875. V. Herrick, .315. V. Oceanic Steam Nav. Co., 644. V. Wells, 340. Bear River, &c. Co. v. Boles, 429. Beard v. Murphy, 906. Beardmore v. Tredwell, 426. Beardslee v. French, 929. Beardsley v. Bridgman, 267. V. Hartford, 973. V. Swann, 986. Beaty v. Perkins, 211. Beauchamp v. Powley, 1189. 1: Saginaw Min. Co., 831, 1004, 1271. Beaudean v. Cape Girardeau, 71. Beaumont v. Barrett, 775. Beaupre v. Pac. &c. Tel., 1207. Beazan v. Mason City, 743, 758. Beck V. Carter, 845, 994. , State v., 196. Beck^ B.TTaynes, 1179. Beckerle v. Weiman, 1017. Beckham v. Hillier, 587. Beckley v. Skroh, 422, 819. Beckman v. McKay, 406. Beckwith v. Griswold, 422. V. Oatman, 716. V. Shordike, 177, 819, 1238. V. Sturtevant, 164. Bedford v. McKowl, 379. Beecher v. Parmele, 197. V. People, 968. Beedle v. Morris, 1176. Beeler v. Jackson, 291. Beems v. Chicago, &c. Rid. (58 Iowa, 150), 683. V. Chicago, &c. Ry. (67 Iowa, 4.35), 1271. Beers v. Housatonuc Rid., 442. Beeson v. Green Mountain Gold Min. Co., 665, 690. 645 BEN INDEX TO THE CASES CITED. BIB Beeston v. Weate, 892. Begein v. Anderson, 426. Beliam v. New York, 469. Behm v. Armour, 678. Behn v. Kemble, 331. Behrens v. MuKenzie, 607. Beilfus V. New York, &e. Ky., 665. Beir v. Cooke, 412. Beisiegel v. New York Cent. Bid., 1026. Belair v. Chicago, &c. Ry., 1024. Belok V. Belck, 261, 267. Belfast, &c. Ry. v. Keys, 1154. Belford v. Canada Shipping Co., 927. Belk V. Broadbent, 220. Belknap v. Boston, &c. Kid., 1097. Bell V. Central Bid., 555. V. Cummings, 405. 1). Edwards, 993. V. Hannibal, &c. Eld., 1036. V. Hansley, 196. V. Leslie, 1225. V. McGinness, 288. V. McKinney, 745, 781, 783. V. Miller, 522. V. Pearcy (5 Ire. 83), 242. V. Pearcy (11 Ire. 233), 242. V. Riggs, 428. V. Stone, 280, 283. V. Wooten, 1271. Bellamy v. Borch, 270. Bellefontaine, &c'. Rid. v. Snyder, 683. Bejlefontaine Ry. v. Hunter, 1043, 1046; 1049. V. Beed, 1229. Bellman v. New York Cent. &c. Rid., 1068. Bellows V. Sackett, 830. Belo V. Wren, 305. Belt Rid. &e. Co. v. Mann, 1042. Belton V. Baxter (14 Abb. Pr. n. s. 404), 1148. V. Baxter, (54 N. Y. 245), 1018. Bemis v. Arlington, 743, 960, 976. V. Clark, 429. V. Connecticut, &o. Eld., 1229. Bendetson v. French, 1179. Benham v. Vernon, 211. Benjamin v. Storr, 71, 970. Benn v. Null, 649. Bennet v. Mellor, 1173, 1117. Bennett v. Allcott, 67, 380. V. Button, 1057, 1061, 1062, 1131. ». Fifield, 529. V. Fulmer, 789. V. New Jersey Eld. &c. Co., 1070, 1071. V. New Orleans, 746, 748 V. Terrill, 320. V. Truebody, 602. V. Williamson, 283. Bensoni). Bolles, 819. 646 Benson v. Chicago, &c. Rid., 889, 901. V. Maiden, &c. Gas-light Co., 955. Bent V, Graves, 783. Benthall v. Seifert, 898. Bentley v. Reynolds, 273. Benton v. Boston City Hosp., 743, 768. V. Central Rid., 470, 1043. V. Pratt; 315, 371. Bentz V. Armstrong, 898. Benzing v. Steinway, 647, 665, 667. Bepley v. State, 425. Bergman v. St. Louis, &c. Ry., 1038. Bergmaun v. Jones, 254, 284, 306. Bergbld v. Puchta, 271. Berkshire Woollen Co. v. Proctor, 1171, 1176. Bermondsey, Vestry of, v. Brown, 869. Bermuda, The, 1160. Bernina, The, 460, 468, 621, 578. Berns v. Gaston Gas Coal Co., 639. Berridge v. Ward, 989. Berringer v. Great Eastern Ey., 1111. Berry v. Carle, 267, 885. w. Cooper, 1075. !). Fletcher, 522, 523. w. Northeastern Rid., 1271, 1273. V. Pennsylvania Rid., 1044. Besozzi V. Harris, 1230. Besson v. Southard, 242. Best t>. Allen, 142, 814. , Reg. v., 356. Bettner v. Holt., 285. Betts V. De Vitre, 610. V. Lee, 939. Bevis V. Baltimore, &c. Eld., 467. Biddle ». Hestonville, &c. Ey., 1118. Big Mountain Imp. Co.'s Appeal, 863, 864. Bigelow V. Randolph, 755. V. Reed, 1009. V. Sprague, 286. Bigg's Case, 1228. Biggs V. Harris, 369. Bihler w. Gockley, 264. Billings V. Breinig, 140. V. Fairbanks, 802, 308. V. Worcester, 966. Billman v. Indianapolis, &c. Eld., 457, 611. Bills V. Belknap, 802. Binford v. Johnston, 1271. Binicker ». Hannibal, &c. Rid., 1229. Binks V. South Yorkshire, &c. Co., 994. Binney v. Proprietors in Hull, 802. Binstead v. Buck, 929, 1239. Birch V. Benton, 262. Birchley's Case, 271. Bird V. Holbrook, 847. V. Jones, 207. 1.'. Line, 245. V. Lynn, 522. ». Randall, 519. BLO IKDEX TO THE CASES CITED. BOS Birkett i>. Knickerbocker Ice Co., 1014. Birnbaum v. Crowninshield, 876. Birney v. New York, &c. Tel, 1206. Bisbey v. Shaw, 288. Biscoe V. Great Eastern Ey., 115. Bish V. Van Cannon, 33, 319. Bishop V. Banks, 412, 416. 1-. Pentland, 455. V. Kanney, 190 V. Shepherd, 374. V. Union Kid., 104, 447. V. Weber, 699, 702. V. Williamson, 600, 1199, I'XJl. Bissell V. New York Cent. Kid., 1 Bitting V. Ten Eyck, 242. Bixby V. Brundige, 228. V. Dunlap, 370. Bizzell V. Booker, 178, 439. Blachford i>. Dod, 240. Black V. Carrollton Rid., 555, 556. y. O'Hara, 869. Blackman v. Halves, 958. Blackstone v. Worcester, 949. Blackwell v. Phinney, 896. , State v., 194. Blades v. Higgs, 197, 1246. Blaen Avon Coal Co. v. McCuUoch, 499, 626. Blagg B. Sturt, 308. Blagge V. Ilsley, 382. Blais V. Minneapolis, &c. Ry., 1229. Blaisdell v. Stone, 1220, 1224. Blake v. Barnard, 194. ». Burke, 199. V. Ferris, 607. V. Lanyon, 372. V. St. Louis, 758. Blakemore v. Bristol, &c. Ry., 73. Blalock V. Randall, 248. Blanchard v. Allen, 874. V. Baker, 30, 890. V. Ilsley, 379. V. Western Union Tel., 1002. Blanchette v. Border City Manuf. Co., 680. Bland's Case, 263. Bland v. Adams Express, 1185. V. Southern Pac. Rid., 1097. Blann v. Crocheron, 521. Blaymire v. Haley, 378, 380. Bleke v. Grove, 546. Blenkiron v. Great Cent. Gas Con. Co., 834. Blesch V. Chicago, &c. Ry., 993. Blessing v. St. Louis, &c. By., 665. Bliss V. Greeley, 879. V. Kennedy, 890. V. South Hadley, 1009. Blizzard v. Walker, 801. Block V. Bonnet, 243. V. Meyers, 235, 236. Blodgett V. Bartlett, 1086. Blodgett V. Boston, 1009. V. Stone, 36. Blofeld V. Payne, 33, 339. Blood V. Hubbardston, 965. V. Nashua, &c. Rid., 430. Bloodgood V. Ayers, 878. Bloodworth v. Gray, 269. Bloomington v. Bay, 743, 977. Bloss V. Tobey, 266. Blossom V. Dodd, 1160, 1191. Blower v. Great Western Ry., 1218. Blumantle v. Fitchburg Rid., 1154. Blumb V. Kansas, 743. Blunt V. Zuntz, 308. Blyth V. Birmingham Waterworks, 436, 439, 440, 838. V. Topham, 845. Board of Works, Reg. v., 989. Boardman v. Brown, 644. Boatman v. Lasley, 868. Bocock V. Cochran, 781, 783. Bodenham v. Bennett, 1186. Bodkin v. Western Union Tel., 43, 1207. Bodwell V. Bragg, 1173. 0. Osgood, 222, 228. Bodwic V. Fennell, 738, 740. Boecher i: Lutz, 945, 1234. Bogard v. Louisville, &c. Ry., 658. Boggs V. Missouri Pac. Ry., 1^29. V. Vandyke, 816. Bohannan v. Hammond, 1152. Bohen v. Waseca, 743, 960, 971. Bohler v. Owens, 1175. Bohun V. Taylor, 819. Boice V. Hudson River Rid., 1083. Boing V. Raleigh, &c. Rid., 1229. Bolan V. Williamson (2 Bay, 551), 1200. B. Williamson (1 Brev. 181), 1200. Bolding V. State, 595, 596. Boldt V. Budwig, 275. Bolton B. Bolton, 872. V. Colder, 1016. V. Miller, 380. Bomar v. Maxwell, 1151. Bonafous v. Walker, 75. Bond B. Chapin, 488. Boner v. Adams, 786. Bonewits r. Wygant, 172. Bonnel v. Dunn, 794. Bonnell v. Delaware, &c. Rid., 1046. Bonomi V. Backhouse (Ellis, B. & E. 622), 909. Boogher b. Knapp, 281. V. Life Assoc, of Am., 731. Boorman v. Brown, 73. Booth B. Sanford, 453. Bost B. Mingues, 943. Boston B. Gray, 1004. V. Richardson, 989. V. Schaffer, 1261. Boston, &c. Rid. v. Chipman, 1084. 647 BRA INDEX TO THE CASES CITED. BRI Boston, &c. Rid., Commonwealth v. (121 Mass. 36), 1271. , Commonwealth u. (129 Mass. oOO), 1092. B. Proctor, 1083. , State »., 1271. Boston Glass Manuf. v. Binney, 371. Boston Rolling Mills v. Cambridge, 420. Boswortli V. Swansey, 62. Bott V. Pratt, 132, 137. Boulder v. Niles, 969. BouUemet v. State, 443. Boulter v. Clark, 196. Boulton, Reg. v., 1077. Bourland i;. Eidson, 292. Bourn v. Davis, 327. Bourne v. Stout, 239. Bovee v. Danville, 470. Bowditch B. Boston, 126, 819. Bowen v. Bowen, 938. B. Conner, 869. V. Hall, 370, 371. V. New York Cent. Rid., 1064. B. Sullivan, 936. Bower v. Chicago, &c. Ry., 1040. Bowes V. Tibbets, 369. Bowker v. Delong, 330. Bowlsby V. Speer, 898. Bowman b. California Steam Nav. Co., 11.37. B. Carithers, 335. B. Chicago, &c. Rid.. 1025. V. Tallman, 704. 1'. Woods, 710. Bowyer v. Burlaw, 137. Boyce b. Brockway, 403. V. Fitzpatrick, 684. B. Wabash Ry., 1281. Boyd B. Brent, 308. V. Browne, 316. B. Byrd, 379, .380. B. Conklin, 898. Boyden b. Achenbach, 876. V. Burke, 132, 135. Boyer ;;. State, 958. Boyle B. Brandon, 382. V. Tamlyn, 802. Boynton b. Foster, 783. Brabbits b. Chicago, &c. Ry., 665, 668. Brace ». New York Cent. Rid., 951. Brackenridge v. Holland, 938. Bradbee b. Christ's Hospital, 919. Bradbum b. Morris, 871. Bradbury v. Goodwin, 646. B. Haines, 325. Bradford v. Floyd, 502, 1227. Bradley v. Copley, 397. V. Cramer, 129, 534. ». Davis, 391. V. Fisher, 296, 780, 781, 782, 783. W.Gill, 426. 648 Bradley i-. Nashville, &C. Ry., 686. Bradshaw v. South Boston Bid., 1078, 1125. Bradt v. Towsley, 274. Brady b. Ball, 8U1. B. Richardson, 783. V. Weeks, 426. Brainard v. Head, 792. Brakeley v. Tuttle, 938. Brakely b. Sharp, 890. Brakken b. Minneapolis, &c Ry., 71, 989, 992 Branch v. Libbey, 1002. E. Planters Loan, &c. Bank, 404. Bransom v. Labrot, 100, 854. Branstetter b. Dorrongh, 257, 534. Brassell v. New York Cent. &c. Rid., 1086. Braveboy v. Cockfield, 228, 239. Brayman v. Whitcomb, 929. Brazil v. Western N. C. Rid., 671. Brazil, &c. Coal Co. b. Cain, 665, 671. Brechbill b. Randall, 92. Breed, Commonwealth v., 953. Breese v. United States Tel. (45 Barb. 274), 1206. V. United States Tel. (48 N. Y. 132), 1209. Brehme v. Adams Express, 1191. Brennan v. Friendship, 1012. B. Gordon, 651. Brent b. Kimball, 1239. Brentner b. Chicago, &c. By., 1229. Bresnahan v. Michigan Cent. Bid., 1037. Bretherton b. Wood, 1058. Brewer b. Bowman, 869. B. FUnt, &c. By., 677. Brewster v. Silliman. 401. B. Warner, 928. Brice v. Bauer, 1235. Brick i: Rochester, &c. Rid., 639, 664. Brickner v. New York Cent. Rid., 648. Bridgeport Bank b. New York, &a Rid., 1279. Bridges v. Hawkesworth, 936. 8. North London Ry., 442. Briesen b. Long Island Rid., Ill, 117. Brig Collenberg, The, 1218. Briggs V. Boston, &c. Rid., 404. B. Evans, 382. V. Garrett, 302, 30.5. V. Wardwell, 784. Brigham v. Smith, 872. Bright V. Lucas, 369. V. Patton, 209. Brighthope Ry. v. Rogers, 1028, 1029. Brignoli v. Chicago, &c. Ry., 1103. Brill B. Flagler, 413, 416. Brinsmead b. Harrison, 521. Bristol V. Burt, 403. Brite v. GUI, 265. BBO INDEX TO THE CASES CITED. BUG British Castplate Manuf. o. Meredith, 997. British Mut. Banking Co. v. Charn- wood Forest By., 329. Britton v. Curamington, 1006. V. Niccolls, 481. Brittridge's Case, 263. Broad v. Deus'ter, 285. Broadbent v. Eamsbotham, 891. Broadwater v. Blot, 1180. Broadwell v. Kansas, 743. Broadwood v. Granara, 1181. Broburg v. Des Moines, 978. Broder v. Saillard, 415. Broderiek v. Detroit Union Eld. &c. Co., 848. 0. James, 24, 276. Brodie v. Kutledge, 781. Brokaw v. New Jersey Eld. &c. Co., 725. Bromage v. Prosser, 231, 257. Bronk v. New York, &c. Eld., 1043. Bronson v. Bruce, 129. V. Southbury, 579, 584, 978. V. Wallingford, 743. Brook V. Montague, 300. V. Eawl, 347, 348. V. Wise, 269. Brooke v. Pickwick, 1152. Brooker v. Coffin, 254, 261. Brookfleld v. Walker, 426, 959. Brooking v. Shinn, 314. Brooklyn, People «., 119. Brooklyn, &e. Eld. v. Coney Island, &c. Eld., 980. Brooks V. Ashburn, 522. V. Bemiss, 288. V. Harrison, 1182. w. Olmstead, 499. V. Reynolds, 923. V. Schwerin, 1015. V. Somerville, 743, 961, 962, 967. V. Topeka, 958. Brookshaw v, Hopkins, 510. Broome v. New York, &c. Telephone Co., 993. Brossman v. Lehigh, 675. Brother v. Cannon, 792. Brothers v. Cartter, 653. V. Morris, 503. Broughton v. Singleton, 1247. Brow V. Hathaway, 291. Brown, In re, 748. V. Accrington, &c. Co., 650. V. Allen, 518. U.Atlanta, 743. V. Berry, 869. V. Bowen, 893. V. Bridges, 36. V. Byroads, 680. V. Cayuga, &c. Eld., 422. V. Chapman, 211. Brown v. Chicago, &o. Ey., 675. V. Collins, 182. V. Congress, &c. Ey., 443, 1122. V. Duplessis, 980. V. European, &c. Ey., 581, 587. B. Feeter, 490. V. Giles, 1238. V. Gordon, 200. V. Gray, 332. V. Hannibal, &c. Eld. (50 Mo. 461), 150, 1048. ». Hannibal, &e. Eld. (66 Mo. 588), 1095, 1097. 1: Hoburger, 1239. V. Hodgson, 1186. B. lUius (25 Conn. 583), 886. V. lUius (27 Conn. 84), 412. V. Kencheloe, 519. V. Kendall, 177, 178, 181. V. Lakeman, 248. 1;. Lent, 522. V. Manter, 819. V. Milwaukee, &c. Ey., 459, 1026, 1043. V. Minneapolis, &c. Ry., 665. V. Murdock, 768, 773. V. Northcutt, 938. v. Perkins (1 Allen, 89), 522, 523, 819. V. Perkins (12 Gray, 89), 430. V. Purviance, 614. V. Eandall, 247. V. Robins, 906. V. Sennett, 659, 665. V. Smith, 275. v.^ Southbury, 1020. V. Stone, 873. V. Wabash, &c. Ry., 1160. V. Webber, 783. V. Werner, 914, 917. V. Winona, &c. Eld., 639, 659, 665, 666. Brownell v. Dyer, 874. Browning v. Long Island Eld., 1072. V. Magill, 932. V. Newman, 274. ■^v. Springfield, 758. Bruch V. Carter, 819. Brunell v. Hopkins, 837. Brunswick, &c. Eld. v. Gale, 1063, 1064. V. Hoover, 1049. Brunton b. Hall, 869, 875. Brusberg v. Milwaukee, &c. Ey., 1027. Bryan v. Blythe, 783. Bryant v. American Tel., 1207. — — V. Burlington, &c. Ey., 675. V. Jackson, 257, 506. u. Bich, 611. B. St. Paul, 743, 768. O.Ware, 938. Buchanan v. Smith, 405. Bucher v. Fitohburg Eld., 62. 649 BUE INDEX TO THE CASES CITED. BUT Bucher v. New York Cent. &c. Eld., 1101. Buck ». Ashley, 406. V. Moore, 1238. Buckeye, The, 443. Buckingham v. Elliott, 412, 819. V. Fisher, 852. Buckland v. Johnson, 899. Bucklew V. Central Iowa Ry., 680. Buckley v. Gould, &c. Co., 639, e65. V. Leonard, 1234. V. New York, &c. Rid., 442. Bucklin v. Truell, 420. Buckner, State v., 1006. Buel V. New York Cent. Eld., 445. Buell V. Chapin, 442, 482. Bueneraann v. St. Paul, &c. Ry., 1086. Buesching v. St. Louis Gas-light Co., 470, 994, 1146. Buffalo Lubr. OU Co. v. Standard Oil Co., 728. Buffett V. Troy, &c. Eld., 1092. Bulger V. Albany Ry., 576, 1148. Bulkley v. Smith, 518. Bull H. Mobile, &c. Eld., 671. Bullard v. Harrison, 162. V. Mulligan, 61, 807. Bullock V. Babcock, 177, 565. 17. New York, 101.3. Bunch V. Edenton, 960, 972, 973, 977. V. Great Western Ey., 1158. Bundy v. Dodson, 374. Bunnell v. St. Paul, &c. Ey., 654, 656. Bunt V. Sierra Buttes Gold Min. Co., 680. Bunting v. Central Pac. Eld., 1049. Burbank v. Bethel Steam Mill, 606. V. Chapin, 1179. Burokhalter v. Coward, 288, 310. Burden v. Mobile, 890. Burdett v. Abbott, 775. Burdick v. Cheadle, 859. Burford v. Grand Eapids, 743, 752. Burgess v. Carpenter, 370. V. Clements, ll75. , Rex v., 871. Burgin v. Burgin, 397. Burgundia, The, 576, 1137. Burham v. St. Louis, &c. Bid., 463. Burhans v. Sanford, 242. Burke i>. De Castro, &c. Co., 441. V. Shaw, 612. -^ , State IT., 824. Bnrkett v. Bond, 4.S9. Burlingham w. Wylee, 209. Burlington, &c. Eld. v. Crockett, 666. V. Shoemaker, 811. ». Webb, 1229. V. Westover, 1029. Bumap V. Albert, 225, 235, 244. V. Marsh, 707. Burnard v. Haggis, 566, 567. 650 Burnell v. New York Cent. &c. Eld., 1161. Burnett v. Burlington, &c. Eld., 1086. V. Lynch, 78. Burnham v. Boston, 992. V. Grand Trunk Ey., 1078. V. HotchkisE, 4-30. V. McQuesten, 958. V. Nevins, 923. B. Stevens, 781. Bums V. Chicago, &c. Ey., 646. V. Erben, 230. V. North Chicago Eolling Mill, 1024. Burr !;. Plymouth, 1013. u. WUlson, 327. Burrill v. Augusta, 743, 762. Burris v. North, 236. Burroughes v. Bayne, 403. Burroughs v. Saterlee, 879. Burrows v. Erie Ry: (63 N.Y. 556), 1101. V. Erie Ry. (3 Thomp. & C. 44), 1101. V, March Gas, &c. Co., 526. Burt V. Boston, 964. V. Place, 242. Burtch V. Nickerson, 271. Burton v. Beasley, 261. V. Burton, 262. V. Calaway, 391. V. Chattanooga, 426. V. Fulton, 771. K. McClellan, 819. V. St. Paul, &c. Ry., 239, 240. V. West Jersey Ferry, 954, 1140. V. Wilkinson, 816, 817. Burwell v. Vance, 428, 743, 748. Busby V. Holthaus, 905. Buseher v. Scully, 267. Buse V. Russell, 172. Bush V. Brainard, 801, 845. V. Peru Bridge, 954. V. Sprague, 320. Bushby v. New York, &c. Eld. (37 Hun, 104), 644. V. New York, &c. Eld. (107 N. Y. 374), 647. Bushell's Case, 297. Bushnell v. Robeson, 426. Bussian i-. Milwaukee, &c. Ey., 983. Buster v. Newkirk, 1245, 1251. Butcher v. Vaca Valley, &c. Eld., 451. Butchers Union Slaughter-bouse, &c. Co. V. Crescent City Lire Stock, &o. Co., 241. Butler V. Bangor, 605. V. Hudson River Eld., 1154. V. Jones, 406. V. Kent, 31. V. Manchester, &c. Ey., 1096. V. Milwaukee, &c. Ey., 150, 1037. V. Peck, 842, 898, 901. CAM INDEX TO THE CASES CITED. CAR Butler V. Thomasville, 743, 751. Butt V. Imperial Gas Co., 108. Butterfield ■/.. Ashley (6 Cush. 249), 377. V. Ashley (2 Gray, 254), 374. V. BufEum, 277. V. Forrester, 104, 459, 1012, 1017. Buttriuk v. Lowell, 761. Buzard v. Houston, 819, 825. Byam v. Collins, 302, 304. Byne v. Hatcher, 616. -^— V. Moore, 222, 227. Byrne v. New York Cent. &o. Rid., 1048. Byrnes v. Cohoes, 743, 751. Cabot V. Christie, 880. Cadigan v. Brown, 428. Cady V. McDowell, 1182. Caesar v. Curseny, 270. Cahill V. Eastman, 106, 839. i: Hilton, 680. V. Layton, 1004. V. London, &c. Ey., 1154. Cain V. Devitt, 376. V. Dickenson, 325. i: Syracuse, 743, 748. Cairo, &e. Eld. v. Stevens, 902. Calder v. Smalley, 518, 995. Caldwell V. Bennett, 240. V. Henry, 330, 337. Caledonian Ey. u. Walker, 111. Calef V. Thomas, 225, 431. Calkins v. Sumner, 298. Callahan v. Bean, 570, 576. V. Des Moines, 743, 983. V. Warne, 442. Callanan v. Oilman, 428, 986. Callendar v. Marsh, 997. Calumet Iron, &c. Co. v. Martin, 471. Calvert v. Stone, 816. Calvo V. Charlotte, &c. Eld., 659, 665. Calye's Case, 1171, 1177. Camden, &c. Land Co. v. Lippineott, 172. Camden, &c. Eld. v. Hoosey, 1091. Cameron v. Lightfoot, 211. V. Reynolds, 628. Camp V. Flaherty, 801. V. Hartford, &c. Steamb. Co., 1160. Camp Point Manuf. Co. v. Ballou, 646. Campbell v. Bannister, 286. V. Boyd, 876. V. Bridwell, 801. V. Campbell (3 Stock. 268), 376. V. Campbell (54 Wis. 90), 277. V. Cooper, 371. V. Laclede Gas-light Co., 172. V. Mesier, 914. V. New York, &c. Eld., 809. V. Perkins, 566. Campbell v. Phelps, 56. V. Philadelphia, 997. V. Portland Sugar Co., 853. V. Race, 102, 822. V. Seaman, 416. V. Smith, 892. V. Stakes, 146. V. Stillwater, 39, 1018. Campton, State v., 952. Candee «. Western Union Tel, 1209. Candy v. Spencer, 1177. Canfield v. Baltimore, &e. Eld., 1075. Cannon v. Boyd, 867. V. Overstreet, 819. Canot V. Hughes, 406. Canterbury v. Boston, 1020. , State v., 952. Cantling v. Hannibal, &e. Eld., 1157. Cantrell v. Adderholt, 943. Capehart v. Seaboard, &c. Eld., 1160. Capers v. Wilson, 874. Capper v. Louisville, &c. Ey., 665. Carew v. Eutherford, 355, 369, 365. Carey i-. Berkshire Eld., 1268. V. Brooks, 424. u. Eae, 872. Carhart v. Auburn Gas-light Co., Ill, 426, 894. Carl V. Ayers, 2.39. Carlisle v. Brisbane, 1070. V. Cooper, 429. Carlock v. Spencer, 306. Carman v. Steuben ville, &o. Rid., 604. Carothera v. MoIUienny Co., 232. Carpenter v. Boston, &c. Rid., 1086 V. Eastern Transp. Line, 442. V. Halsey, 822. V. Nashua, 960. V. St. Louis, &c. Ry., 1229. V. Tarrant, 264. Carr v. jTorthern Liberties, 743, 746. Carrier v. Dorrance, 1228. Carriger v. East Tennessee, &o. Rid., 440. Carrington v. St. Louis, 743, 758, 967. Carroll v. Minnesota Valley Rid., 125. !). Missouri Pac. Ry., 1271. V. Stateu Island Rid., 64, 1058, 1137. V. Weiler, 1240. V. White, 264, 277. Carruthers v. HoUis, 802, 807, 929. Carslake v. Mapledoram, 254, 269. Carson v. Central Rid., 982. Carstairs v. Taylor, 838. Carter v. Andrews, 265. I). Berlin Mills, 602. V. Chambers, 1021. II. Columbia, &c. Rid., 60, 4-36, 1052. V. Harden, 321. V. Kansas City, &c. Ey.,1028, 1029. 651 CIIA INDEX TO THE CASES CITED. CHI Carter v. Louisville, &c. Ey., 61, 1051. V. Murcot, 1254, 1255. , Rex v., 738. Cartriglit v. Belmont, 972, 974. Cartwright v. Chicago, &c. By., 1101. Gary v. Allen, 282. V Daniels, 890. V. Webster, 626. Casebeer v. Brahoble, 247. V. Riee, 243, 247. Casey v. Arnott, 347. V. Sevatson, 239. Cashilli). Wright, 1175. Casperson v. Sproule, 242. Cass V. New Orleans Times, 288. Cassady v. Magher, 515. Casselman v. Winship, 264. Cassida v. Oregon Ry. &o. Co., 586, 1037. Cassidy v. Maine Cent. Rid., 665, 666. Castleberry v. Atlanta, 990. Castner v. Sliker, 199. Castrique v. Behrens, 247, 249. Cate f. Cate, 819. Catron v. Nichols, 833. Catts V. Phalen, 565. Caughey v. Smith, 372, 375, 377. Cauley v. Pittsburgh, &c. Ry. (14 Nor- ris, Pa. 398), 579, 590. 0. Pittsburgh, &c. By. (2 Out. Pa. 498), 588. Cavanagh v. Boston, 743, 765. Cayerly v. McOwen, 704. Carey v. Ledbitter, 419, 426. Cayzer v. Taylor, 438. Centerville v. Woods, 743, 969, 1003. Central Rid. v. Brinson, 1037. V. Crosby, 125. V. DeBray, 683. V. Freeman, 1064. V. Harrison, 652. V. Haslett, 678. w. Russell, 1025. V. Van Horn, 466, 1101. ». Whitehead, 1092. Central Rid. &c. Co. v. Dixon, 1053. V. Letcher, 1109. V. Perry, 1092, 1099. Central Trust Co. v. Wabash, &c. By. (26 Fed. Rep. 896), 1037. V. Wabash, &c. Ry. (26 Fed. Rep. 897), 680. V. Wabash, &o. Ry. (27 Fed. Rep. 159), 1044. V. Wabash, &c. Ry. (31 Fed. Rep. 246), 586. Central Union Teleph. v. Bradbury, 1213. Centralia v. Scott, 1019. Cesar v. Karutz, 414. Chaddock v. Briggs, 266. Chaffee v. Boston, &c. Rid., 1099. 652 Chalker v. Dickinson, 1254. Chamberlain v. Boyd, 270. V. Enfield, 991. V. Masterson, 1175. V. Western Transp. Co., 1152. V. White, 525. Chamberlaine v. Willmore, 525. Chambers u. Robinson, 228. V. Western N. C. Rid., 680. Champaign v. Patterson, 743. Champer v. State, 196. Champion v. Vincent, 30. Champlin v. Pendleton, 989. Champney v. Smith, 404. Chandler v. Commonwealth, 565. Chanet v. Parker, 522. Chapman v. Cawrey, 241. V. Dunn, 241. V. Erie Ry., 655. V. New Haven Bid., 1071. w. Pickersgill, 139, 245. V. Bothwell, 852. ' V. Woods, 248. Chappell V. Oregon, 1019. Charles Eiver Bridge v. Warren Bridge, 952. Charless v. Rankin, 910. Charleston Bice Mil. Co. v. Bennett, 989. Charlestown, Commonwealth, v., 953. Cliarnock b. Bose, 866. Chartered Mercantile Bank v. Nether- lands, &c. Nav. Co., 1070. Chartiers v. Langdon, 743, 766. Chartran v. Sclmildt, 399. Chase v. Cleveland, 978. V. Corcoran, 936. V. Heaney, 700. V. Maine Cent Rid., 1043. V. Perry, 872. V. Silverstone, 879. Chasemore v. Richards, 877, 880, 885, 912. Ohataigne v. Bergeron, 104, 151. Chatfield v. Comerford, 241. V. Wilson, 22, 878, 883. Check V. Little Miami Eld., 1158. Cheetham v. Hampson, 806, 864. Cheney, Commonwealth v., 743. V. O'Brien, 869. Cherry v. Stein, 924. Chesapeake, &c. Bid. v. HIggins, 1271. Chesapeake &c. Teleph. v. Baltimore, &c. Tel., 1213. Chesley v. King, 883. V. Tompson, 254. Chester ». Alker, 990. V. Porter, 576. Chicago V. Bixby, 1012. 1: Glanville, 963. V. Hesing. 579, 1014. V. Keefe, 743, 1010, 1271. CHI INDEX TO THE CASES CITED. CHI Chicago V. Martin, 734, 743. 0. Murphy, 743, 964. «. Bobbins, 535, 606, 743. V. Schmidt, 1018. V. Smitli, 963. V. Stearns, 471. Chicago, &c. Rid. v. Addizoat, 1161. V. Austin, 1271. V. Becker, (76 III. 25), 576. 1'. Becker (84 111. 483), 578, 579, 586, 1047. y. Bell, 1043, 1147. v. Bills, 1068,1097. V. Bingenheimer, 683. V. Boggs, 1026. V. Boyce, 1161. V. Bradfield, 1229. V. Bragonier (11 Bradw. 516),665. V. Bragonier (119 111. 51), 645. ». Casey, 619. V. Clark, 677. V. Clayton, 1158. V. Collins, 1156. V. Conklin, 1154. V. Dickson, 611. V. Dignan, 680. V. Dillon, 471. V. Douglierty, 471. W.Doyle, 665, 669. V. Dunn, 471. V. Fairclough, 1161. V. Fears, 1045. «. Fisher, 1078. «. Flagg, 1080. V. Flexraan, 1068. V. Garvy, 441. V. Gasaway, 736. V. Geary, 665. V. Gregory (58 HI. 226), 579, 586. V. Gregory (58 111. 272), 471. w. Griffin, 1078. V. Guertin, 812. V. Haggerty, 1229. V. Harwood, 1043, 1271. V. Hedges, 1036, 1043. w. Henderson, 1026. V. Houston, 1037. V. Jacobs, 1045. V. Johnson, 436, 442, 471, 475. ». Jones, 445, 1229. '». Keefe, 665, 669. V. Lammert, 104, 576, 1051. V. Lee, 1026. V. Loeb, 1027. V. Lonergan, 646, 683. V. McAra, 11Q4. V. McDaniels, 38. ». McDonald, 665, 1026. V. McGaha, 1049. V. McLaughlin (47 lU. 265), 854. W.May, 665, 667. V. Miohie, i092, 1094. Chicago, &o. Eld. v. Murphy (58 111. 336), 665, 666, 673. V. Murray (62 111. 326), 471. V. Murray (71 111. 601), 686. V. O'Bryan, 665. V. O'Connor (13 Bradw. 62), 471. V. O'Connor (119 lU. 586), 442, 1271. V. Olson, 1037. V. Payne, 471. V. Pondrom, 471, 1107. w. Pounds, 1271. V. Pratt, 644. V. Robinson (8 Bradw. 140), 471. V. Robinson (9 Bradw. 89), 1043. V. Rogers, 469. V. Rung, 683. V. Schroeder, 1268. V. Seirer, 1229. V. Simmons, 665. w. Simms, 1160. V. Smith (11 Bradw. 348), 1027. V. Smith (18 Bradw. 119), 646. V. Stites, 645. V. Stumps (55 111. 367), 1023. V. Stumps (69 111. 409), 104, 179, 438. V. Sullivan, 514, 647, 653. V. Sykes, 1053. V. Umphenour, 812. V. Ward, 676. V. Welsh, 586. Chicago, &c. Ry. ». Bannerman, 1077, 1078. V. Barrett, 1068. !). Barrie, 812. u. Bayfield, 614, 1271. V. Campbell, 1229. V. Carey, 1271. V. Chisholm, 1095, V. Coss, 470, 471, 1086. V. Diehl, 811. V. Donahue, 459, 465, 471, 680. V. Eininger, 587, 1038. V. Fillmore, 1086. V. Gertsen, 1043. V. Givens, 1025. W.Harris, 471, 1229. w. Hatch, 1043. V. Herring, 1097. V. Hughes, 150, 1119. w. Jackson, 644. V. Lundstrom, 665. V. McLaughlin (119 U. S. 566), 665, 690. W.Merrill, 1190. V. Murphy (17 Bradw. 444), 471. w. Peacock, 1097. w. People, 1072. w. Ross, 639, 665, 669. V. Ryan, 1049. w. Smith (46 Mich. 504), 676, 1051. 653 CLA INDEX TO THE CASES CITED. CLE Chicago, &c. Ry. v. Snyder, 680. V. Sweeney, 471, 1040. V. Thorson, 1271. V. Williams, 1061, 1072, 1088, 1097. Ctiicago City Ry. v. Hennessy, 603. V. Young, 1118, 1119. Chicago West Div. Ry. v. Mills, 1122. Chichester v. Lethbridge, 950. Chickering v. Robinson, 781. Chidester v. Consolidated Ditch Co., 442, 819. Child, Commonwealth v., 255. V. Homer, -292. Childs V. Bank of Missouri, 731. V. Napheys, 918. V. New Orleans City Rid., 1148. Chipman v. Bates, 822. u. Cook, 271. Chorley v. Bolcot, 708. Christal v. Craig, 264. Christenson V. American Express, 1160, 1185. Christian v. Welch, 565. Christie v. Griggs, 1063, 1129. Christopherson v. Bare, 196. Christy v. Smith, 1200. Chrystal v. Troy, &c. Rid., 588, 590. Chunot V. Larson, 1238, 1240. Church V. McLeod, 929. V. Mumford, 73. , State v., 194. Church of Ascension v. Buckhart, 415. Churchill v. Chicago, &c. Bid., 1082. V. Evans, 801. V. Holt, 451, 535. V. Siggers, 221, 243. Churchward v. Studdy, 1246. Cihak V. Klekr, 872. Cincinnati v. White, 958. Cincinnati, &c. Rid. v. Butler, 470, 1026. V. Chester, 203. 11. Eaton, 1271. V. Marcus, 1155. V. Pontius, 1160. V. Ridge, 802. V. Skillman, 1080, 1097. Cincinnati, &e. Ry. v. Parker, 811. Cincinnati, &c. St. Ry. v. Camminsville, 997. Circleville v. Neuding, 605. Citizens Gas-light, &c. Co. ». O'Brien, 649. Citizens Street Ry. v. Steen, 466, 1015. City of Hartford, The, 473. Clack V. White, 869. Claflin V. Boston, &c. Rid., 405. Clap, Commonwealth v., 280. Clapp V. Devlin, 303. Clardy v. St. Louis, &o. Ry., 812. Clarissy v. Metropolitan Fire Dep , 743, 750. Clark w. Baird, 319. 654 Clark V. Bales, 522. V. Barnes, 861. V. Binney, 280. V. Burns, 1169. . V. Chamberlain, 934. V. Chambers, 631. V. Close, 891. V. Dasso, 990. i>. Eighth Avenue Rid. (32 Barb.' 657), 1106. V. Eighth Avenue Rid. (36 N. Y. 135), 1119. V. Epworth, 743, 758. V. Famous Shoe, &c. Co., 125, 851. V. Fitch, 380, 699. V. Foot, 833. V. Fry, 986. V. Keliher, 943. u. Lebanon, 629, 1019. V. Lockport, 758. V. Missouri Pac. Ry., 1043. V. Molynenx, 306. V. Nelson Lumber Co., 938. V. New York, &c. Rid., 846. V. Newsam, 624. V. Richmond, &c. Rid., 680. w. Rochester, 743. V. St. Louis, &c. Ry., 74. i;. St. Paul, &c. Rid., 680. V. Stipp, 804. V. Union Ferry, 954. V. Wilmington, &c. Rid., 1095. Clarke i: Chicago, &c. Ry., 1029. 1'. Rochester, &c. Rid., 1218. Clarkson v. Wabash, &c. Ry., 811. Clary v. Willey, 1175. Classen v. Leopold, 1175. Clatsop Chief, The, 665. Clawson v. Primrose, 924. Claxton V. Lexington, &c. Rid., 146, 442, 475. Clay V. Wood, 466, 1017. Clearke v. Gilbert, 265. Cleaveland v. Chicago, &c. Rid., 1229. Cleaves v. Jordan, 949. Cleghorn w. New York Cent. &c. Rid., 614. Clemence v. Auburn, 997. Clement r. Chivis, 255. V. Creditors, 316. V. Western Union Tel., 1209. Cleveland v. Citizens Gas-light Co., 412, 418, 419. 1>. Detweiler, 267. V. New Jersey Steamb., 1092, 113". Cleveland, &c. Rid. v. Bartram, 1082. V. Crawford, 1271. I'. Curran, 1081, 1160. V. Elliott (4 Ohio State, 474), 801. v. Manson, 583, 1070. V. Rowan, 470, 1048. V. Swift, 1229. COL INDEX TO THE CASES CITED. CON Cleveland, &o. Rid. v. Walrath, 1113. Cleveland, &c. Ey. v. Elliott (28 Ohio State, 340), 1041, 1043. Clifford V. Cochrane, 44, 532. V. Denver, &e. Rid., 73, 641. V. Old Colony Rid., 665. V. Tyman, 1016. Clifton V. Grayson, 209. B. Wells, 269. Cline I'. Templeton, 57. Clinton v. Howard, 976. V. Myers, 890. ». Root, 1139. Cloon V. Gerry, 240. Clopton r. Cozart, 335. Closson «. Staples, 235, 244. Clotworthy v. Hannibal, &o. Rid., 1101. Cloughessey v. Waterbury, 743, 965. Glowers v. Wabash, &c. Rid., 665. Clute V. Wiggins, 1173. Coates V. Acheson, 1181. Cobb V. Abbot, 599. Cockayne v. Hodgkisson, 303. Cockcroft V. Smith, 199. Cocke V. Jennor, 519. Cockrill V. Hall, 326. Coddington o. Brooklyn Crosstown Rid., 1116. Codman v. Evans (1 Allen, 443 ; 5 Al- len, 308), 417, 990. V. Evans (7 Allen, 431), 429. Cody V. Adams, 101, 209. V. Central Pac. Rid., 1084. 0. Quinn, 792. Coffey, Commonwealth v., 546. Coffin V. Coffin, 801. Cogbum V. Spence, 792. Coggs V. Bernard (Holt, 131), 1152. V. Bernard (2 Ld. Raym. 909; 1 Salk. 26 ; 3 Salk. 11, 268), 74, 1153. Cogswell V. New York, &c. Rid., 115, 425. Cohen v. Cleveland, 743, 751, 997. 1>. Frost, 1159. V. Hume, 954. V. Haskisson, 825. Coker v. Birge (9 Ga. 425), 411. V. Birge (10 Ga. 336), 426. Colbum V. Richards, 890. Colby V. Reynolds, 259. Colchester v. Brooke, 480. Cole V. Cassidy, 319. V. Chicago, &c. Ry., 678. V. Curtis, 236, 239, 240. V. Drew, 989, 990. V. Fisher, 151, 192, 447, 1147. V. Perry, 298. V. Turner, 192. V. Western Union Tel., 1210. Cole Silver MIn. Co. v. Virginia, &c. Water Co., 878. Coleman v. New York, &o. Rid., 1097. Coleman v. Second Avenue Rid. (41 Hun, 380), 1119. V. Second Ave. Rid. (38 N. Y. 201), 980. CoUamer v. Page, 773. CoUberg, Commonwealth v., 196. CoUett V. Keith, 1278. V. London, &c. Ry., 74, 150. CoUey V. Westbrook, 966. Collier v. Steinhart, 665, 666. Collins V. Benbury, 1253. V. Boston, &c. Rid., 1153, 1156. V. East Tennessee, &e. Rid., 1271. V. Hayte, 236. V. Lefevre, 571. V. Macon, 106. V. Philadelphia, 743, 746. V. St. Paul, &c. Rid., 665, 672. V. South Boston Eld., 578, 580, 1014, 1021. CoUis V. Selden, 73. Colman v. Godwin, 264. Colorado Cent. Rid. v. Holmes, 467, 469. Colrick V. Swinburne, 890. Colt V. McMechen, 1152. Colter V. Lower, 211, 212, 220. Colton V. Onderdonk, 831. Columbia, The, 473. Columbus V. Howard, 405. a. Jaques, 984. Columbus, &c. Ry. w. Arnold, 665. V. Farrell, 1101. V. Powell, 609, 1095, 1097. V. Troesch, 639. Columbus Gas-light, &c. Co. i/. Free- land, 411, 416. Comegys v. Vasse, 935. Comer v. Knowles, 218. Compton V. Richards, 923. u. Van Volkenburgh, 954. V. Waco Bridge, 952. Conant v. Raymond, 369. Condict V. .Jersey City, 743, 749. Condon v. Missouri Pac. Ry., 665. •Congdon t>. Central Vermont Rid., 1229. V. Norwich, 969. Congreve v. Morgan, 1014. Conhocton Stone Road v. BufEalo, &c. Rid., 502. Conklin v. White Water Valley Canal, 819. Conley V. Portland, 666, 666. Conner o. Citizens Street Ry., 609, 1121. V. New Albany, 951. V. Paul, 1269. Conners v. Hennessey, 606. Connolly v. Davidson, 686. Connor v. Sullivan, 869. Conrad v. Ithaca, 757. 655 COB INDEX TO THE CASES CITED. COX Conradt v. Clauve, 150, 849. Conroy v. Twenty-third Street Kid., 1118. Conspiracy Case, 353. Constable's Case, 934. Contra Costa, &e. Rid. v. Moes, 1056. Conway v. Hannibal, &c. Kid., 1021. 1;. Taylor, 954. Cook V. Anamosa, 743, 966. B.Bath, 428. V. Central Kid. &c. Co., 1036, 1037. V. Chicago, &c. Rid., 864. V. Cook, 273. V. Field, 275. V. Hannibal, &c. Eld., 1229. V. Hopper, 707. u. Hull, 890. V. Johnston, 836. W.Kane, 1181. V. Milwaukee (24 Wis. 270), 978. V. Milwaukee (27 Wis. 191), 978. V. Missouri Pac. Ry., 469. ». Kief, 267. Cooke V. Bangs, 745, 781, 782. V. Forbes, 426. V. Green, 989. V. Lalance Grosjean Manuf. Co., 652. V. Wildes, 308. Cool V. Croraraet, 1224. Coolbroth v. Maine Cent. Rid., 675. Coolidge V. Williams, 1254. Coombs, Commonwealth v., 953. V. New Bedford Cordage Co., 651. V. Purrington, 1015. Coomes v. Houghton, 616. Cooper 0. Butler, 680. V. Central Rid., 466, 644. ff. Detroit, 958. p. Greeley, 259, 280. B.Hall, 411. V. Johnson, 623. 0. Louanstein, 923. ». Mills, 743, 758. V. Milwaukee, &c. Ry., 654. , People I'., 545. V. Perry, 277. 0. Phillips, 708. B. Pittsburgh, &c. Ry., 665, 667. B. Schlesinger, 330. B. Shepherd, 399. V. Utterbach, 239. B. Willomatt, 404. y. Witham, 1268. Coote V. Gilbert, 265. Cope B. CordoTa, 1186. Copper B. Dolvin, 417. Coppins V. New York Cent. &c. Rid., 646. Coppner v. Pennsylvania Co., 854. Corbett v. Gilbert, 320. V. St. Louis, &c. Ry., 665. 656 Corbett o. Twenty-third Street Ry., 1125. Corbley v. Wilson, 288. Corcoran v. Harran, 199. B. Holbrook, 647, 663, 665. Cordell b. New York, &c Rid., 1026. Corey v. People, 945. Corlett V. Leavenworth, 1013. Corley b. Lancaster, 420. Corlies, Commonwealth v., 356. Corliss B. Worcester, &c. Rid., 1271. Cornell v. Barnes, 792. Cornwall v. Charlotte, &c. Rid., 680. Correll i.-. Burlington, &c. Rid., 112, 140, 446, 1229. Corsicana v. White, 614. Corson v. Maine Cent. Rid., 655. Cortelyou v. Van Brundt, 989, 1254. Cory B. Little, 943. B. Sileox, 31, 36. Cosgrove v. New York Cent. &c. Rid., 1147. Costa V. Whitehead, 918. Costello V. Knight, 249. V. Syracuse, &e. Rid., 586. Cote, Ex parte, 1202. Cotter V. Frankford, &c. Ry., 619. Cotterell u. Griffiths, 924. B. Jones, 227, 244. B. Starkey, 1016, 1016. Cottingham v. Weekes, 1271. Cotton V. Pocasset Manuf. Co., 894. Couch ». Steel, 132. Coughtry v. Globe Woollen Co., 446, 606. Coulter B. American, &c. Exp. Co., 445, 1108. Coupal B. Ward, 211. Courtenay b. Earle, 76. Courtney b. Collet, 805. Cousens b. Rose, 871. Covell B. laming, 499. Coventry b. Barton, 55. Covington Street Ry. b. Packer, 555, 556, 1271. Coward b. Baddeley, 187, 195. B. East Tennessee, &c. Rid., 1156, 1160. Cowden b. Wright, 555, 556. Cowell B. Thayer, 893. Cowen B. Sunderland, 858. Cowles B. Kidder, 890. Cowley V. Dobbins, 316. B. Pulsifer, 305. V. Smyth, 326, 330. ° Cowling V. Higglnson, 871. Cowper B. Andrews, 22. Cox H. Burbidge, 443, 1225. B. Highley, 816, 317. V. Lee, 282. V. London, &c. Ry., 1218. B. Louisville, &c. Eld., 951. CRO INDEX TO THE CASES CITED. CUR Cox V. SuUivan, 705. V. Taylor, 243, 244. Coxhead c. Ricliards, 303. Crabtree v. Baker, 901. Cracknell i-. Tlietiord, 117. Craft V. Boite, 280. Crafter v. Metropolitan Ry., 443. Orafton v. Hannibal, &c. Eld., 1229. Cragin v. Lovell, 1279. V. New York Cent. Eld., 1218. Craig V. Brown, 271. V. Chambers, 710. V. Manhattan By., 680. V. Ward, 330. Craker i-. Chicago, &c. Ry., 600, 1067, 1068. Cram v. Metropolitan Eld., 1124. Cramer i-. Burlington (42 Iowa, 315), 613. V. Burlington (45 Iowa, 627), 977. Cranch v. White, 624. Crandall v. Goodrich Trausp. Co., 451, 455, 834. V. Ijoomis, 695. Crane v. Uwyer, 938. V. London Dock Co., 932. Cranston v. New York Cent. &c. Eld., 1043. Cratty v. Bangor, 62. Crawford v. Cincinnati, &c. Rid., 1072, loae. V. Delaware, 997. o. Rarabo, 895. Crawfordsville v. Smith. 627. Crawshaw v. Sumner, 919. Cray v. Philadelphia. &c. Rid., 687, 1071. Crear v. Croasly, 869. Creed v. Hartmann, 521. Cregier v. Bunton, 309. Crescent v. Anderson, 1069, 1070. Crescent City Live Stock Co. u. Butch- ers Union, 225, 226. Cressey v. Northern Rid., 1229. Cressy v. Postville, 1018- Creswell w. Hoghton, 210. Crew V. St. Louis, &c. Ry., 652, 653. Crews V. Kansas City, &c. Eld., 1027. Crissey v. Hestonrille, &c. Ey., 1120. Crittal V. Horner, 269. Crittenton v. Alger, 890. Crocker v. Hadley, 283. V. Knickerbocker Ice Co., 1021. V. Mann, 398. V. New London, &e. Eld,, 1080. Crofts V. Waterhouse, 1063, 1129. Crogan v. Schiele, 994. Crommelin v. Coxe, 424. Crompton v. Lea, 68, 106, 839, 842. Cromwell v. Lowe, 429. Cronin v. Highland Street Ey., 1125. Cronk v. Cole, 327, 333. 42 Cropp V. Tilney, 282. Crosby v. Detroit, &c. Ey., 812. V. Leng, 187. Crosier v. Acer, 326. Cross V. Andrews, 509. V. Gardner (1 Show. 68), 319. V. Garnet (3 Mod. 261), 319. i>. Kent, 506, 507. V. Lewis, 924. Crossley v. Lightowler, 894. Crosswell, People v., 280. Crouch V. Charleston, &c. Ry., 470. Crow, State v., 194. Crowder c. Tinkler, 428. Crowell V. Gleason, 210. Crowley v. Burlington, &c. Ey., 1025, 1038. V. St. Louis, Iron Mount. &c. Ey., 469. Crowther v. Eamsbottom, 822. • Crozier v. Boston, &c. Steanib. Co., 1159. Crump V. Lambert, 412, 416, 428. Crush V. Crush, 349. Crutchfield i-. Eichmond, &c. Eld., 684. Crystal v. Des Moines, 969. Crystal Palace, The, v. Vanderpool, 1159. Cubitt V. Porter, 914, 917. Cuddington v. Wilkins, 289. Cullen i.'. Thomson, 625. Culver w. Avery, 319. Cumberland, &c. Eld. v. State, 665, 6B7. Cumming v. Brooklyn City Rid., 1038. Cunimings v. Center Harbor, 1009. V. Noyes, 72. Cumpston v. Lambert, 55. Canard Steamship Co. v. Carey, 459, 665. Cunningham ;;. Bay State, &c. Co., 37, 868. V. Brown, 342. V. Chicago, &c. Ey., 680. Curley v. Harris, 686. Curran v. Merchants Manuf. Co., 651. Currier v. Boston Music Hall Assoc, 849. V. Swan, 199. Curry ». Chicago, &c. Ey., 1229. V. Keyser, 325. V. Pringle, 209. Curtis V. Carson, 200. V. Curtis, 266. V. Drinkwater, 1129. V. Fairbanks, 842. V. Groat, 939. V. Hubbard, 816. W.Mills, 1236. V. Murphy, 1169,1171. V. Mussey, 129. Curtiss V. Ayrault, 903. 657 DAY INDEX TO THE CASES CITED. DEC Curtiss V Hoyt, 958. Cashing v. Adams, 875. Cushman i'. Kyan, 199. Cutler ». Bonney, 1174. 1). Smith, 50. Cutter V. Williams, 916. Cutting V. Seabury, 372. Cythe V. La Fontain, 938. I). K. Martin, The, 1061. Dada i>. Piper, 300. Dago, The, 646. Dahi V. Milwaukee City Ry., 586. Dailey v. Houston, 199. Daily v. Worcester, 973. Dain ». WycofE, .380. Dalay v. Savage, 995. Dale V. Brooklyn, &e. Eld., 1119. «. Hall, 173, 1152. V. Harris, 127. Dale Manuf. Co. v. Grant, 45. Daley v. Norwich, &c. Eld., 583. Dallas V. Gulf, &c. Ey., 683. D'Allex V. Jones, 708. Dame v. Baldwin, 9-32. Dana v. Valentine, 420. Danbury, &c. Kid. v. Norwalk, 743. Dand v. Eingscote, 869. DanenhoSer v. State, 596. Danforth v. Grant, 1200. Daniel v. North, 924. , Eeg. v., 365, .369. V. Western Union Tel., 1207. Daniels v. Clegg, 445, 1017. u. Hilgard, 92. V. Eeokuk Waterworks, 418, 426, 428. n. Lebanon, 1012. Danner v. South Carolina Eld., 1229. Daaser, Eex v., 792. Danville, &c. Eld. v. Commonwealth, 425. Dargan v. Waddill, 426. Dark v. Johnston, 863. Darling v. Boston, &c. Eld., 1229. ». Kelly, 819. Darlington ». New York, 753. Darmstaetter v. Moynahan, 605. Darrigas ». New York, &c. Rid , 665. Dartmouth College v. Woodward, 719, 720. Darwin v. Charlotte, &c. Eld., 1051. Daub w. Northern Pac. Ey., 665. DauEhtery c. American Union Tel., 1207. Daughtry v. Warren, 416. 418, 428 Davenport v. Lamson, 876. V. Bnckraan, 977. Davey v. London, &o. Ry., 442. Davidson v. Isham, 412, 426. V. Nichols, 413, 716. 658 Davie v. Wisher, 225, 236, 239. Davies «. Jenkins, 101, 7U7. V. Mann, 463, 464. V. Nicholas, 406. V. Sear, 872. V. Solomon, 254, 274. V. Stephens, 871. V. Williams (10 Q. B. 725), 380. V. Williams (16 Q. B. 546), 431. Davis t'. Bowland, 319. V. Brown, 261, 262, 268, 269. B. Bush, 211. V. Campbell, 943. B. Central Eld., 1229. 1'. Central Vermont Eld., 963. V. Chicago, &c. Ey. (46 Iowa, 389), 982. V. Chicago, &c. Ey. (-58 Wis. 646), 1037. O.Davis, 270. ». Detroit, &c. Eld., 653, 678. V. Gardiner, 274. V. Getchell, 890. V. Hannibal, &c. Ey., 812. V. Hardy, 240. V. Johnston, 277. V. Kansas City, &c. Eld., 109l! V. Lyon, 772. ». New York, 980. V. New York, &c. Rid. (143 Mass. 301), 1271, 1280. !). New York, &c. Eld. (47 N. Y. 400), 1043. V. Providence, &c. Kid., 1031. V. Saunders, 178, 498. V. Shepstone, 305. V. Taylor, 406, 521. a. West, 938. Dawkes v. Coveneigh, 1268. Dawkins i;. Antrobus, 305. V. Eokeby, 301. Dawling u. Venman, 299. Dawson b. Buford, 707. o. Chamney, 1174. V. Powell, 600. Day V. Bather, 1113. B. Brownrigg, 347. «. Day, 430. 431. B. Highland St. Ev., 62. V. Mt. Pleasant, 977. 1). Owen, 1061. B. Pittsburg, &c. Eld., 989. V. Eidley, 1185. V. Woodworth, 142. Dean v. Peel 380. B. Vaecaro, 1186. Deane v. Clayton, 1248. B. Eandolph, 743, 764. De Armond v. Armstrong, 309. Dearth v. Baker, 1225, 1234. De Camp v. Mississippi, &c. Eld, 614. Decker i;. Gammon, 1225. DET INDEX TO THE CASES CITED. DOD De Costa v. Massachusetts, &c. Co. 429. ' Deeoux o. Lieux, 236. Deeds v. Chicago, &c. Rj'., 652. Deerfleld v. Connecticut Eiver Eld.. 869. DeForest v. Jewett, 675. Degg V. Midland Ky., (386. De Graff ». New York Cent. &c. Rid., 676. De Graffenreid v. Mitchell, 816. Deihl V. Ottenville, 614. Delacroix v. Tlievcnot, 286. Delahoussaye v. Judice, 898. Delamatyro. Milwaukee, &e. Ey., 1086. Delaney v. Hilton, 648. V. Milwaukee, &c. Ry., 1046, 1048. r. Eocliereau, 695. V. Wallis, 101. Delaware, &c. Canal v. Torrey, 36. Delaware, &c. Eld. v. Salmon, 836. , State i.-., 1061, 1096. Delegall v. Highley, 284. Delger v. St. Paul, 74.3, 758. Dellii V. Youmans, 879. Dejory v. Canny, 962. De'Lucas v. New Orleans, &c. Rid., 1072. De Marentille v. Oliver, 192. Demarest v. Hardham, 36, 416, 426. V. Haring, 262, 808. V. Little, 1271. De May v. Roberts, 315, 321, 332. De Medina v. Grore, 243. Demint v. Thompson, 796. De Moss 17. Haycock, 277. Denison v. Lincoln, 1240. Dennehey v. Woodsum, 242. Dennis c. Clark, 558. V. Eckhardt, 412, 426. V. Ryan (63 Barb. 145), 241. B. Eyan (65 N. Y. 385), 228. Denniston v. Clark, 990. Denny v. New York Cent. &c. Eld., 1082. Dent i: Ross, 802. Denton v. Great Northern Ry., 329. Denver ». Rhodes, 819. Denver, &c. Eld. v. Pickard, 1099. Denver, &c. Ey. v. Chandler, 1229. V. Harris, 723, 946. De Pew V. Eobinson, 264, 271. Derrickson v. Springer, 869. Derry v. Flitner, 451. De Eutte i: New York. &c. Tel., 1206. Derwort v. Loonier, 1064. Deskins v. Gose, 593, 595. Des Moines v. Hall, 989. Detroit i: Eeckman, 743, 746. Detroit, &c. Ey. v. Hayt, 1229. Detroit Daily Post c. McArthur, 104, 723. Devaughn v. Heath, 814. Devine v. St. Paul, &c. Rid., 811. Devlin t>. Gallagher, 140. V. Smith, 150. De Voin v. Michigan Lumber Co., 599. Devore v. Ellis, 874. Dewey v. Chicago, &c. Rid., 812. V. Detroit, 743, 768, 966. V. Leonard, 104, 834. Dewire v. Bailey, 468, 1013. Dexter v. Cole, 819. V. McCrcady, 442. V. Syracuse, &c. Rid., 1156. Deyo V. New York Cent. Eld., 1064. Diamond v. Northern Pac. Eld., 1027. Dibble v. Brown, 1156. Dick V. Indianapolis. &c. Eld., 665. Dickens v. New York Cent. Eld , 1100. Dickey v. Andros, 263. V. McDonnell, 814. V. Maine Telegraph, 969. Dickie ». Boston, &c. Eld., 952. Dickinson v. Barber, 506. V. Grand Junction Canal, 885, 887, 890. V. Port Huron, &c. Ey., 1106. V. Whiting, 869, 874. V. Worcester, 898. Dickson v. Dickson, 365, 371. V. Great Northern Ky., 1157. V. McCoy, 1225. V. Eeuter's Tel., 1211. Dietrich ■/. Baltimore, &c. Ey., 584, 1119. 1'. Northampton, 1271. V. Pennsylvania Eld., 1072, 1077, 1082. Dietus V. Fuss, 406. Dietz V. Langfitt, 225. Digbv V. Thompson, 283. Dike, State v., 773. Dillenbach v. Xenia, 983. Dillingham v. Snow, 787, 788. Dillon V. Union Pac. Kid., 675. Dimmey v. Wheeling, &c. Eld., 1122, 1271. Dimmock v. North Staflbrdshire Ey., 1027. Dimock v. Suffield, 529. Dingley v. Batfum, 50. Disbrow v. Tenbroeck, 76, 405. District of Columbia v. McElligott, 677. Ditchett V. Spuyten Duyvil, &c. Rid., 513. Dittman v. Repp, 426. Dixon V. Bell, 151. V. Brooklyn City, &c. Eld., 1119. 0. Holden, 254. V. Stewart, 277. Doane v. Badger, 873. Dodd V. Arnold, 933. ». Holme, 910. 659 DOU INDEX TO THE CASES CITED. DTJW Dodge V. Burlington, &c. Rid., 445, 1026, 1043. V. Colby (37 Hun, 515), 348. V. Colby (108 N. Y. 445), 347, 1279. V. Favor, 374. Dodson V, Mock, 943. Dodwell V. Burford, 192. Doerbaum v. Fischer, 901. Doggett V. Illinois Cent. Rid., 1106. V. Richmond, &c. Rid., 43, 442, 455, 462. Dole V. Erskine, 200. V. Olmstead, 938. Dolevln v. Wilder, 288. DoUoway v. Turrill, 309. Dolph V. Ferris, 929, 943, 1220. Domestic Sewing Machine Co. v. Wal- ters, 1181. Donaghue v. GafEy (53 Conn. 43), 283, 288 V. GafEy (54 Conn. 257), 285, 308. Douahoe v. Richards, 594. V. Wabash, &c. Ry. (83 Mo. 543), 1037. l: Wabash, &c. Ry. (83 Me. 560), 125, 445, 1037. Donaldson v. Boston, 966. V. Hazen, 783. V. Milwaukee, &c. Ry., 459. Donegan n. Davis, 559. Donelson v. Young, 337. Donne's Case, 266. Donnell v. Sandford, 556. Donoho li. Vulcan Iron Works, 1006, 1010. Donohue v. New York, 743, 750. V. St. Louis, &c. Ry., 1043, 1049. Donovan v. Hannibal, &c. Rid., 1229. V. New Orleans, 172. 0. Texas, &c. By., 43. Dooley v. Kansas, 116. V. Meriden, 978. Dooling V. Budget Pub. Co., 284, 347, 350. -Doran i». East River Ferry, 1140. Dore V. Milwaukee, 743, 997. Dorendinger v. Tscheohtelin, 241. Dorman v. Missouri Pac. Ry., 1229. Dorn V. Backer, 788. Dorrity ». Rapp, 910. Doss V. Missouri, &c. Rid., 1109. Dottarer v. Bushey, 266. Dotton V. Albion (50 Mich. 129), 743, 962. V. Albion (57 Mich. 575), 965. Dougherty v. Stepp, 819. Doughty V. Penobscot Log Driv. Co., 665, 666. Douglas V. Texas Mex. Ry., 665, 667. Douglass V. Craig, 275. V. Dickson, 819. Doullut V. McManus, 254. 660 Doulson V. Matthews, 127S, 1279. Dovaston v. Payne, 1224. Dow V. Kansas Pac Hy., 671. Dowell V. Burlington, &c. Ry., 675. Dowlen v. State, 596. Dowling V. Allen (74 Mo. 13), 651. V. AUen (88 Mo. 293), 587. Downer v. Lent, 786. Downey v. Chesapeake, &c. By., 680. V. Hendrie, 619, 1119. Downing v. Chicago, &c. Bid., 1229. Downs V. New York, &c. Rid., 1084. Doyle V. Boston, &c. Rid., 1271. ». Kiser, 1156. V. Russell, 210. V. Vinalhaven, 977. Drake v. Grant, 319. V, Latham, 325. V. Mitchell, 519. V. Mount, 459, Draper, People »., 777, 778. Drees v. State, 805. Dressell v. Kingston, 743. Drew V. Central Pac. Rid., 1082. V. Sixth Avenue Bid. (1 Abb. Ap. 556), 1124. V. Sixth Avenue Rid. (26 N.Y. 49), 374, 558. V. Spaulding, 929. 0. Sutton, 968, 972. Driggs V. Burton, 240. DriscoU V. Newark, &c. Co., 831. Dritt V, Snodgrass, 595. Drohn v. Brewer, 142. Drucker v. Manhattan Ry., 981, 989. Dryden i'. Grand Trunk Ry., 1084. Dublin, &c. By. v. Slattery, 442. Dubois V. Budlong, 426. V. Kingston, 975. Dudley v. Bolles, 1016. V. Briggs, 33, 339. V. Camden, &c. Ferry, 1140. V. Kennedy, 424. V. Smith, 1129. DufEi). Budd, 1186, 1187. Duffany v. Ferguson, 330. DuflEees «. Judd, 807. Duffy V. Chicago, &c. By., 1043. V. Dubuque, 743, 970. V. Missouri Pac. Ry., 1049. V. Thompson, 1156. w. Upton, 644. Dufour V. Central Pac. Rid., 469. Dufresne v. Hutchinson, 519. Dugan 0. Nichols, 398. Duggins V. Watson, 610. Dukes V. Clark, 267. Dulaney v. Rogers, 316, 330. Du Laurans v. St. Paul, &c. Rid., 1080. Duling V. Philadelphia, &c. Rid., 1081. Dumont v. Smith, 392. Dun V. Seaboard, &c. Bid., 1107. EAS INDEX TO THE CASES CITED. ELL Duncan i>. Louch, 869, 875. V. St. Louis, &c'. Ry., 812. Dunham v. Powers, 297, 301. Dunlap V. Glidden, 342. V. International, &c. Co., 1156. V. Northern Pac. Rid., 1081. V. Thome, 1181. Dunlop V. Munroe, 1197, 1199. Dunmead v. American Min. &c. Co., 680. Dunn V. Cass Ave. &c. Ey., 455. o. Grand Trunk Ry., 1092. V. White, 316, 330. Dunson v. New York Cent. Eld., 173. Dnpont ti. Payton, 327. Dupuy V. Johnson, 535. Durant v. Palmer, 535, 977. Durden v. Barnett, 555. Durfee v. Jones, 936. Durkee v. Central Pac. Eld., 557. V. Kenosha, 743, 763, 764. Durkin v. Sharp, 1271. Duryea v. New York, 743, 753. Dusky V. Eudder, 929. Dusy u. Helm, 211. Dutzi V. Geisel, 665, 1108. Duvall V. Waters, 68. Dwain v. Descalso, 241. Dwyer v. American Exp., 660, 665. V. Firemen's Journal, 281. V. New York. &c. Ry., 1140. Dyer v. St. Paul, 905, 998. V. Sanford, 864. V. Tuskaloosa Bridge, 952. Dygert v. Schenck, 952. Dyson i;. CoUick, 819. Eads v. Brazelton, 934. Eager v. Grim wood, 382. Eagle, The, 1277. Eames v. Morgan, 315. V. Texas, &c. Ry., 1104. Earl V. De Hart, 889. Earle v. Wallingford, 692. Eason v. Sabine, &c. Ey., 665, 686. V. Westbrook, 354. East Hartford v. Hartford Bridge, 954. East Kingston v. Towle, 1240. East Line, &c. Ey. v. Smith, 1271. East Eiver Gas-light Co. v. Donnelly, 743, 747. East Saginaw Citv Ey. v. Bohn, 1118, 1124. East Tennessee, See. Eld. v. Bayliss, 1229. V. Carloss, 1229. V, Collins, 665. V. Deaver, 1025. V. Duffield, 677, 678. V. Feathers, 132, 1229. V. Gurley, 665, 683. East Tennessee, &c. Eld. v. Hartley, 1271. V. Humphreys, 1038. 0. King, 448. V. Lockhart, 1100. r. Massengill, 1100. V. Pratt, 1026. V. Eush, 680. V. Selcer, 1023. V. Swaney, 1038. V. White, 1024. I). Winters, 513, 1025. Eastern Counties Ey. o. Broom, 725. Eastin v. Stockton Bank, 240. Easton v. Calendar, 786. V. Woods, 401. Eaton V. Allen, 263. V. Boston, &c. Eld., 898. V. Delaware, &c. Rid., 1072, 1081. V. Erie Uy., 1148. Eberhart v. Reister, 470. Eberly v. Rupp, 244. Ebor, The, 140. Eckerd v. Chicago, &c. Ry., 1101. Eckert v. Long Island Rid., 125, 445. Eckstein v. Frank, 565. Edds V. Waters, 308. Eddy, United States v., 1196, 1202. Eden v. Lexington, &c. Rid., 1269. Edgar v. Stevenson, 896. Edgerly v. Concord, 976. Edmondson v. Machell, 379. Edmundson v. Pittsburgh, &c. Rid., 602. Edson V. Central Rid., 1229. Edwards's Case, 102. Edwards v. Bridges, 794. V. Crume, 549. V. Dickenson, 1198. V. Ferguson, 786. V. Howell, 274. V. Jones, 599. V. London, &e. Ry., 612. V. Lord, 1064. V. Midland Ry., 731. V. New York, &c. Eld., 849, 859. Egbert v. Greenwalt, 71. Eggleston v. Mundy, 398. Ekins V. Treshara, 319. Ekman v. Minneapolis Street Ey , 1118. Elcox V. Hill, 1175. Elder v. Frevert, 522. Elias V. Sutherland, 993. Elkins V. Boston, &c. Eld., 586, 1047. Ellery v. Cunningham, 936. Ellet V. St. Louis, &o. Ey., 170. Ellington v. Ellington, 378, 379. Elliot V. Ailsberry, 286. w. Clayton, 708. EUiotson V. Feetham, 420. Elliott V. Brown, 200. V. Fair Haven, &o. Eld., 980. 661 EST INDEX TO THE CASES CITED. PAN Elliott V. Hayden, 521. V. Herz, 1240. B. NickUn, 379. V. RosseU, 1152. I). Van Buren, 142. V. Western, &c. Rid , 1079. Ellis V. American Tel., 1205. V. Andrews, 325. V. Duncan, 879. I). Loftus Iron Co., 801, 819, 820. V. Missouri Pac. Ry., 1229. V. New York, &c. Kid., 644. V. Sheffield Gas Con. Co., 604. V. Turner, 612. Ells V. Pacific Rid., 1229. Elmer v. Locke, 665. Elmore v. Sands. 1077, 1080, 1083. Elsee V. Smith, 220. Elvira Harheck, The, 1158. Elwell V. Martin, 665. Elwood V. Western Union Tel., 1212. Ely V. Ehle, 398. V. Niagara, 431. 17. Thompson, 781. Emans v. Turnbull, 873. Embrey v. Owen, 31, 890, 891, 922. Emerson v. Babcock, 991. V. Cochran, 225. V. Peteler, 854. Emery v. Gowen, 380. V. Hapgood, 209. Emmens v. Pottle, 257, 532. Emmerson v. Marvel, 264.' Emmons v. Minneapolis, &c. Ry., 811. Emory v. Hazard Powder Co., 417, 428. Emporia v. Schmidling, 1013. Engleken v. Hilger, 515. English V. Delaware, &c. Canal, 1097. Eno K. Del Vecchio, 916, 917, 919. Ensign u. Sharp, 916. Eppendorf v. Brooklyn, &c. Rid., 442, 1121. Erber v. Dun, 305. Erbes v. Wehmeyer, 807. Erd V. St. Paul, 442. Erie v. Caulkins, 743. V. Magill, 1013. Erie, &c. Rid., Commonwealth v., 425. Erie City v. Schwingle, 743, 758. Erie City Iron Works i-. Barber (6 Out. Pa. 166). 483. V. Barber (10 Out. Pa. 125), 316, 329. Erie City Passenger Ry. v. Schuster, 583. Erie Ry. v. Lockwood, 1160. Ernst V. Hudson River Rid., 1044. EsUng V. Williams, 864. Esson V. Tarbell, 398. Estelle V. Lake Crystal, 970, 986. Estes V. Estes, 264. Estey V. Smith, 22. 662 Estopinal ». Feyroux, 783. Esty V. Baker, 819. V. Wilmot, 210, 391. Etheridge v. Philadelphia, 975. Eudora v. MiUer, 743, 758. Eulrich v. Richter (37 Wis. 226), 889. V. Richter (41 Wis. 318), 889. Eureka Co. v. Bass, 442. Evans v. Collins, 330. V. Edmonds, 330. ». EUiott, 398. V. Foster, 781. V. Harlow, 347, 350. B. Jayne, 919. B. St. Louis, &c. Ey., 1083. B. Smith, 634. B. Utiea, 1012, 1013. B. Walton, 37J, 374, 375. B. Watrous, 705. Evans. &c. Fire Brick Co. v. St. Louis, &c. Ry., 38. Evansich b. Gulf, &c. Ry., 673, 586. Evansville v. Decker, 743, 746, 759. B. Wilter, 743, 966. Evansville, &c. Rid. b. Griffin, 846, 853. V. McEee, 731. V. Wolf, 577, 579, 590, 1271. B. Young, 1076. Evening Journal Assoc, v. McDermott, 728. Everett v. Chicago, &c. Ry., 1080, 1097. I-. Council Bluffi, fl90. B. Hydraulic, &c. Co., 8.S9. Everhart v. Terre Haute, &c. Rid., 60, 1051. Everson v. Syracuse, 74-3, 764. Ewan B. Lippincott, 665. Ewart B. Kerr, 397. Ewen V. Chicago, &c. Ry., 1271. Ewing V. Chicago, &c. Rid., 1229. Exchange Fire Ins. Co. v. Delaware, &c. Canal, 956. Express Printing Co. b. Copeland, 305. Eyier v. Allegany, 743. Eyre, Commonwealth v., 194. Eyres v. Sedgewicke, 299. Faber b. St. Paul, &c. Ry., 1043. Fagnan v. Knox, 239. Fahn v. Reichart, 111, 833. Fairbank v. Haentzsche, 677. Fairbanks b. Kerr, 42, 618. Fairfax ». New York Cent. Rid., 1161. Falker v. New York, &c. Ry., 982. Falkner b. Ohio, &c. Ry.. 1080. Fallenstein b. Boothe, 277. Fallon V. Central Park, &c. Bid., 854, 1014. False Affidavits, 245. Fanjoy v. Scales, 177, 868. Fanning v. Gregoire, 954. FIE INDEX TO THE CASES CITED. FLA Faribault v. Wilson, 1240. Farish v. Reigle, 443, 1129. Farley m. Chicago, &c. Ky., 680. V. Banok, 306. Farlow v. Kelly, 1105, 1107. Farmer v. Central Iowa Ry., 680. V. Darling, 145, 225. V. Wilmington, &c. Eld., 1229. Farmers & Mecli. Bank v. Champlain Transp. Co., 1186. Farnam v. Feeley, 230, 241. Farnell v. Bowman, 749. Farnliam v. Camden, &c. Rid., 1075. Farnsworth v. Storrs, 305. Farnworth v. Packwood, 1176. Farrand v. Marshall, 905. Farrant v. Barnes, 413. Farrar v. Bridges, 326. V. ChaufEetete, 406. Farrington v. Bullard, 326. Farris v. Cass Ave. &c. Ry., 576, 1014. V. Dudley, 890, 898. Faucett v. Nichols, 1179. Faucher f. Grass, 426. Faulkner v. Aurora, 1021. Faweet v. Beavres, 372. Fawcett v. Fowlis, 781. V. Pittsburg, &c. By., 455. Fay, Petitioner, 954. V. Kent, 1004. II. Minneapolis, &c. By., 652. V. Prentice, 417. V. Wliitm.m, 412, 426. Federal" Street, &c. Ry. v. GibEon, 1119. Feital i>. Middlesex Bid., 1118. Fell V. Brown, 704. V. Burlington, &c. Rid , 1025. «. Knight, 1168. Felt V. Amidon, 57. Feltham v. England, 666. Fen V. Dixe, 350. V. Driver, 243. Fenwick v. Grimes, 326. Fenwicke v. Gibbs, 771. Ferguson v. Central Iowa Ry., 680. B. Hubbell, 606. V. Miller, 1250. V. Tucker, 369. V. Wisconsin Cent. Rid., 1043. Fero V. Buffalo, &c. Rid., 438. Ferrell v. Boykin, 372. Ferren v. Old Colony Rid., 442. Ferrenbach v. Turner, 743. Ferrier v. Wood, 75. Ferris o. Wellborn, 889. Ferriter r. Tyler, 594. Fertilizing Co. v. Hyde Park, 92, 426. Fettretch v. Leamy, 914. Ficken v Jones, 1222. Field a. Chicago, &c. By., 38. V. Leiter, 918. Field V. West Orange, 428, 743, 997. Fields V. Hartford, &c. Bid., 1020. Filber ii. Dautermann, 259, 2152. FUer V. New York Cent. Bid. (49 N. Y. 47), 445, 1101. V. New York Cent. Rid. (59 N. Y. 361), 1101. Filipowski v. Merry weather, 1173,1175. FilUter v. Phippard, 833. Fillmore v. Horton, 406. Finch V. Central Rid., 1229. B. Finch, 257, 276. w. Toledo, 743, 766. Fines v. Spencer, 1245. Fink V. Albany, &c. Rid., 1078. V. Missouri Furnace (82 Mo. 276), 602. V. Missouri Furnace (10 Mo. Ap. 61), 580. Finklestein v. New York Cent. &c. Rid., 609, 1047. Finlayson v. Chicago, &c. Rid., 1037. Finley v. Hershey, 431. First Baptist Church o. Schenectady, &c. Rid., 426. First Nat. Bank v. Davies, 666, 690. V. Marietta, &c. Rid., 1156, 1159. V. Western Union Tel., 1207. Fischer i: Langbein (13 Abb. N. Cas. 10), 211. V. Langbein (103 N. Y. 84), 707. Fish V. Chapman, 1057. V. Dodge, 412. V. Ferris, 76, 405. Fisher v. Boston, 743, 761, 762. II. Bristow, 226, 247. V. Clark, 1227. V. Clisbee, 954. V. Kelsey, 1168, 1176, 1179. y. New York Com. PI., 326. V. Prince, 402, 486. (.. Thirkell, 858. Fisk u. Soniat, 302, 305. V. Wait, 8.30. Fitch V. Casler, 1171. V. De Young, 283. V. Newberry, 1181. Fitts V. Hall, 565. Fitzgerald v. Berlin, 977. V. BurrUl, 1197. !). Cavin, 195. V. Northcote, 596. „. Redfield, 271. u. Robinson, 271, 802, 305. 1'. St. Paul, &c. Ry., 581. V. Weston, 513. Fivaz V. Nicholls, 64. Flagg V. Flagg, 869. !'. Hudson, 1017. Flanders v. Norwood, 970. Flannery o. Baltimore, &c. Eld., 1068, 1090. 663 FOE INDEX TO THE CASES CITED. PRE Flansburg v. Basin, 1234. Flattes V. Chicago, &k. Rid., 1229. Fleck V. Union Ky., 1122. Fleeming ;;. Orr, 1235. Fleet V. HoIIenkemp, 716. Fleming v. McDonald, 521. V. St. Paul, &c. Rid., 1229. Flemington v. Smithers, 556. Flennnlug v. Western Pac. Rid., 459, 1041. Fletcher v. Atlantic, &c. Rid., 442, 1043. V. Bealey, 894. V. Boston, &c. Rid., 438. 1). Rylands, 839. Flight V. Thomas, 420. Flike V. Boston, &c. Rid., 673. Flint u. Clark, 306. Flint, &c. Ry. o. Lull, 1229. r. Weir, 1153. Floyd V. Barker, 296, 782. V. State (7 Eng. 43), 206, 209. 0. State (36 Ga. 91), 199. V. Sugden, 671. Flynn v. Canton Co. of Baltimore, 132, 137. V. Kansas City, &e. Rid., 677, 683. V. Salem, 665, 666. (/. San Francisco, &o. Rid., 104, 459. V. Wabash, &c. Rid.. 1024. Fogg o. Nahant, 1012. Foley V. Chicago, &c. Ry. (G4 Iowa, 644), 665, 690. V. Chicago, &o. Ry. (48 Mich. 622), 677. B. Wyeth, 906, 910. FoUman v. Mankato, 1070. Folsom V. Manchester, 406. Fond du Lac Education Board, State v., 593. Fones v. Phillips, 651, 665, 667. Fonville «. McNease, 286. Fooks V. Waples, 325. Foot V. Brown, 272 Forbes v. Atlantic, &c. Rid., 1024. Ford V. Lyons, 648. 0. Monroe, 556. V. Surget, 161. V. Taggart, 943, 945. B. Whitlock, 890. Foreman v. Neilson, 399. Fores v. Wilson, 379, 383. Forks V. King, 1012. Formwalt ». Hylton, 213. Forney v. Geldmacber, 146. Forsdick v. Collins, 855. Forsee o, Alabama Great So. Bid., 1080. Forsyth v. Boston, &c. Rid , 1101. V. Hooper, 599. Fort B. Union Pac. Rid., 609, 611. 664 Fort Wayne b. Coombs, 743, 759. Fort Wayne, &c. Rid. ». Gildersleeve, C75, 678. Fort Wayne, &c. By. ». Beyerle, 554, 1271. Fort Worth ». Crawford, 743, 750, 754. Fortin w. Easthampton, 1020. Fortman v. Rottier, 490. Forward b. Adams, 270. V. Pittard, 166, 1152. Fosblnder v. Svitak, 943. Fosliay b. Glen Haven, 529. Foss V. Chicago, &c. By., 620. B. Hildreth, 288. Foster v. Boston, 502. V. Dow, 488. B. Essex Bank, 609, 612. V. Evans, 519. B. Goddard, 1015. w. Minnesota Cent. By., 665, 669. B. St. Louis, &c. By., 1229. B. Scripps, 129. B. Stewart, 72, 369. Fouldes B. Willoughby, 403. Foulger b Newcomb, 270. Fow B. Boberts, 524, 858. Fowle B. Alexandria (3 Cranch C. C. 70), 724. B Alexandria (3 Pet. 398), 758. Fowler B. Baltimore, &c. Rid., 459,468. B. Chicago, &c. Ry., 665, 671. V. Chichester, 534. V. Dowdney, 266. Fowles B. Bowen, 306. Fox B. Missouri Pac. Ry., 1044. B. Pierce, 875. B. Sackett, 1013, , United States »., 1279. 8. Young, 1228. Foy B. Cooper, 706. Fraker b. St. Paul, &c. By., 665, 67.5. Fraloff B. New York Cent. &o. Bid., 1156. Francis v. Cockrell, 849. B. Boose, 266. B. Wood, 299. Frank v. Dunning, 102. Frankfort Bridge b. Williams, 952. Frankle b. Jackson, 992. Franklin b. Low, 1200. B. Northwestern Teleph., 1213. Frantz v. Lenhart, 523. Fray b. Blackburn, 781. B. Fray, 309. Frazer v. Kimler, 1018. B. Lewiston, 743. V. South and North Alabama Rid., 1037. Frazier v. Brown, 879, 883, 885. B. Nortinus, 801. Freburg v. Davenport, 743, 1000. Freeh v. Philadelphia, &c. Bid., 1037. GAL INDEX TO THE CASES CITED. GAT Frederick v. Marquette, &c. Eld., 1078, 1080. Freeman v. Blewitt, 394. V. Boland, 405, 567. «. Engelmann Trausp. Co., 1271, 1273. V. McDaniel, 318. V. McLennan, 939. V. Scurlock, 522. V. Venner, 33, 339. Freer v. Cameron, 150, 621. French v. Buffalo, &c. Rid., 736. V. Cresswell, 801. V. Taunton Branch Eld., 1044. Frenzel v. Miller, 337. Freudenstein v. McNier, 796. Frick V St. Louis, &c. Ey. (75 Mo. 542), 579. B. St. Louis, &c. Ry. (75 Mo. 595) 586. Friday p. Floyd, 112. Frink v. Potter, 1064. Fripp V. Hassell, 1247, 1248. Frith V. Dubuque, 983. Fritz I'. First Division, &c. Rid., 1229. V. Milwaukee, &c. Rid., 811. Fritzsche v. The Denmark, 1160. Frost V. Froatburg Coal Co., 720. V. Mott, 794. V. Plumb, 64, 1228. Fry V. Bennett (3 Bosw. 200), 294. V. Bennett (4 Duer, 247), .306. Frye v. Chicago, &c. Rid., 1227. Fryer v. Warne, 889. Fuhr V. Dean, 864. Fullam V. Stearns, 36, 817. Fulleam v. Muscatine (57 Iowa, 457), 819. Fuller V. Atlanta, 758. V. Chamberlain, 522. V. Citizens Nat. Bank, 602. V. Coats, 1179. V. Robinson, 33, 333. V. Tabor, 40-3. Fullerton v. Mack, 817. Fulliam v. Muscatine (70 Iowa, 436), 1012,1013. Fulton V. Onesti, 240. V. Rickel, 743, 758, 976. Fulton Iron, &c. Works v. Kimball, 1007. Funston v. Chicago, &n. Ey., 1049. Furman v. Van Sise, 379, 381. Furnell ». St'. Paul, 977. Furnessla, The, 665. Furnis v. Leicester, 319. Gaines v. Union Transp. &c. Co., 1160. Galbraith v. Littiech, 958. Gale V. Delaware, &c. Rid., 1083 V. Lisbon, 1017. Galena, &c. Rid. v. Jacobs, 1042. V. Eae, 609, 611. Gallagher v. Bowie, 1129. V. Dodge, 102, 993. V. St. Paul, 958. 1'. State, 199. Gallaher v. Crescent City Rid., 590. Gallaway v. Burr, 239. Galligan ». Metacomet Manuf . Co., 854. Galloway v. Bird, 398. V. Western, &c. Rid., 641. Gallup V. Josseiyn, 939. Gallwey v. Marshall, 270. Gait V. Adams Express, 1160. Galveston i'. Posnainsky, 1018. Galveston, &c. Ry. v. Donahoe, 616. V. Drew, 677. V. Faber, 665. V. Lempe, 678. V. Moore, 583 Galveston City Rid. v. Hewitt, 1014, 1015. Gammell v. Schley, 1181. Gandy v. Jubber, 422. Ganea v. Southern Pac. Rid., 242. Gannon i-. Hargadon, 898. V. Housatonic Rid., 686. Garden City, The, 140. Gardner v. Campbell, 394. I'. Chicago, &c. Ry., 12T1. V. Heartt, 475. V. Michigan Cent. Rid., 680. V. New Haven, &c. Co., 1094. V. Newburgh, 890. I). Slade, 127. Garfield Manuf. Co. v. McLean, 471. Garing v. Fraser, 248. Garitee v. Baltimore, 71. Garland v. Towne, 996. Garr v. Selden, 300. Garrahy v. Kansas City, &c. Rid., 665. Garraty v. Duffy, 819. Garret v. Shelson, 271. V. Taylor, 365. Garrett u. Dickerson, 277. ■ V. Freeman, 833. Garrigan v. Berry, 1016, 1017. Garrison v. Rudd, 867, 868. Garside v. Trent, &o. Nav., 1186. Garth v. Howard, 522. Gartland v. Toledo, &c. Ry., 673. Garton v. Bristol, &c. Ry., 1057. Garvin v. Luttrell, 406. Garwood v. New York Cent. &c. Eld., 892. Gaskins v. Atlanta, 743, 974 Gas-light, &c. Co. v. St. Mary Abbott's, 103, 104, 115, 819. Gassett v. Gilbert, 803. Gastenhofer v. Clair, 1169. Gates V. Fleischer, 518, 715. V. Lounsbury, 394. 665 GIB INDEX TO THE CASES CITED. GIL Gates V. Meredith, 257, 506. f. Benfro, 545. V. Southern Minnesota Ry., 170, 650. Gaudy v. Smith, 264. Gaunt u. Fynney, 418. Gavett V. Manchester, &c. Eld., 1100. Gay I'. Boston, &c. Eld., 869. Gayetty v. Bethune, 869. Gaylord v. King, 989, 991. Gaynor v. Old Colony, &c. By., 443, 470, 1037, 1086. Geary v. Bennett, 270. Geddes v. Metropolitan Eld., 1129. Geddis v. Bann Eeservoir, 115. Geiger v. Filor, 426. Geiselman v. Scott, 714. Geismer v. Lake Shore, &c. Ey., 174. Gelley v. Clerk, 1172. Gelzenleuchter v. Kiemeyer, 209. General Om. Co. v. Limpus, 614. Genesee SaT. Bk. v. Michigan Barge Co., 329. Genner v. Sparks, 191. George v. Chambers, 398. V. Cox, 870. V. Fisk, 104, 445. V. Skivington, 413, 698. Georgetown, &c. Ry. w. Eagles, 813. Georgia Chem. &c. Co. v. Colquitt, 428. Georgia Rid. v. Carr, 445. V. Irey, 665, 690. V. Pittman, 1271. V. Williams, 10.38. Georgia Eld. &c. Co. v. Garr, 1271. V. Goldwire, 665, 690. V. McCurdy, 1101. V. Neely, 1229. V. Rhodes, 665. Georgia So. Rid. v. Bigelow, 1088. Gerard v. Dickenson (4 Co. 18 a), 845. Geraty v. Stern, 609. Gerber v. Grabel, 924. Germantown Pass. Ey. v. Brophy 1119. V. Walling, 1106, 1119. Gerrard o. Cooke, 873. V Dickenson (1 Cro. Eliz. 196), 350. Gerring v. Barfield, 991. Gerrish v. Brown, 984. V. Union Wharf, 842, 898. Gerstle v. Union Pac. Ey., 1106. Geveke v. Grand Rapids, &c. Eld., 1046. Gibbes v. Beaufort, 743, 765. Gibbon v. Budd, 708. V. Paynton, 1188. Gibbons v. Chicago, &o. Ey., 680. V. Hoag, 706. V. Pepper, 195. 666 Gibbons v. Williams, 580. V. Wisconsin Valley Eld., 833. Gibbs V. Ames, 228. V. Chase, 401. V. Coykendall, 502. V. Estey, 813. V. Hannibal, 1271. V. McFadden, 68. V. Randlett, 210. V. Williams, 889. Gibson v. Culver, 1186. v. East Tennessee, &c. Eld., 1095. i: Erie Ey., 675, 678. V. Holden, 916. V. Humphrey, 402. V. Pacific Rid., 644. V. Preston, 768. V. Southeastern By., 1027. Gidley v. Palmerston, 787. Gidney ». Earl, 989, 990. Gifford V. McArthur, 71, 1002. Gilbert v. Boston, 1013. B. Guild, 675. V. Hoffman, 414. V. Mickle, 421. V. Morris Canal, &c. Co., 426. V. People, 300. V. Trmity House, 768. V. Woodruff, 918. Gilchrist v. Gilchrist, 802. Giles V. Fauutleroy, 1176. i>. Taff Vale By., 727. GiUeather v. Council Bluffs, 1000. Gill V. Atlantic, &c. Ry., 802. V. Manchester, &c. By., 1217. V. Middleton, 76. I). Rochester, &c. Rid., 513, 1095. GiUespie v. McGowan, 60, 846, 854. V. Newburgh, 973. Gillet V. Mason, 1250. Gillett V. Johnson, 889. V. Missouri Valley Rid., 731. Gillham v. Madison Rid., 898. Gilliam v. South, &c. Alabama Rid., 613. Gillis V. Pennsylvania Eld., 1109. Gillon V. Wilson, 523. GilluK B. Madison, 743, 750, 751. Gilman v. Eastern Eld., 669. V. Emery, 943. V. European, &c. Ey., 1229. V. Noyes, 42, 1222. V. Philadelphia, 953.. «. Sheboygan, 1 19. Gilman, &c. Eld. v. Spencer, 1229. Gilmore v. Driscoll, 100, 905, 906, 912. V. Northern Pac. By., 665, 667. V. Wale, 823. Gilreath ». Allen, 306. Gilson V. Collins, 629. V. Jackson County Horse By , 1063, 1064. GOO INDEX TO THE CASES CITED. GBA Ginna v. Second Avenue Rid., 1106, 1119. Girling's Case, 394. Gisbourn ». Hurst, 1057. Given i'. Des Moines, 997. Givens v. Van Studdiford, 116. Gizler v. Witzel, 199. Glandon v. Chicago, &c. Ey., 811. Glantz V. South Bend, 977. Glasby v. Morris, 1002. Glasgow V. St. Louis, 951. Glaspy V. Cabot, 404. Glass V. State, 949. Glassey v. Hestonville, &c. Ry., 583. Glasspoole v Young, 794. Glaze V. Western, &c. Rid., 1001. Gleason v. Amsdell, 996. V. Goodrich Transp. Co., 1158. Gleeson v. Virginia Midland Rid., 1024. Glenn v. Columbia, &c. Rid., 38. V. Garrison, 397. V. Kays, 819, 1248. Glidden v. Elkins, 783. Gloucester, State v., 952. Glover v. Gray, 586. V. London, &c. Ry., 43. Goddard v. Grand Trunk Ey., 609, 1067, 1068. Godefroy v. Dalton, 705. Godley v. Hagerty, 48.3. Godsell V. Fleming, 430. Goelet V. Newport, 1002. Goetcheus v. Matthewson, 31. GofE r. Brainerd, 938. V. Great Northern Ry., 725. V. Kilts, 1250. V. O'Conner, 813. Golden v. Manning, 1186. Golderman v. Stearns, 269. Goldschmid v. Starring, 916. Goldsmid v. Tunbridge Wells Imp. Com., 894. Golightly V. Reynolds, 406. Goltz B. Winona, &c. Rid., 463, 466. Gonthier v. New Orleans, &c. Rid., 459, 1159. Gonzales v. Cobliner, 225. V. New York, &c. Eld., 1026, 1089. Good V French, 239, 240. Goodale v. Portage Lake Bridge, 963. V. Tuttle, 878. Goodall V. Godfrey, 872. Goodbread v. Ledbetter, 292. Goode V. Martin, 1235. Goodenow v. Tappan, 254. Goodfellow V. New York, 743, 764. Goodin v. Des Moines, 992. Goodlett V. Louisville, &c. Rid., 469. Goodloe V. Cincinnati, 723. Goodman v. Richmond, &c. Eld., 648. Goodnough v. Oshkosh, 177, 743, 963. Goodrich v. Burbank, 868, 891. Goodrich v. Chicago, 748. Goodwin v. Chicago, &c. Rid., 1229. V. Hersom, 710. Goodwyn v. Cheveley, 1224. Goold, State v., 1080. Gordon v. Baxter, 424. V. Buchanan, 166. V. Harper, 897. V. Manchester, &c. Eld , 1059. Gore V. Norwich, &c. Transp. Co., 1159. Gorham v. Gross (117 Mass. 442), 916. V. Gross (125 Mass. 232), 843. Gormely v. Milwaukee Gymn. Assoc, 333. Gorniley v. Sanford, 898. Gormly v. Vulcan Iron Works, 666, 668. GorreU v. Snow, 247. Gorris v. Scott, 1.32. Gorton i-. Brown, 243, 244. ■». ErieRy., 1043. Goslin V. Wilcock, 228. Gosling V. Morgan, 266. Gothard v. Alabama Great So. Rid., 1042. Gott V. Dinsmore, 1160. V. Pulsifer, 254, 257, 274, 347. Gottlieb V. New York, &c. Eld., 1024. Gould V. Barratt, 245. V. Booth, 1000. V. Boston Duck Co., 890, 891. V. Chicago, &c. lly. (00 Iowa, 590), 38. V. Chicago, &c. Ry. (5 McCrary, 502 ; 18 Fed. Eep. 155), 1097. V. James, 1254. V. Hammond, 789. Gourgues v. Howard, 211. Government St. Eld. v. Hanlon, 583, 586. Govett V. Eadnidge, 73. Gradin v. St. Paul, &c. Ey., 1092, 1094. Grady v. Wolsner, 412, 422. Graeter v. Williams, 241. Graham v. Gautier, 710. V. Houston, 521. V. Stone, 293. Graihleu. Hown, 918. Grainger a. Hill, 210. Gramm v. Boener, 710, 714. Grammer v, Nixon, 612. Grand Junction Canal v. Sliugar, 878. Grand Rapids, &c. Eld. v. Monroe, 812. V. Showers, 732. Grand Trunk Ey. v. Cummings, 451. V. Stevens, 1076. Grandona v. Lovdal, 417. 819. Granger v. Boston, &c. Eld., 1271, 1273. Grannis v. Cummings, 837. Grant v. Allen, 431. V. Hannibal, &c. Ry., 1229. V. McDonogh, 441. 667 GBE INDEX TO THE CASES CITED. GEO Grant v. Moseley, 436. V. Bicker, 1240. V. Slater Mill, &c. Co., 652. V. Stillwater, 986. Grau 0. St. Louis, &c. Ey., 1229. Gravelle v. Mianeapolis, &c. By., 663, 665. Graves v. Dawson (130 Mass. 78), 248. V. Dawson (133 Mass. 419), 248. V. Severens, 499 V. Shattuck, 1016. V. Thomas, 994. Graville v. Manhattan Rid., 1091. Gray v. Boston Gas-light Co., 535. V. Danbury, 530. V. Degge, 245. V. Durland, 378, 379, 381. V. Harris, 440, 840. 1'. KnoxTille, 997. V. Missouri Eiver Packet, 1153. y. Palmer, 326. V. Portland Bank, 609. V. PuUen, 150, 611. V. Scott, 1271, 1273. V. Taper-sleeve Pulley Works, 1276, 1277. Grayville v. Whitaker, 471. Greany v. Long Island Rid., 1043. Great Northern By. u. Shepherd, 1151, 1154. Great Western Rid. v. Hawortli, 436. Great Western Ry. v. Bunch, 1161. V. Miller, 611, 1097, 1281. Great Works Mil. &c. Co.^ State v., 722. Greeley v. St. Paul, &c. By., 1229. Green v. Banta, 648. V. Bartram, 824. V. Bethea, 958. V. Bryant, 315. V. Doyle, 12.38. V. Elgle, 211, 707. V. Erie Ry., 463. V. (3oddard, 824. V. Harrison, 743, 758. V. Hudson River Rid., 1269. V. Lake, 418, 428. V. London Gen. Om. Co., 723. V. Milwaukee, &c. Rid. (38 Iowa, 100), 1158. V. Milwaukee, &c. Eld. (41 Iowa, 410), 1158, 1159. V. Bennett, 704. u. Rumsey, 209. V. Shumway, 31. V. Spencer, 1020. V. Sperry, 401. V. Swift, 788. Green, &e. Ry. v. Bresmer, 644. Green Ridge Bid. v. Brinkman, 1027. Greene v. Canny, 873. V. Kubanks, 743. V. Minneapolis, &c. By., 677. 668 Greene v. Nunnemacher, 426. Greenfield Bank v. Leavitt, 401. Greenland v. Chaplin, 459, 460, 464. Greenleaf v. Francis, 883, 885, 912. Greenwald v. Kappes, 916. !•. Marquette, &c. Eld., 683. Greenwood v. Callahan, 1012. V. Greenwood, 380. V. Louisville, 743, 762. V. Seymour, 615. Greer v. New York, 753. Gregg V. Weathersfield, 1020. Gregory v. Atkins, 288. V. Brooks, 789. V. Brunswick, 359. «. HiU, 824. V. Piper, 609. V. Stryker, 939. Gremaire v. Le Clerc Bois Valon, 708. Grenville v. College of Physicians, 781. Greonvelt's Case, 708. Gresham v. Grinsley, 350. Grethen v. Chicago, &c. By., 1036, 1037. Greville v. Chapman, 283. Gribben v. Hansen, 429. Gribble v. Pioneer Press, 281. V. Sioux City, 459, 1012. Grider v. Tally, 743, 745. Grier !,■. Dehan, 319. V. Sampson, 1017. V. Ward, 855. Griffin v. Chicago, &c. Ry., 1043. V. Moore, 254, 267. V. Sanbornton, 978. 1>. Willow, 1013. Griffith V. Charlotte, &c. Rid., 1268. !!. Fowler, 932. V. Frazier, 773. V. Uwis (17 Mo. Ap. 605), 858. Griffiths V. Lewis (7 Q. B. 61), 291. u. Wolfram, 687. Grigg V. Landis, 938. Griggs V. Fleckenstein, 451, 459. ' Grigsby v. Chappell, 952. Grinnell v. Cook, 1181. V. Wells, 378, 382. V. Western Union Tel., 1205, 1209. Grippen «. New York Cent. Bid., 1026. Grisby v. Clear Lake Waterworks, 71, 424. Grissell v. Housatonic Bid., 1031. w.Peto, 706. Griswold v. Chicago, &c. By., 1109. V. New York, &c. Bid., 1076. Groff B. Ankenbrandt, 431. Grogan v. Broadway Foundry Co., 743, 971, 1271. Gronan v. Kukkuck, 199. Grose v. West, 989. Grossenbach v. Milwaukee, 978. Grotenkemper v. Harris, 1271. HAH INDEX TO THE CASES CITED. HAN Grove v. Brandenburg, 489. V. Fort Wayne, 743, 754. V. Kansas, 962. V. Van Duyn, 745, 783. Growcock v. Hall, 600. Grube ». St. Paul, 743, 762. Grund v. Van VIeck, 523. Gubasko v. New York, 4-52. Gudger v. Western North Car. Eld., 522. Guernsey v. Pitkin, 594. Guess V. Stone Mountain Gr. &c. Ey. 982. Guggenheim v. Lake Shore, &c. Ey., 1271. Guidry v. Davis, 565. Guille V. Swan, 819. Guillermo, The, 927. Gulf, &c. Ey. 0. Dorsey, 526. V. Fuller, 982. V. Holliday, 440. V. Eedeker, 683. V. Styron, 854. V. Wallen, 1108. Gulick, People v., 199. Gulline v. Lowell, 1012. Gully V. Smith, 146, 626. Gumz V. Chicago, &c. Ry., 683. Gundry v. Feltham, 1248. Gunter r. Astor, 370. ». Graniteville Manuf. Co. (15 S. C. 443), 459, 463, 665. V. Graniteville Manuf. Co. (18 S. C. 262), 665, 667. V. Wicker, 463. Gurnsey v. Lovell, 213. Gutsole V. Mathers, 347. Gwinnell v. Earner, 1004. Gwynn v. Duffield, 446, 716. Haack v. Fearing, 610. Haag 1). Cooley, 262. Haas V. Grand Rapids, &o. Eld., 445. Hacke's Appeal, 428. Hackett v. Middlesex Manuf. Co., 469. Haddrick v. Heslop, 239. Hadencamp v. Second Avenue Eld., 1118, 1119. Hadley v. Taylor, 994. V. Upshaw, 1175. Haff V. Minneapolis, &c. Ry., 1 086. Hafford v. New Bedford, 743, 761. Hagan v. Philadelphia, &c. Ry., 1122. Hagar v. Buck, 938. Hagee v. Grossman, 3.33. Hagerty v. Powers, 552. Hagood V. Southern, 338. Hahn, In re, 706. ». Schmidt, 230. Hahnemannian, &c. Ins. Co. u. Beebe, 728. Haight V. Badgeley, 371. V. Hayt, 334. V. Price, 892. Haldeman v. Bruckhart, 881, 888. Hale V. Johnson, 602. V. Lawrence, 126. V. Smith, 470. V. Van Dever, 1240. ' Haley v. Case, 648. V. Colcord, 162. Hall B. Adkins, 265. V. Armstrong, 868. V. Coe, 1278. V. Connecticut Eiver Steamb. Co., 1064. B. Fond du Lac, 966. B. Hawkins, 242. B. Hollander, 374, 558. B. Johnson, 639, 647. V. McLeod, 872. B. Missouri Pac. Ey., 665, 667. B. Pike, 1170. B. Renfro, 1218. B. Unity, 975. B. Warner, 928. Hallam b. Means, 710. Halley, The, 67. Hallock B. Dominy, 211. Hallowell, &c. Bank u. Howard, 794. Halpin b. Kansas, 975. Halsey b. Brotherhood, 351. Halverson v. Nisen, 665. Ham B. New York, 743, 763. V. Wales, 743, 966. Hamaker b. Blanchard, 936. Hamilton b. Carthage, 740. B. Davis, 934. B. Des Moines Valley Eld., 665. B. Eno, 129. B. Lomax, 57. V. Mighels, 749. B. New York Cent. Rid., 1083. B. Texas, &c. Ry., 1109. B. Vicksburg, &c. Eld., Ill, 120, 986. V. Whitridge, 421. B Williams, 781. Hamlin b. Pairpoint Manuf. Co., 896. Hamm b. Wickline, 262. Hammack b. White, 443. Hammar v. Covington, 743. Hammatt v. Wyman, 519. Hammer v. Pierce, 555. Hammersmith, &c. Ey. v. Brand, 117. Hammock v. White, 182. Hammond b. Mukwa, 1012. B. Northeastern Eld., 74. , Rex v., 955. Hamond v. Howell, 781. Hancke b. Hooper, 701. Hancock b. Rand, 1171. Hand, United States v., 191. 669 HAB INDEX TO THE CASES CITED. HAT Handcock v. Baker, 125, 822. Handyside u. Powers, 851. Hankinson v. Bilby, 277. Hanks v. Deal, 565. Hanlin v. Chicago, &c. By., 898. Hanlon v. Ingram, 838. V. Soiitli Boston Horse Eld., 1025. Hannibal, &c. Rid. v. Fox, 665, 667. V. Martin, 1089. V. Missouri River Packet Co., 953. w. Swift, 1152, 1154. Banning v. Bassett, 257. Hannon v. Agnew, 1019. Hanover Rid. v. Coyle, 442. Hanscom v. Boston, 743, 964, 965. Hanse v. Cowing, 858. Hansford v. Payne, 142, 716, 1271. Hanson v. Edgerly, 318. V. European, &c. Ry., 1115. V. MuCue, 885. V. Mansfield By. &c. Co., 608, 619, 1092. Harbidge v. Warwick, 924. Hardcastle v. South Yorkshire, &o. Co., 994. Harden, State v., 949. Harding v. Medway, 949. Hardman v. Booth, 101. Hardy v. Carolina, &c. Ey., 665. V. Clendening, 929. V. Metzgar, 932. V. North Carolina Cent. Rid., 1024. Hargrave v. Tie Breton, 348 Hargreaves v. Deacon, 60, 845, 846. V. Kimberly, 819. Harkrader v, Moore, 225. Harlan v. St. Louis, &c. Rid. (64 Mo. 480), 1036. V. St. Louis, &c. Ry. (65 Mo. 22), 37. V. Wabash, &c. By., 1229. Harlow v. Green, 319. I). Rogers, 989. Harman v. Brotherson, 786. V. Delany, 278. i;. Tappenden, 31, 786, 789. Harmonil v. Pearson, 424, 965. Harold, The, 607. Harold v. New York Cent. &c. Rid., 683. Harper v. Indianapolis, &c. Rid. (44 Mo. 488), 653. i>. Indianapolis, &c. Eld. (47 Mo. 567), 644. 653. V. LufEkin, 380. Harpham ». Whitney, 282. Harriman v. Stowe, 627. Harrington v. Wadsworth, 796. Harris v. Baker, 768. 1'. Bowden, 321. V. Briseo, 37, 487, 489. V. Butler, 382. 670 Harris r. Cohen, 858. V. Costar, 1063, 1129. V. Elliott, 989. V. Hannibal, &c. Eld., 1106. V. Hatfield, 1227. V. Minneapolis, &c. Ry., 1041. V. Mobbs, 1004. V. Perry, 848. V. Rosenberg, 524. V. Ryding, 911. Harrison v. Bush, 303. V. Harrison, 199,' 200. 1>. Savage, 320. V. Stratton, 263. Harriss v. Mabry, 455. Hart V. Albany, 4-30. V. Aldridge, 370. V. Basset, 950. V. Baxter, 222. V. Dubois, 792. u. Frame, 704, 705. V. Gumpach, 306. V. Hudson River Bridge, 470, 973. V. New York Float. Dry Dock Co., 665. V. Red Cedar, 1012, 1013. V. Skinner, 401, 405. V. Tallmadge, 315. V. Ten Eyck, 938. V. Walker, 386. V. Wall, 347. V. Western Union Tel., 1209. Harter v. Morris, 706. Hartfield v. Roper, 558, 570, 676, 581. Hartford v. Brady, 1224. Hartley v. Cummings. 370. V. Herring, 254, 273. Hartman v. Muscatine, 1013. Hartwell t>. Kelly, 813. Harty v. Central Rid., 1036, 1038. Harvard College v. Stearns, 430. Harvey v. Brydges, 197. V. Bush, 341. 1'. Dunlop, 177. o. New York Cent. &c. Rid., 1271.' V. Rose, 954. V. Terre Haute, &c. Rid., 1160. V. Young, 327. Harwood v. Tompkins, 923. Haskell v. New Gloucester, 973. V. Penn Yan, 743. Haskins v. Royster, 370, 371. Haslock V. Fergusson, 320. Hassenyer v. Michigan Cent. Eld., 1148. Hastings v. Aiken, 426. V. Blue Hill Turap., 1072. V. Lusk, 300. V. Stetson (126 Mass. 329), 532. V. Stetson (130 Mass. 76), 310. Hatch V. Donnell, 819. V. Fuller, 379. V. Lane, 304. HEA INDEX TO THE CASES CITED. HEW Hatch V. Marsh, 1227. V. Pendergast, 499. Hatcliard v. Mege, 348. Hatfield v. Chicago, &c. Ry., 464. Hathaway v. Michigan Cent, lild., 675. 1'. Smith, 629. Hatt V. Nay, 677. Hatten v. Railroad, 1082. Haugh's Appeal, 412. Haughey v. Hart, 845, 994. Havens v. Erie Ry., 1043. V. Klein, 923. Haverstiok v. Sipe, 924. Hawes v. Fox Lake, 743, 1009. V. Knowles, 609, 614. Hawkesworth v. Thompson, 526. Hawkins v. Cooper, 459. V. Hoffman, 1151, 1156. V. Johnson, 649. * Hawks !'. Chariemont, 743, 764. V. Locke, 1227. V. Nortlmmpton, 1013. Hawley v. Baltimore, 958. V. Smith, 1175. Haws V. Stanford, 288. Hawthorn v. Hammond, 1168. Hawxhurst v. New York, 961. Hay V. Cohoes Co., 831. Haycraft v. Creasy, 320, 325, 505. Hayden v. Dutcher, 924. V. Skilllngs, 1024, 1029. Hayes v. Bush, &c. Manuf. Co., 644. V. Forty-second Street, &c. Rid., 1123. u. Michigan Cent. Rid , 132, 136, 994. V. Mitchell, 210. V. Oshkosh, 749. r. Wells, 1188. Hayman v. Molton, 163. Hayner v. Cowden, 271. Haynes's Case, 935. Haynes v. Haynes, 276. V. Thomas, 958. Hays V. Blizzard, 239, 249. V. Borders, 369. V. Creary, 499, 795. V. Hays, 898. V. Houston, &c. Rid., 734, 1024. V. Miller, 104, 834. Hayward v. Draper, 361. V. Seaward, 401. Haywood «. Hedrick, 609. Hazel V. Clark, 200. Hazeltine v. Edgmand, 821. Hazman u. Hoboken Land, &c. Co., 1140. Heacock v. Shermon, 952. V. Walker, 9-32. Head v. Amoskeag Manuf. Co., 896. Healey c. City Passenger Rid., 442, 1118. Healey v. Gray, 1180. Heap «. Parrish, 236. Heard v. Chesapeake, &c. Ry., 1229. V. Harris, 745, 781, 783. Hearn v. Chicago, 966. V. St. Charles St. Rid., 177, 1118. V. Waterhouse, 320. Heath v. Ricker, 802. V. Whitebreast Coal, &c. Co., 678. Heaven ». Pender, 436. Heazle v. Indianapolis, &c. Ry., 1103. Hebron Gravel Road v. Harvey, 887. Hedges v. Kansas, 1012. V. Tagg, 378, 381. Heeg V. Licht, 417. Heeney i'. Sprague, 132, 137. Heenrich v. Pullman Palace Car, 609. Hegan v. Eighth Avenue Rid., 1016. Hegarty v. Shine, 196. Hegerich v. Keddie, 1271. Heil «, Glanding, 460. Heimann v. Western Union Tel., 1210. Heine v. Chicago, &c. Ry., 665. Hellman v. Holladay, 1154, 1155. Helwig V. Jordan, 858. Hemenway v. Cutler, 813. Hemmer v. Cooper, 327. Hemmingway v. Chicago, &c. Ry., 1101. Hendershot v. State, 958. Hendershott v. Ottumwa, 743, 997. Henderson v. Broomhead, 299. V. Chicago, &c. Rid., 1048. V. St. Louis, &c. Eld , 1229. 1-. Stevenson, 1160. Henn's Case, 162. Henry v. Brady, 665, 683. V. Dennis, 529. V. Lake Shore, &c. Ry., 639. V, St. Louis, &c. Ry., 1089. V. Sioux City, &c. Ry., 469, 680. V. Southern Pac. Rid., 1029. Henry County Turnp. v. Jackson, 1013. Henshaw v. Rowland, 1186. Henson v. Veatch, 293, Hepburn v. Sewell, 399. Herbert v. Northern Pac, Rid,, 690. Hermann v. Bradstreet Co,, 280. Herr v. Barber, 56. Herrick v. Gallagher, 1190. V. Gary, 806, V. Sullivan, 1018. Herrington v. Lansingburgh, 743. V. Peck, 901. Herron ». Hughes, 356. Hertell v. Bogert, 608. Herzog v. Graham, 210. Hesseltine v. Stockwell, 938. Hetherington v. Sterry, 305. Hettihewage Siman Appu v. Queen's Advocate, 749. Hewey v. Nourse, 833. 671 HIP INDEX TO THE CASES CITED. HOL HewiC ». Wooten, 226. Hewitt V. Prime, 382. Hewlett V. Cracliley, 236. — :- ». Western Union Tel., 1210. Hewlins v. Sliippam, 420. Hexamer ». Webb, 169. Heydon's Case, 521. Heywood v. Tillson, 144. Hibbard r. New York, &=. Eld., 1097. V. Thompson, 714. V. Western Union Tel., 1209. Rickey v. Taa£fe, 547, 646, 651, 675. Hickman's Case, 869. Hickman v. Missoari Pac. Ry., 1271. Hicks V. Dorn, 773. ». Faulkner, 239, 240. V. Pacific Kid. (64 Mo. 430), 1023, 1036. V. Pacific Eld. (65 Mo. 34), 590. Hide V. Thornborongh, 912. Hieatt v. Morris, 914, 916. Higgins 17. Butcher, 1268. 0. Cherokee Rid., 1092. V. Dewey, 833. ». New Orleans, &c Rid., 1160. V. Reynolds, 990. V. State, 187, 197. V. WaterTliet Tump. &c. Rid., 1119. V. Whitney, 401. Highland Light, The, 690. Hill B. Boston, 743, 755, 758, 997. V. Caverly, 622, 628. V. Chicago, &c. Rid , 725. B. Cincinnati, &c. Ry , 819, 898. w. Fond du Lac, 978. e. Goodchild, 518, 522. V. Gust, 547, 651. V. Louisville, &c. Eld., 445, 1023. 0. Pine Eiver Bank, 1279. 0. Smith. 894. V. Syracuse, &c. Eld., 1084. V. Taylor, 214. V. Townsend, 1279. V. Ward, 351. B. Winsor, 4-57. Hiller b. Sharon Springs, 743. Hilliard u. Chicago, &c. Ry., 804. Hitlman v. Hurley, 68. Hilts V. Chicago, &c Ey., 655. Hinchman c. Paterson Horse Rid., 980. Hinckley v. Baxter, 406. V. Chicago, &e. Ry., 1097. V. Emerson. 413, 945, 1239. Hines v. Missouri Pac Ry., 810, 1229. Hinks V. Hinks, 874. Hinshaw v. Gilpin, 804. Hinton b. Dibbin, 441. o. Heather, 240. Hiort ». Bott, 403. Hipsley v. Kansas City, &C. Eld., 1065. 672 Hiishberg v. Dinsmore, 1160. Hiss r. Bartlett, 776. Hitchman v. Whitney, 379. Kite v. Blandfott), 1227. Hitte B. Eepnblican Valley Eld., 603. Hixson V. St. Louis, &e. Eld., 1043. Hoadley n. Northern Transp. Co.. 1160. Hoag I . Lake Siioie, &c. Eld., 47. Hoar c. Wood, 298, 300. Hoard v. Des Moines, 106. Hoare v. Dickinson, 901. ». Silverlock, 285. Hobart b. Hagget, 819. Hobbs V. Eastern Eld., 1271. B. London, &c. Ey., 1100. V. Stauer, 639. Hobert's Case, 206. Hoboken Land, &c. Co. a. Lally, 465. Hobson B. Perry, 943. HockeU V. State, 1213. Hocum V. Weitheriek, 470. Hodges B. Bales, 386 B. Hodges, 422. B. Nashville, 1261. Hodgkins v. Eockport, 594. Hodgkinson r. Ennor, 412. Hodgson IT. Dexter, 447. B. Nugent, 1171. V. Scarlett. 300. Hodkinson v. London, &c Ey., 1161. Hceger v. Chicago, &c. Ey., 1154. Hoehl V. Muscatine, 819. Hoester r. Hemsath, 901. HofE V. West Jersey Eld., 177, 184. Hoffman t>. Missouri Pac. Ev., 1^9. V. New York Cent. &c.'Eld., 1068. Hofnagle :>. New York Cent &c. Eld., 683. Hogan B. Central Pac. Eld., 671. B. Chicago, &c. By., 1037. B. Field, 649. Hogenson o. St Paul, &c. Ey., 901. Hogg V. Pinckney, 211. Hoke B. St. Louis, &c Ey., 660, 665. Holbrook v. Hyde, 938. Holcomb tt. Danby, 62. Holden ». Shattnck, 989. Holdom B. Ayer, 327. Holdridge v. Utica. &c. Eld., 1161. Hole V. Barlow, 419. Holford B. Bailey, 1253. Holland b. Lynn, &c. Eld., 1268, 1271. 17. West End Narrow Gauge Ey., 1229. Hollenbeck v. Rowley, 989, 990. Hollev V. Mix, 210. Holliday b. St Leonard, 768. 1>. Sterling, 235. Hollingsworth e. Shaw, 262. HoUins V. Fowler, 30. 101, 403, 404. Hollis V. Meux, 300. 0. Wells, 379. HOU INDEX TO THE CASES CITED. HUB Hollister v. Nowlen, 1057, 1058, 1060. 1152. Holly V. Boston Gas-light Co., 581. Holman v. Chicago, &c. Eld., 140. Holmes v. Bellingliara, 989. ». Caldwell, 316, 326. V. Goring, 872. V. Halde, 713. V. Hamburg, 952. V. Harrington, 46. V. Johnson, 227. V. Mather, 177, 179, 182. V. Peck, 706. V. Kemsen, 1279. 0. Seely, 162, 872. Holroyd ». Breare, 781. Holt I). Penobscot, 966. V. Scholefield, 262. V. Whatley, 470. Holtzman v. Hoy, 713. Holwood 0. Hopkins. 274. Homer v. Engelhardt, 283. V. Thwing, 76, 405, 667. Honegsberger «. Second Ave. Rid., 584. Honeyman o. Oregon, &c. Eld,, H67. Honor v. Albrighton, 587. Honsel v. Conant, 922. Hook I'. Hackney, 270. V. Worcester, &c. Rid , 1229. Hooker v. Cummings, 1254. V. Miller, 847. , Eex. v., 1279. V. Eochester, 743, 751. Hooksett V. Amoskeag, &c. Co., 39. Hoole V. Attorney-General, 429, 958. Hooper v. Columbia, &c. Eld., 680. Hoover v. Heim, 555. V. Texas, &c. Ry., 1026. Hope V. Evered, 230. Hopkins v. Crombie, 430. V. Crowe, 209, 211. V. Virgin, 571. V. Westcott, 1156, 1191. V. Western Pac. Rid., 416, 993. Hoppe V. Chicago, &c. Ry., 578, 580. Hoppin V. Worcester, 649. Hopwood V. Thorn, 291. Hordern v. Dalton, 1200. Horn V, Baltimore, 733. V. Boon, 242. Horner o. Marshall, 257, 506. V. Nicholson, 652. Horrigan v. First Nat. Bank, 325. Horsburg v. Baker, 938. Hospes V. Chicago, &c. Ry., 1090. Hot Springs Rid. v. Newman, 1229. Hoth V. Peters, 470, 665, 666. Houfe V. Fulton, 1070. Hough V. Texas, &c. Ry., 665. Houlden v. Smith, 783. Hounsell v. Smyth. 424, 994. Honpes i;. Alderson, 874. 43 Hourigan v. Nowell, 413. Houser v. Chicago, &o. Ry., 665, 690. V. Tully, 1177. Houston V. Gilbert, 319. V. Traphagen, 1012. Houston, &c. Cent. Ry. v. Carson, 463. V. Wilson, 1026. Houston, &c. Co. v. Terry, 132. Houston, &c. Rid. v. Clemmons, 1106. Houston, &c. Ry. v. Bradley, 1271. V. Cowser, 470. V. Devainy, 1097. V. Fowler, 675. V. Hampton, 1107. U.Leslie, 1109. V. McNamara, 648. V. Marcelles, 665. 667. V. Myers, 644, 663, 677. V. O'Hare, 675. V. Reason, 513. V. Rider, 685. V. Simpson, 586. 1). Terry, 1229. V, Wilson, 445. Hover v. Pennsylvania Co., 1271, 1281. Hoverson ». Noker, 652. Hovey v. Rubber Tip Pencil Co., 254, 257. Hovorka v. Minneapolis, &c. Ry., 811. Howard v. Black, 805. V. Chicago, &c. Rid., 1077. V. Denver, &c. Ry., 665. V. Gould, 318. V. Grover, 710. 0. Lee, 426. V. Legg, 743, 758. V. Stephenson, 266. V. Tyler, 1018. Howard Oil Co. v. Farmer, 678. Howd V. Mississippi Cent. Rid., 675. Howe V. Butterfield, 822. V. New Orleans, 764. V. Newmarch, 614. V. Young, 150, 455. Howe Machine Co. v. Pease, 1175. V. Souder, 728. Howell V. Batt, 628. V. Howell, 275. V. McCoy, 426. Howenstein v. Pacific Rid, 140, 1026. Howes V. Grush, 442, 896. Howland v. Howland, 380. V. Milwaukee, &c. Ry., 675. V. Vincent, 994. Howton V. Frearson, 872. Hoye V. Chicago, &c. Ry., 1024, 1271. Hoyt V. Hudson (27 Wis. 656), 898. V. Hudson (41 Wis. 105), 469, 470. V. Jeffers, 451. Hrebrik v. Carr, 1139. Hubbard v. Briggs, 315. , Commonwealth v., 948. 673 HUT INDEX TO THE CASES CITED. ILO Hubbard v. Mason City, 613. , People v., 816. «. Town, 924. Hubbell V. Meigs, 325, 330. V. Viroqua, 743, 754. ». Yonkers, 977, 1146. Hubener v. New Orleans, &c. Rid., 1099. Hucbting v. Engel, 565. Huck 17. Flentye, 916. Hucksbold V. St. Louis, &c. Ey., 1049. Hudkins v. Haskins, 57. Hudson V. Baxendale, 1218. V. Howlett, 490. V. Roberts, 1225. Huffw. Ames, 583. f. Missouri Pac. Ry., 1027. V. Watkins (18 S. C. 5]0), 370. B. Watkins (20 S. C. 477), 370. Huffman v. Chicago, &c. Ry., 655. Hufford V. Grand Rapids, &c. Ry., 1078. Hughes ». Anderson, 901. V. Galveston, &c. Ry., 1271, 1273. V. McDonough, 332. 1'. Muscatine, 468. V. Providence, &o. Rid., 989. V. Winona, &c. Rid., 680. Hugley V. Hugley, 277. Huizega v. Cutler, &c. Lumber Co., 6ol. Hulbert v. New York Cent. Rid., 1086. Hulehan v. Green Bay, &o. Ry., 1024. Hulett V. Swift, 1173, 1174. Hull V. Hall, 645. V. Kansas, 1146. Hull, &e. Ry., In re, 172. Humble v. Shoemaker, 382. Hume V. New York, 743, 963, 977. Humes v. Missouri Pac. Ry., 810. Humphrey v. Douglass, 565, 943. Humphries v. Brogden, 905. Hundhausen v. Bond, 1002, 1006. Hunt V. Ambruster, 915, 918. B. Bell, 270, 294. B. Lane, 5-35. V. Peake, 906. V. Salem, 442. V. Wotton, 203, 556. ■ Hunter v. Mathis, 781. Huntingdon, &c. Rid. v. Decker. 1271. Huntington v. Breen, 743, 962. Hurd V. Chesley, 1240. Hurlbut, People v., 739. Hursh V. Byers, 1181. Hurst V. Burnside, 459. Huse B. Glover, 955. B. Inter-ocean Publishing Co., 283. Hussey v. Coger, 665. V. Ryan, 445, 5-54, 558, 676, 859. Hutchins v. Brackett, 1199. V. Hutchins, 26, 354. 674 V. Boston Gag-light Co., Hutchinson 443. V. Olympia, 743, 758. V. York, &c. Ry., 639, Hutson V. New York, 758. Hutton V. Hamboro, 870. Hutts V. Hutts, 262. Hyatt B. Taylor, 1179. i: Wood, 197. Hyde v. Cookson, 939. B. Greuch, 249. B. Jamaica, 872. Iba B. Hannibal, &c. Rid., 1229. Idaho, The, 938. Ihl o. Forty-second St. &c. Rid., 578, 580, 1271. Illidge B. Goodwin, 39. Illinois, &c. Rid. b. Godfrey, 61. B. Hetherington, 439. B. Whalen, 648. Illinois Cent. Rid. b. Able, 1100, 1101. D. Arnold, 801. V. Baches, 471. V. Baker, 1229. V. Bethel, 170. V. Chambers, 1100. B. Cragin, 442, 5ia B. Crudop, 1271. B. Downey, 614. B. Frazier, 1029. e. Frelka, 1036. 0. Goddard, 1043. B. Godfrey, 1037. V. Grabill, 412, 426. B. Green, 1101. V. Hall (58 111. 409), 1229. V. Hall (72 111. 222), 1037. B. Hammer (72 111. 347), 1109. B. Hammer (85 111. 526), 471. V. Handy, 1159, 1162. B. Hutchinson, 513, 983. B. Johnson, 1080, 1097. V. Jonte, 1160. B. Jordan, 1025. B. Lutz, 1101. V. McKee, 1048. V. Morrison, 1160. B. Nelson, 1080. B. Patterson, 680. B. Phelps, 73. V. Phillips (49 lU. 234), 443, 1023, 1024. V. Phillips (55 111. 194), 1064, 1094. B. Slatton, 1101. V. Sutton, 1097. V. Tronstine, 1154. V. Walker, 1229. B. Weathersby, 1229. V. Whittemore, 1097. Ilott B. WUkes, 847, 1237. IRE INDEX TO THE CASES CITED. JAY Ilsley ». Nichols, 816. liulay V. Union Branch Rid., 982. Inchbald ». Robinson, 416, 421. Incledon v. Berry, 225. Indiana, &c. Ry. v. Craig, 1028. V. Dailey, 675. ». Drum, 1-229. V. Greene, 1040, 1041. V. Nicewander, 1031. V. Quick, 811. Indiana Car Co. v. Parker, 665, 667. Indiana Manu£ Co. v. Millican, 653. Indianapolis v. Cook, 1013. V. Emmetman, 1010. i>. Gaston, 1013. V. Buffer, 743, 746. ». Miller, 431. Indianapolis, &c. Rid. ». Allen, 1075. B. Blackman, 38. V. Bonnell, 1229. V. Christy, 1229. V. Hamilton, 1049. V. Harter, 809, 1229. «. Hemdon, 1187. V. HoTst, 470, 1064. V. Kennedy, 1080. V. Lindley, 811. 1-. McLin, 1015. V. MiUigan, 1097. V. Smith, 1029. V. Stables, 1049. Indianapolis, &c. Ry. v. Anthony, 614, 723. u. Beaver, 1092. V. Bimey, 1059. V. Johnson, 671. 1>. Jurey, 1218. V. McBrown, 1229. V. Pitzer, 1051. V. Rinard, 1080. IngaUs V. Bills, 1130. V. Bulkley, 406. logals B. Plamondon, 814, 916. Ingate v. Christie, 1185. Ingerson v. Miller, 382. Inglebright v. Hammond, 938. Ingwersen v. Rankin, 858. Inman v. Foster, 293. V. Tripp, 743, 751. Innes v. Wylie, 192. International, &c. Rid. v. Cocke, 1229. V. Wilkes, 1096. International, &c. Ry. v. Graves, 1041. V. Gray, 1025. ». Hassell, 1081. V. Irvine, 1092. ». Leak, 510. V. McCarthy, 683. V. Ormond, 469. V. Smith, 502, 1037. V. Timmerniann, 1027. Ireland v. Elliott, 199. Iron Mountain, &c. Rid. v. Johnson. 723, 726. Iron Mountain Bank v. Mercantile Bank, 731. Irons V. Field, 269. Ironton v. Kelley, 743, 746. Irvin V. Fowler, 995. Irwin V. Dearraan, 379. V. Great So. Telephone Co., 988. Island City, The, 934. Islands, The, 671. Ivens V. Cincinnati, &c. Ry., 1038. , Rex v., 1168. Ives V. Carter, 315. V. Ives, 197. Iviraey v. Stocker, 864, 891. Ivins V. Ackerson, 802. Jackman v. Arlington Mills, 894, 902. Jackson, Ex parte, 1195, 1202. V. Adams, 265. V. Chicago, &c. Ry., 1229. V. Kansas City, &c. Rid., 677. «>. Nashville, &c. Ry., 43. , People v., 948. i: St. Louis, &c. Ry. (74 Mo. 526), 1229. V. St. Louis, &c. Ry. (87 Mo. 422), 1271. V. Stacy, 871. Jacksonville v. Drew, 743, 961. Jacobs V. Andrews, 833. 1). Measures, 816. Jacobus V. St. Paul, &c. Ry., 1076. Jacocks V. Newby, 869. Jager v. Adams, 152, 439, 440. Jalie V. Cardinal, 1177. Jamaica Pond, &c. Corp. (/. Chandler, 869. James v. Brook, 270. V. Campbell, 178, 181, 195, 501. V. Emmet Min. Co., 665. 1>. Hayward, 1002. V. Le Roy, 369, 372. V. Phelps, 239, 240, 241. V. Rutlech, 269. Jamison.;;. Duncan, 918. V. Illinois Cent. Rid., 590. Jansen v. Atchison, 758. J'Anson u. Stuart, 282. .Tantzen r. Wabash, &c. Ry., 1229. Jaques v. National Exhibit Co., 993. Jaquish v. Ithaca, 952, 965, 966. Jaquith v. Hudson, 938. V. Richardson, 1017. Jarnigan v. Fleming, 222, 277. Jarratt v. Gwathmey, 391. Jarvis v. Baxter, 524. V. Blennerhasset, 521. V. St. Louis, &c. Ry., 416. Jay V. Whitfield, 847. 675 JOH INDEX TO THE CASES CITED. JON Jefcoat, State v., 874. JefEeries is Great Western Ry., 397. JeSers v. JeBera, 889. JeffersonriUe Rid. u. Rogers, 725, 1080, 1095. V. White, 405. Jeffersonville, &c!. Rid. v. Adams, 1229. V. Avery, 1229. V. Bowen, 579, 590. V. Brevoort, 1229. V. Ruber, 1229. 0. Lyon, 1229. V. Nichols, 1229. 1>. O'Connor, 811. w. Pannalee, 1100. «. Riley, 1271. 0. Sullivan, 811. V. Underliill (40 Ind. 229), 1229; u. Underbill (48 Ind. 389), 1229. V. Vancant, 1229. Jeffrey v. Keokuk, &a. Ry., 683. Jeniison v. Soutbwestern Rid., 1239. Jenkins v. Smitb, 271. V. Steanka, 038. w. Turner, 12.30. V. Waldron, 31. Jenkinson v. Mayne, 266. Jenks 0. Williams, 990. Jenner v. A'Beckett, 284. Jenness v. Emerson, 874, 375. Jennings o. Fundeburg, 819. V. Maddox, 142. II. Pennsvlvania Rid., 184. V. Rundall, 566. , State v., 398. 0. Van Schaiek (13 Daly, 438), 524, 995. o.Van Schaiek (108 N.T. 5BO),1013. Jennisoh v. Walker, 891. Jerome v. Smith, 1096. Jessen v. Sweigert, 132, 138. Jetter v. New York, &c. Rid., 112, 137, 1104. Jewell V. Chicago, &c. Ry., 1101. V. Grand Trunk Ry., 612. Jewett ». Gage, 1002. Joannes o. Bennett, 303, 304. 1). Burt, 269. Jochem v. Robinson, 986. Johnson, Ex parte, 645. V. Boston, 665. V. Boston Tow-boat Co , 639, 647. 11. Bruner, 644, 676, 848, 851. V. Canal, &e. Rid., 468. B. Chicago, &c. Ry. (58 Iowa, 348), 1068. V. Chicago, &c. Ry. (31 Minn. 57), 451, 456. V. Chicago, &c. Ry. (77 Mo. 546), 1049. V. Chicago, &c. Ry. (56 Wis. 274), 586. 676 Johnson v. Chicago, &c. Ry. (64 Wis. 425), 1271. V. Copeland, 1279. V. Ebberts, 211. V. Emerson, 245. V. Farr, 929. V. Hitchcock, 349. V. Irasburgb, 62. V. Jordan, 890. 1). King, 245. V. McDaniel, 77. V. Marriott, 706. v. Miller, 240, 242. V. Missouri Pac. Ry., 685. V. Patterson, 847, 943. V. Philadelphia, &c. Rid., 1083. V. Reed, 490. V. Reynolds, 1171. V. Salem Turnpike, 967. -= — I'. Shields, 266. , State v., 948. V. Stayton, 869. V. Tillson, 472. V. Tompkins, 190, 206. V. Winona, &c. Rid., 1064. Johnston v. Uistrict of Columbia (1 Mackey, 427), 748. V. District of Columbia (118 U. S. 19), 743, 746. V. Martin, 242. V. Moorman, 745, 781. V. Pittsburgh, &c. Rid., 665. V. Riley, 795. Johnstone v, Sutton, 240. Johnstown Cheese Manuf. Co. u. Veghte, 885. Joliet V. Conway, 743. Jones ». Andover (10 Alien, 18). 62. V. Andover (6 Pick. 59), 949. V. Angell, 714. V. Barclay, 869. V. Bewicke, 288. 1;. Blocker, 870. V- Boyce, 445. V. Brown (1 Esp. 217 ; Peake, 233), 371, 555, 558. V. Brown (54 Iowa, 74), 788. V. Clay, 187. V. Columbia, &c. Rid., 1229. V. Diver, 272. V. Fay, 709. V. Festiniog Ry., 178, 184. i;. Florence Mining Co., 547, 651. V. Gwynn {\0 Mod. 148), 243. V. Gwynn (10 Mod. 214), 353. V. Housatonic Rid., 1147. V. Jones (3 Dev. 860), 783. u. Jones (71 111. 562), 143, 824. V. Lake Shore, &c. Ry., 677. V. Littler, 270. II. Liverpool, 599. V. LouisvUle, &c. Rid , 680. KAN INDEX TO THE CASES CITED. EEL Jones V. Michigan Cent. Rid., 1027. V. Nichols, 845, 994. V. Nortli Carolina, 1229. V. Osborn, 1165. V. Rivers, 309. 1>. Sheboygan, 1229. II. Sherwood, 1240. V. Stanly, 493. V. Tevis, 376. V. Thurloe, 404. V. Townsend, 129, 281. V. Tyler, 1178. V. Utica, &c. Rid., 686. V. Wabash, &c. Ry., 1080. V. Western N. C. Rid., 809. ». Western Union Tel., 1209. V. Westervelt, 363. ». Williams, 481. Jordan v. Alabflma Great Southern Rid. (74 Ala. 86), 731. V. Alabama Great Southern Rid. (81 Ala. 220), 242. V. Fall River Rid., 1156. V. Pickett, 332, 337. V. Wyatt, 499. Jorden v. Money, 326. Jordin ». Crump, 847, 943. Joseph Stickney, The, 1137. Joslin V. Grand Rapids Ice Co., 1145. Joy V, Boston Penny Sav. Bank, 916. V. Morgan, 706. V. Winnisimmet Co., 1140. Joyce V. Woods, 743. Judd V. Fargo, 991. V. Wabash, &c. Ry.;i229. Judge V. Cox, 1234. Julia Building Assoc, i.-. Bell Tele- phone, 1004. Julian V. Western Union Tel., 1207. Julien V. The Wade Hampton, 1137, 1139. Juniata, The, 39, 473. K. V. H., 263. Kabus V. Frost, 858. Kahl V. Love, 150, 446. Kain v. Smith, 647. Ealbfleisch v. Long Island Rid., 1028, 1030. Kaler v. Campbell, 896 Kalis V. Shattuck, 858. Eannen v. McMuIlen, 710. Kansas, &c. Ry. v. Fitzsimmnns, 602. Kansas City, &c. Rid. v. Kelly, 1051. B. Morrison, 1156. V. Riley, 898. V. Summers, 1229. Kansas Pac. Ry. v. Brady, 464, 1030. V. Cutter, 1271. V. Mihlman, 819. V. Miller, 1271. Kansas Pac. Ry. v. Peavey (29 Kan. 169), 459, 641, 6a0. V. Peavey (34 Kan. 472), 690. V. Salmon (11 Kan. 83), 658. V. Salmon ( 14 Kan. 512), 1271. Kappes V. Appel, 843. Karle v. Kansas City, &c. Rid., 87. Karr v. Parks, 445, 679. Kaucher v. Blinn, 269. Kauffman v. Griesemer, 889, 898. Kaufman v. Wicks, 235. Kavanaugh v. Janesville, 443. Kay V. Pennsylvania Rid., 1037. Kean v. Baltimore, &c. Rid., 513. Keane v. Boycott, 371. Kearney v. Fitzgerald, 515. Kearns v. Chicago, &c. Ry., 1024. Keating v. Cincinnati, 997, 998. V. Korfhage, 916. V. New York Cent. Rid. (3 Lans. 469), 1086. V. New York Cent. &c. Rid. (49 N. Y. 673), 1099. Keats V. Hugo, 912, 923. Kedrolivansky v. Niebaum, 267. Keeble v. Hickeringill, 146. Keefe v. Boston, &c. Rid., 1086. V. Sullivan County Rid., 988. Keegan v. Hayden, 522. Keeley v. Erie Ry., 530. Keeling's Road, 869. Keemle u. Sass, 280. Keenan v Cavanaugh, 801. V. Cook, 31. V. Southworth, 1196, 1199, 1200. Keffe V. Milwaukee, &c. Ry., 854. Kehr v. Snyder, 172. Kehrer v. Richmond, 743. 751. Keightlinger v. Egan (65 111. 235), 1234, 1236. Keim v. Union Ry. &c Co., 1049. Keiper v. Klein, 923, 924. Keim v. Warfield, 499, 819. Keith V. Brockton, 1000. V. Howard, 793. Keliher v. Connecticut River Rid., 1229. Kelk V. Pearson, 429. Keller v. Equitable Fire Ins. Co., 730. Kelley v. Boston, &c. Rid., 1271. V. Chicago, &c. Ry. (35 Minn. 490), 676. V. Chicago, &c. Ry. (53 Wis. 74), 683. V. Columbus, 973. V. Fond du Lac, 970. V. Hannibal, &c. Rid., 1045. V. Norcross, 649. V. Union Ry. &c. Co., 1036. V. Wilson, 675. Kellogg i: Janesville, 743, 768. V. Sweeney, 1176. 677 KEY INDEX TO THE CASES CITED. KIB Kellogg V. Thompson, 1000. Kellow V. Central Iowa Ry., H05, 1269. Kelly V. Abbot, 665, 680. V. Baltimore, 997. V. Chicago, &c. Eld., 1043. V. Detroit Bridge Works, 649. V. Dunning, 899, 901. V. Erie Telegraph, &c. Co., 665, 667. V. Hendrie, 459. V. Partington, 273. , People v., 953. V. St. Paul, &c. Ry., 1049. V. Southern Minn. Ry., 1046. V. Tilton, 1225, 1234. V. Union Ry. &c. Co., 680. Kelsey v. Barney, 438. V. Berry, 1175. Kemmish v. Ball, 1227. Kemp V. Burt, 705. V. Neville, 771, 781. Kendall v. Boston, 443. II. London &c. Ry., 1217. V. Stokes, 786. V. Stone (2 Sandf. 269), 348. ». Stone (1 Selden, 14), 348. Kendillon v. Maltby, 274, 296. Kennard o. Burton, 555, 1017. , Commonwealth v., 945. Kennayde v. Pacific Rid., 445, 1049. Kennedy v. Chicago, &c. Ry., 1046. V. Cumberland, 958. ». HoUaday, 248. V. Manhattan Ry., 675. V. Shea, 380. Kenney v. Hannibal, &c. Rid., 1227. V. McLaughlin, 634. V. Shaw, 676. Kenny v. Cunard Steams. Co., 665. Kent «. Baltimore, &c. Rid., 1079. V. Cheyenne, 743, 744. V. Judkins, 162. B. Shuckard, 1173, 1176. ». Todd, 859. V. Waite, 867. V. Worthing Local Board, 768. Kentucky Cent. Rid. w. Thomas, 104, 177, 459, 1063, 1103, 1106. Kenworthy v. Ironton, 1012. Kepperly v. Ramsden, 602, 606. Kerbey v. Denby, 816. Kerns w. Piper, 612. Kerr v. Forgue, 586. V. O'Connor, 1240. Kersey v. Kansas City, &c. Rid., 653. Kertschacke v. Ludwig, 1231. Ketchum v. American, &c. Express, 1160. Kevern v. Providence Gold, &c. Min. Co., 671. Keyes v. Marcellus, 909. V. Snyder, 92. 678 Keyser v. Chicago, &c Ry., 61, 140, 686, 800. Keystone Bridge v. Newberry, 665. Keyworth v. Hill, 400. Khron v. Brock, 606, 858. Kibele v. Philadelphia, 743, 759. Kidder r. Chellis, 694. V. Parkhurst, 240. Kidney v. Stoddard, 340. KiefEer v. Imboff, 864. Kielley v. Belcher, &c. Min. Co., 665. Kierman, tJnited States v., 194. Kightlinger v. Egan (75 III. 141), 1234, Kilderby, Rex. »., 76, 629. Kiley ». Kansas, 743, 971. Killion V. Power, 838. Kimball v. Bangs, 327. V. Billings, 404. V. Cochecho Rid., 872. V. ComstBck, 320. V. Custer, 816. V. Harman, 356. V. Holmes, 1228. V. Norton, 150. Kimes v. St. Louis, &c. Ry., 1048. Kimmans v. Chandler, 317. Kimmis u. Stiles, 261, 262. Kinard v. Hiers, 326. Kincaid v. Eaton, 936. Kin^ V. Cleveland, 974. V. Henkie, 1271. V. Jefferson City School Board, 595. — - V. Kline, 945. V. New York Cent. &c. Rid., 602. V. Ohio, &e. Ry. (14 Fed. Rep. 277), 644. V. Ohio, &c. Ry. (22 Fed. Rep. 413), 510, 1115. B. Ohio, &c. Ry. (25 Fed. Rep. 799), 456. B. Root, 257. B. Sanders, 430. B. Waring, 291. Kings County Fire Ins. Co. v. Stevens, 991. Kingsbm:y v. Dedham, 529, 976. V. Pond, 794. Kingsley v. Holbrook, 81 -S. Kinney v. Central Rid., 1076. ». Hosea (3 Barring. Del. 77), 262. B. Hosea (3 Harring. Del. 397), 306. II. Laughenonr, .378. V. Nash, 270, 271. , State v., 1097. V. Troy, 978. Kinsley v. Lake Shore, &c. Eld., 1159, 1162. Kirby v. Adams Express, 1191. B. Boylston Market, 132, 137. KRE INDEX TO THE CASES CITED. LAN Kirk V. Atlanta, &c. Ey. (94 N. C 625), 665. -» — w. Atlanta, &c. Ey. (97 N. C. 82) 469. " Eirkland v. Dinsmore, 1160. Eirkman v. Handy, 426. Eirkpatrick v. Eagle Lodge, 302, 305. Eirland v. State, 192. . Eirtland v. Montgomery, 1189. Elssenger v. New York, &c. Rid., 1049. Eitteriugham v. Sioux City, &o. Ry. 646. ' Eittredge v. Elliott, 1225. V. Milwaukee, 743, 763. Elanowski v. Grand Trunk Ry., 1271. Elatt V. Milwaukee, 177, 442, 965. Elauder v. McGratli, 621. Eleimenhagen v. Chicago, &c. Bv. 1090. -^ Elein v. Gehrung, 924. V. Jewett, 1064. Elinck V. Colby, 305. Eline v. Central Pacific Rid. (37 Cal. 400), 455, 586, 611, 1051, 1097. V. Central Pacific Eld. (39 Cal. 587), 1097. Klipper v. Coffey, 463, 466. Klumph V. Dunn, 262. Knapp V. Fuller, 309. V. Sioux City, &c. Ry., 648. Enaresborough v. Belcher, &c. Min. Co., 1086. Enauss v. Brua, 412, 422, 858. Enell V. United States and Brazil Steams. Co., 736. Enickerbacker ». Colver, 521. Enickerbocker Life Ins. Co. v. Ec- clesine, 728. Knight V. Brown, 901. V. Gibbs, 274. V. Pontchartrain Eld., 1099. V. Smythe, 199. V. West Jersey Rid., 1276, 1281. V. Wilcox, 382. Enights V. Quarles, 700. Enowlton v. Erie Ry., 1160. V. Milwaukee City Ry., 64. Enox V. Commercial Agency, 310. V. Montgomery, 743, 758. Knoxville v. Bell, 743, 768. Eoelmel v. New Orleans, &c. Rid., HI, 115. Eoenig v. Haddix, 916. Eohn V. Lovett, 845, 862. Koontz V. Chicago, &c. Ry., 649. Eothenberthal v. Salem, 429. Kramer v. Lott, 228. V. Stock, 244. Eranz v. Baltimore, 743, 759. Krebs v. Thomas, 211. Ereig v. Wells, 576. Eresanowski v. Northern Pao. Rid., 680. Erler's Private Road, 958. Krippner v. Biebl, 834. Erohn v. Sweeney, 1179. Krom V. Schooniiiaker, 506, 507. Eroy i>. Chicago, &c. Rid., 680. Krueger v. Palatine, 990. Erug V. Ward, 232, 233. Erulevitz v. Eastern Rid. (140 Mass. 673), 239. 0. Eastern Eld. (143 Mass. 228), 236. ' Kuhl V. Jersey City, 316. Euhn V. Chicago, &c. Rid., 1229. Kuhns V. Wisconsin, &c. Ry., 683. Eunz V. Troy, 686, 962. Kuter V. Michigan Cent. Eld., 1156. Labar v. Crane, 242. Lacour v. New York, 724. Lacy V. Mitchell, 239. Ladd V. Poster, 1140. «. Pigott, 319, 325. Lade v. Shepherd, 989. Ladue v. Branch, 948. Lafayette v. Timberlake, 743, 752. Lafayette, &c. Rid., v. Huffman, 681. Lafollett V. McCarthy, 264, La Grange v. Southwestern Tel., 1206, 1212. Laherty v. Hogan, 1234. Lahr v. Metropolitan Elev. Ry., 981, 989, 992. Lake v. Eing, 301. V. Milliken, 529. Lake Erie, &c. Ey. „. Acres, 1068, 1060. V. Fix, 1078. 0. Zoffinger, 1049. Lake Shore, &c. Rid. v. Miller, 470, 1070. Lake Shore, &o. Ry. v. Bangs, 445, 459, 1101. V. Foster, 1168. V. Greenwood, 1072, 1080. V. Lavalley, 665, 6c6. V. McCormick, 675. V. O'Conner, 471. V. Rosenzweig, 734, 1072, 1077, 1081. V. Spangler, 641. «. Stupak, 666. Lalor V. Chicago, &e. Eld., 673. Lamb v. Camden, &e. Transp. Co., 1160. V. Old Colony Eld., 1147. V. Sloan, 837. Lamos v. Snell, 276. Lamparter v. Wallbaum, 526. Lampman v. Hammond, 370. Lancaster v. Richardson, 990. Lancaster Turnpike v. Rogers^,430. 679 LAW INDEX TO THE CASES CITED. LEO Landa v. Obert, 239. Landis :;. Campbell, 305. Landolt v. Norwich, 978. Liindon v. Humphrey, 710. V. Piatt, 813. Landrigaa v. State, 725. Lane v. Atlantic Works (107 Mass. 104), 39. o. Atlantic Works (111 Mass. 136), 586. V. Cameron, 405. V. Central Iowa Ky., 680. V. Cotton (1 Ld. Raym. 646; 5 Mod. 456; 11 Mod. 12; 12 Mod. 472 ; 1 Salk. 17), 628, 1199, 1200. V. Cotton (1 Salk. 143), 1153. V. East Tennessee, &c. Rid., 1080. 0. Hogan, 321. V. Woodbury, 743, 749, 766. Laney v. Kansas City, &c. Rid., 1229. Langan v. Atchison, 971. Langford v. Boston, &c. Rid., 211, 248. Langbam v. State, 371. Langhoff v. Milwaukee, &c. Ry., 1043. Langridge v. Levy, 46, 73, 77, 321. Langworthy u. New York, &c. Rid., 1192. Lanier v. Young Blood, 1179. Laning v. New York Cent. Bid., 671. Lanius v. Druggist Pub. Co., 306. Lannen c. Albany Gas-light Co., 609, 611. Lanning o. Chicago, &c. Ry., 1027. Lanphier v. Phipos, 701, 705, 710. Lansing v. Smith, 424. V. Stone, 833. V. Toolan, 743, 746. Lapere v. Luckey, 924. Lapointe v. Middlesex Hid., 1106, 1119. Larkin v. Saginaw, 746. Larmon v. District of Columbia, 966. Lamed v. Lamed, 869. V. Wheeler, 31. Larson v. Berquist, 547. V. Furlong, 71, 426. V. Grand Forks, 743. Lary v. Cleveland, &c. Rid., 60, 845. Lasala v. Holbrook, 906, 909, 912. Lassiter v. Western Union Tel., 1209. Lnsure v. Graniteville Manuf . Co., 665, 667. Latham v. Roach, 849. Laude v. Chicago, &c. Ry., 812. Laughton v. Bishop of Sodor and Man, 306. Lauraier v. Francis, 898. Laura, The, 934. Laverenz v. Chicago, &c. Rid., 1043. Laverone ti. Mangianti, 1230, 1235. Laverty v. Vanarsdale, 354. Lavery v. Cronke, .379. Law V. Harwood, 350. 680 Law ». Illinois Cent. Rid., 1097. Lawler v. Androscoggin Hid., 665. Lawless v. Connecticut R^ver Hid., 677. Lawrence v. Green, 1133. ». Hough, 916. V. Howard, 1172. V. Pullman's P^ace Car, 1114. V. Shipman, 606. V. Smith, 58. B. Spence, 57. Lawson v. Bank of London, 730. V. Chicago, &c. Ry., 1271. V. State, 194. Lawton v. Giles, 443, 834. V. Rivers, 872. League v. Journeay, 429. Leahy v. Southern Pac. Bid., 1271, 1273. Learned ». Hunt, 428. Learoyd v. Godfrey, 848. Leary o. Boston, &c. Rid., 677. Leavenworth v. Casey, 743. V. Laing, 958. Leavenworth, &c. Hid. v. Rice, 1040, 1049. Leavitt v. Chicago, &c. Ry., 469. Lecky v. McDermott, 932. Le Conteur v. London, &c. Ry., 1159. Lee 0. Hayes, 624, 931. V. Burk, 819. V. Hodges, 378. V. Minneapolis, &c. Hy., 811. V. Robinson, 624. V. Sandy HiU. 609. 11. Smith, 850. V. Walker, 698. V. Woolsey, 683. Leeds v. Richmond, 743, 759. Le Fevre v. IjC Fevre, 891. LefBer v. Buriington, 958. Le Forest ». Tolman, 1280. Legallee v. Blaisdell, 211. Legg V. Dunleavy, 280, 284. Lehigh Valley Rid. v. Brandtmaier, 1043. D. Greiner, 680. Lehman v. Kelly, 938. Lehn ». San Francisco, 743, 746. Leicester ». Walter, 255. Leigh V. Webb, 230. Leighton v. Sargent, 704, 710, 713. Lemon v. Chanslor, 1129, 1133, 1135. V. Chicago, &c. Ry., 1229. i). Newton, 733, 743. Lemont v. Washington, &c. Rid., 1118. Lenix v. Missouri Fac By., 1101. Leon, The, 1277. Leonard ». Allen, 277. V. Belknap, 938. V. Cincinnati, 990. V. Columbia Steam Nav. Co., 1271. ». Decker, 858. LIS INDEX TO THE CASES CITED. LON Leonard v. Fitchburg Rid., 1229. 0. New York, &c. Tel., 1206. Leoni o. Taylor, 743, 766. Lepp V. St. Louis, &c. Ky., 1229. Lesan v. Maine Cent. Rid., 1043. Leslie v. Lewiston, 581, 1009. V. Wabash, &c. Ry., 1101. Lessard v. Stram, 898. Lester v. Thurmond, 257, 300. Letton V. Goodden, 954. Levi V. Brooks, 611. Levy i<. Carondelet Canal and Nav. Co., 459. V. New York, 752. Lewis V. Baltimore, &c. Rid., 1046. V. Brainerd, 1.35. V. Bulkley, 142, 442, 1146. V. Chicago, &c. Ry., 1030. , ». Flint, &c. Ry., 1101. V. Hawley, 271. V. Hillman, 706. V. Johns, 622. V. Jones, 990. V. Littlefield, 565. ti. McAfee, 406. V. New York Sleeping Car, 1162. , Reg. v., 196. V. State, 743, 750. V. Stein, 425. Lewiston v. Proctor, 958. Leyenberger v. Paul, 242. Leyman i". Latimer, 289. Liberty ». Hurd, 743, 764. Lick V. Owen, 306. Liddy v. St. Louis Rid., 1118, 1119. Lide I'. Hadley, 867. Lightly V. Clouston, 72, 369. Liles V. Caster, 298. Lilienthal v. Campbell, 789. Lilley v. Fletcher, 459. Lillis V. St. Louis, &c. Ry., 1084. Limpus V. London Gen. Cm. Co., 610, 614. Linch V. Sagamore Mannf. Co., 675. Lincoln v. GlUilan, 442. V. Walker, 470, 1013. V. Woodward, 965. Lincoln Coal Min. Co. v. McNally, 665. Lindeman v. New York Cent. &c. Rid., 1044. Linden v. Graham, 347. Lindsay v. Larned, 145, 223. V. Winona, &c. Rid., 1030. Lindsey v. Chicago, &c. Ry., 1101. V. Danville, 1012. Linnehan v. Rollins, 602, 603. Linthicum v. Coan, 172. Lipe V. Eisenlerd, 379, 599. Lipscombe v. Holmes, 710. List V. Hornbrook, 915, 917. Lister v. Wright, 1278. Liston V. Central Iowa Ry., 811. Litchfield «. Hutchinson, 330. Litchfield Coal Co. v. Taylor, 1271. Little V. Hackett, 1070. V. Lathrop, 801. V. McGulre, 807. V. Madison, 743, 748. V. Moore, 781. 0. Oldaker, 708. V. Stanback, 31, 36. V. Tingle, 523. Little Miami Rid. i>. Fitzpatrick, 665. V. Naylor, 997. V. Wetmore, 612. Little Rock, &c. Ry. v. Atkins, 470, 1101. V. Barker, 590. V. Dean, 1083. V. Finley, 1229. ». Henson, 1229. V. Pankhurst, 513. V. Trotter, 1229. Little Rock, &c. Tel. v. Davis, 1206. Littleton v. Cole, 179, 833. Livermore v. Batehelder, 943, 945, 1239. V. White, 936. Livingston i;. Adams, 183. V. Bishop, 519. V. McDonald, 842, 898. V. Tompkins, 938. Loan V. Boston, 968. Lobdell V. Baker, 315. Lock V. Ashton, 211. Locke V. Bradstreet, 305. V. First Division, &c. Rid., 1229. Lockenour v. Sides, 244. Lbckwood V. Chicago, &c. Ry., 38, 652, 683. Lock wood Co. v. Lawrence, 894. Loeschman v. Machin, 404. Loeser v. Humphrey, 468. Loewer v. Sedalia, 743, 758. Loftus V. Union Ferry, 964. Logan V. Austin, 196. v. Gedney, 801. V. Hannibal, &c. Rid., 1081. ». Maytag, 236. V. People, 952. V. Western Union Tel., 1207. Logue V. Link, 1235. London v. Riggs, 872. London, &c. Ry. v. Lancashire, &c. Ry., 68. V. Truman, 118, 425. London Brewery v. Tennant, 921. Long V. Doxey, 1271. 1-. Gill, 870. V. Morrison, 709. , Rex v., 708. B. St. Louis, &c. Ry , 1229. Longmeid v. Holliday, 702. Longton Gas Co., Reg. v., 984. I^nsdale v. Nelson, 480, 431. 681 LOT INDEX TO THE CASES CITED. LYO Lonsdale v. Bigg, 1246. Look V. Dean, 510. Loomis V. Terry, 847, 1235, 1237. Lopez V. Central Ariz. Min. Co., 639. Lord V. Carbon Iron Manof. Co., 856. V. Goddard, 320. V. Hazeltine, 459. V. Wardle, 929. V. Wormwood, 801. Lorentz v. Robinson, 657. Losee v. Buchanan, 184, 831, 832. — — n. Saratoga Paper Co., 184. Lotan V. Cross, 928. Lott V. New Orleans City, &c. Rid., 1118. Lotty, The, 447. Loucks V. Chicago, &c. Ry., 1026. Loughlin v. State, 658, 665. Louisiana v. New Orleans, 743, 749, 753. Xouisville, &c. Canal u. Murphy, 583, 876. Louisville, &c. Rid. v. Brown, 1229. ». Burke, 1026. V. Case, 518, 1071. V. Connor, 445, 1023. V. Conroy, 665. u. Filbern, 66-5. V. Fleming, 1095. ». Gower, 675. 1). Guthrie, 43. ». Harris, 1084. V. Howard, 1037, 1038. V. Katzenberger, 1113, 1162. V. McKenna, 1104. B. Mahan, 1161. w. Mask, 1100. w. Schmidt, 1229. V. Sickings, 1107. B. Smith, 1118. V. Stone, 1229. B. SuUivan, 104, 513, 1095, 1097. B. Upton, 1229. B. Whitman, 1067, 1097. B. Wolfe, 1024. B. Yniestra, 1271. Louisville, &c. Ry. v. Bryan, 1042. B. Ehlert, 1027. B. Frawley, 64, 547, 651. B. Goodbar, 1229. B. Hanmann, 1027. B. Head, 1048. V. Jones, 527. D. Krinning, 1027, 1030. D. Pedigo, 1103. V. Shanks, 459. B. Spenn, 1027. B. Thomas, 1229. V. Thompson, 1024, 1271. Louisville Gas Co. v. Gutenkuntz, 609. Loupe B. Wood, 326.' Lovejoy b. Dolan, 1016. 682 Lovett B. Hobbs, 1152. V. Salem, &c. Bid., 1118. Low V. Elwell, 197. B. Grand Trunk Ry., 849. B. Mumford, 521. Lowe B. Holbrook, 428. V. Wartman, 247, 248, 249. Lowell B. Gathright, 1239, 1240. V. Proprietors of Locks, &c., 959. B. Watertown, 1013. Lowery b. Manhattan Ry., 46. B. Western Union Tel., 43, 47. Lowney v. New Brunswick Ry., 1027. Lowther v. Radnor, 783. Loyd V. Hannibal, &c Rid., 1100, 1101. B. Hicks, 783. Lucas B. Bishop, 103. V. Flinn, 262. V. New Bedford, &c. Eld., 1109. V. New York Cent. Bid., 1269. B. Trumbull, 76, 405. Luce V. Chicago, &c. By., 665, 690. Luddy V. Peard, 706. Ludlow B. Kidd, 319. Ludwig I). Cramer, 281. B. PilUbury, 469. Luebke v. Chicago, &c. Ry. (59 Wis. 127), 665. B. Chicago, &c. Ry. (63 Wis. 91), 639. LuSe, Rex v., 443. Luke B. Calhoun, 1271. Lukehart b. Byerly, 262. Lumley b. Gye, 339, 370. Lundy v. Central Pac. Bid., 1083. Lunn V. Shermer, 319. Lunt V. Philbrick, 57, 379. Lupton V. White, 938. Lusk B. Belote, 1169. Luther v. Winnisimmet Co., 889, 898. Lutterloh b. Cedar Keys, 993. Luttrell 8. Hazen, 819. Lux B. Haggin, 896. Lybe's Appeal, 879. Lyde a. Barnard, 320. Lygo B. New bold, 581. Lyle B. Clason, 286. Lyman b. Arnold, 990. Lynam v. Union By., 1017. Lynch o. McNally (7 Daly, 126), 146, 1235. V. McNally (73 N. Y. 347), 12.36. V. Metropolitan Kiev. Bv., 210. V. Nurdin, 39, 570, 573, 581, 586. B. Smith, 586. Lynde b. Johnson, 271. B. Eockland, 743, 768. Lynds v. Clark, 843. Lyon B. Cambridge, 974. V. Goree, 79.3. Lyons b. Briggs, 325. V. Brookline, 1019. MCC INDEX TO THE CASES CITED. MCG Lyons v. Child, 1017. V. De Pass, 932. ». Merrick, 801. , V. Woodward, 1268. Lytton V. Baird, 242. Maberry ». Missouri Pac Vty., 812. McAleer ». McMurray, 315. McArthur v. Green Bay, &e. Canal. 724. V. Saginaw, 970. Macauley o. New Yorlc, 976. McAvoy V. Medina, 936. McBean o. Eitcliie, 242. McBrayer v. Hardin, 68. V. HiU, 267. McBride v. Lynd, 801. McCafierty v. Spuyten Duyvil, &c. Rid., 606. McCaffrey's Appeal, 416, 418. McCaffrey v. Georgia Southern Rid., 686. V. Smith, 993. MeCaig v. Erie Ry., 1027. MeCaleb i'. Smith, 265. McCall V. Cohen, 745, 781, 783. McCalla v. Multnomah, 743, 758. V. Wood, 550. McCallum v. hong Island Rid., 1071. McCandless v. McWha, 710. McCann v. Day, 875. 1'. Tillinghast, 611. McCardle, Ex parte, 777. V. McGinley, 244. McCarthy v. Boston, 612. V. De Armit, 211. V. Niskem, 1168. V Portland, 529, 1009. McCarty v. Bauer, 701. V. Kitchenman, 867. McCausland i>. Cresap, 27. McCawIey v. Furness Ky., 1076. McClaren v. Indianapolis, &c. Rid., 442, 1037. McClary v. Sioux Citv, &c. Rid., 43. McClelland v. Louisville, &c. Ry., 1101. McClenaghan v. Brock, 612, 1129. McCUntock V. Crick, 292. McClure v. Red Wing, 1000. MeCombs v. Akron, 743, 751, 997. McConico v. Singleton, 1247. McConnel v. Kibbe, 422. McConnell v. Dewey, 771. McCool V. Grand Rapids, 1012. McCord ». High, 890. V. The Tiber, 473. McCorkle v. Chicago, &c. Ry., 1099. McCormick v. Hudson River Rid., 1156. V. Washington, 975. McCosker v. hong Island Rid., 671. McCoy V. California Pac. Rid., 811, 1229. V. Erie, &c. Transp. Co., 1160. V. Keokuk, &c. Rid., 1217. V. Philadelphia, &c. Rid., 1002. V. Phillips, 943. MoCracken ». West, 331. McCieady v. South Carolina Rid., 442. McCrory v. Chicago, &e. Ry., 1046. McCrowell v. Bristol, 743, 7.54. McCubbin v. Hastings, 716, 1271. McCue V. Ralston, 875. McCuUough V. Slioneman, 599. V. Walton, 142. McDade a. Washington, &c. Rid., 651. McDaniel v. Baca, 347, 351. McDaniels v. Robinson, 1174. McDermott v. Boston, 665, 666. ». Evening Journal. 296. V. Hannibal, &e. Rid., 665, 666. V. New York Cent. &c. Kid., 683. V. Third Ave. Rid., 469. McDonald «. Eagle, &c. Manuf. Co., 665, 671. V. Edgerton, 1172. V. Newark, 993. V. Snelling, 46, 413. V. Woodruff, 534. McDonnell v. Pittsfield, &c. Rid., 1229. McDonough v. Gilman, 422. V. Metropolitan Rid., 1121, MacDougall v. Central Rid,, 470. Macdougall v. Knight, 305. McElroy v. Albany, 743. McElwee v. BlackweU, 347, McEndre v. Piles, 22, Macey v. Childress, 503. McGarry v. Loomis, 586, 1014. McGeary v. Eastern Rld„ 580. McGce V. Boston Cordage Co,, 647. V. Overby, 521, McGill V. Compton, 859. V. District of Columbia, 743. II. Rowand, 1153. McGinnis v. Canada Southern Bridge, 675. McGinty v Keokuk, 1013, McGlothlin v. Madden, 609. McGoon V. Ankeny, 935. McGovern v New York, &c. Rid., 1043. McGowan v. Manifee, 277. V. Missouri Pac. Ry,, 422, McGrath v. New York, &c. Rid, (59 N, Y. 468), 1044. V. New York, &c. Rid, (63 N. Y. 522), 1044. V. New York, &c. Rid. (14 R. I. 357), 680. V. New York Cent. &c. Rid. (1 Thomp, & C. 243), 1024. McGregor v. Gregory, 285. McGrew v. Stone, 177, 447. 683 MCN INDEX TO THE CASES CITED. MAK McGuire v. Blair, 271. V. Galligan, 794. V. Grant, 906. V Hudson River Eld., 1043. V. Kireland, 491. V. Spence, 1010. Mc Henry v. Wallen, 783. Mellvaine v. Lantz, 804, 1238. Mcllvane v. Hilton, 1182. Mulntire v. Flaisted, 943. Mclntire Street Ry. v. Bolton, 1118. Mack V. Salem, 743. MirKay v. Irvine, 321. McKee v. Ingalls, 268. V. Owen, 1159. McKellar v. Detroit. 743, 758. McKenzie v. Northfield, 1018. McKeon v. See (51 N. Y. 300), 416. V. See (4 Rob. N. Y. 449), 426. MuEethan v. Cumberland, 952. Mackey v. Vicksburg, 570, 571, 854. McKim V. "White Hall Co., 938. McKimble v. Boston, &c. Rid. (139 Mass. 542), 1089, 1092. V. Boston, &c. Rid. (141 Mass. 463), 1101. McKinney i,-. Neil, 1129. V. Roberts, 267. McKnight v. lotra, &c. Rid. Const. Co., 665, 690. 1). Ratcliff, 839. McKone v. Michigan Cent. Rid., 1109. McKonkey v. Corning, &p. Eld., 1025. MuKown V. Furgason, 330. McKune v. California Southern Rid., 665, 668, 680. McLane v. Sharpe, 1129. McLauchlin v. Charlotte, &c Eld., 424. McLaughlin w. Cowley (127 Mass. 316), c>qQ i. Cowley (131 Mass. 70), 300. V. Russell, 309. V. Waite, 9.J6. McLean v. Blue Point Gravel Min. Co., 665, 666. Maclean v. Scripps, 257, 302. 306. McLeod V. Connecticut, &c. Eld., 1281. ». Jones, 819. McMahon «. Macy, 1185. V. New York, 977. ». Northern Cent. Ry., 586. . McMannus v. Lee, 522. McManus n. Crickett, 609, 614. McMaugh o. Burke, 909. McMillan i-- Birch, 271. V. Burlington, &c. Eld., 586. McMuUen v. Hoyt, 603. McMurry ti. Martin, 285. McNamara v. Shannon, 261, 266. McNaught V. Chicago, &c. Rid., 1229. McNay r. Stpatton, 206, 208. McNevins v. Lowe, 710. 684 Maeomber «. Nichols, 529, 948, 1008, 1018. V. Taunton, 975. Macon v. Franklin. 958. V. Hill, 990, 997. Macon, &c. Rid. v. Baber, 1229. V. Vaughn, 1229. McOsker v. Burrell, 1000. McPadden v. New York Cent. Eld., 1130. McPheeters v. Hannibal, &c. Eld., 441, 801. McPhillips V. New York, &c. Rid., 587. McQueen v. Central Branch Union Pau. Rid., 639. McQuesten v. Sanford, 1152. McQuilken v. Central Pac. Eld., 1101. McEickard v. Flint, 850. Macrow ». Great Western By., 1156. McTavish v. Carroll, 874. McTeer v. Lebow, 784. MaeuUar v. McKinley, 331, 333. Mc Williams v. Detroit Cent. Mills, 1038. Macy V. St. Paul, &c. Rid., 647, 665, 667. Madden v. Chesapeake, &c. Ey., 647, 665, 667. V. Miuneapolis, &c. Ry., 644. Maddox v. Cunningham, 152, 996. Madison ». Brown, 743, 758, 970. Madison, &c. Eld. v. TaSe, 140. Madras Ey. v. Carvatenagarum, 841. Maenner v. Carroll, 845. Magarity v. Wilmington, 743, 748. Magee v. Scott, 406. Maginnis v. New York Cent. &c. Eld., 1049. Magnay v. Burt, 211. Magnin v. Dinsmore, 1191. Maguinay o. Saudek, 379. Maguire v. Middlesex Eld., 1119. Mahady v. Bushwick Eld., 71, 991, 992. Mahan v. Union Depot, &c. Co., 112, 1025. Mahaney v. Penman, 783. Mahanoy v. Schelly, 743, 961. Maher v. Central Park, &c. Eld., 586, 1124. Mahlen v. Lake Shore, &c. Ey., 1043. Mahoney v. Belford, 254. - — V. Metropolitan Eld., 1146. Maicr v. Randolph, 609, 611. Main v. Hannibal, &c. Rid., 1025. ». North Eastern Rid., 758. Maine Cent. Rid., State v. (76 Maine 357), 1041. , State V. (77 Maine, 538), 1043. Mairs v. Manhattan Real Estate Assoc, 101, 996. Makinson v. Bawlinson, 402. MAB INDEX TO THE CASES CITED. MAT Malaoliy v. Soper, 347, 350. Malcom v. Spoor, 210. Mallory v. Pioneer Press, 129, 281. Malone v. Boston, &o. Rid , 1163. o. Burlington, &c. Ry., 665, 690. V. Hathaway, 665, 666. V. Hawley, 678. V. Morton, 678. 694. II. Stewart, 267. Maloy V. Wabash, &e. Ry., 1037. Malster, State v., 680. Mamer v. Lussem, 905, 912. Manchester v. Ericsson, 968. V. Hartford, 743, 758, 959. Manderschid v. Dubuque, 958. Mandeville v. Comstock, 891. Mangam v. Brooklyn Rid., 581. Mangan v. Atterton, 854. Mangold v. St. Louis, &i;. Rid., 819. Manliasset, The, 1140. Manitoba, The, 473. Mankato v. Willard, 958. Manly v. Wilmington, &c. Rid., 463. Mann v. Blancliard, 32U. V. Central Vermont Rid., 1147. V. Chicago, &c. Ry., 446, 1048. V. Delaware, &c. Canal, 653, 654, 606. V. Holbrook, 490. Manner v. Simpson, 281. Manners v. Haverhill, 743, 761. Manning v. AUiee, 327. V. Clement, 294. V. HoUenbeck, 1181. V. Lowell, 1000. V. MitL'hell, 210. V. Wasdale, 864. V Wells, 1171. Mansfield o. Moore, 962. Mantel v. Chicago, &c. Ry., 1046. Manvell v. Thomson, .381. . Manz V. St. Louis, &c. Ry., 811. Manzoni v. Douglas, 442. Mapes V. Weeks, 293. Maples V. New York, &c. Rid., 1077, 1095, 1096. Marble v. Worcester, 39, 456. Marbourg v. Smith, 244. March v. Walker, 1271. Mares v. Northern Pac. Rid., 470. Marion v. Chicago, &c. Ry., 614. Mark v. St. Paul, &c. Ry., 445, 1108. Markel v. Western Union Tel., 1212. Marks v. Baker, 257, 302, 305, 306. Maroney v. Old Colony, &c. Ry., 1072, 1079, 1081. Marpesia, The, 473. Marquette v. Chicago. &c. Rid., 1115. V. Cleary, 959, 960. Marr v. Western Union Tel., 1206. Marriott v. Stanley, 1002. Marsan v. French, 421. Marsh v. Billings, 33, 339. ». Chickering, 677. 1). Davison, 270. V. Ellsworth, 298, 300. V. Falker, 330. 0. Jones, 1225. V. Webber, 319. Marshall v. Blackshire, 1239. V. Grimes, 954. II. Hubbard, 37, 316, 317. V. Ipswich, 975. II. St. Louis, &c. Ry., 1068, 1081. V. Schricker, 665, 666. II. Wells, 1186. V. Welwood, 184, 832. V. Yoos, 773. V. York, &c. Ry., 64. Marshalsea Case, The, 132, 773, 783. Martensen v. Chicago, &c. Ry., 680. Martin u. Blattner, 858. V. Brooklyn, 748. V. Cahill, 587. V. Jordan, 319. V. Mason, 938. V. Minor, 199. V. Nutkin, 428. V. Ogden, 100. II. Payne, 380. V. Riddle, 898. ii. Roe, 813. V. Simpson, 821. V. Strong, 274. V. Waddell, 1254. V. Western Union Rid., 464. Martinez v. Gerber, 366. Martinsville v. Shirley, 819, 986. Marvin v. Muller, 644. Maryland Cent. Rid. ii. Neubeur, 1043. Marzettir v. Williams, 491. Mason's Case, 706. Mason v. Caesar, 4.30. 1). Hill (3 B. & Ad. 304), 892. V. Hill (5 B. & Ad. 1), 891. V. Keeling, 1234, 1238. ». Missouri Pac. Ry., 1229. V. Paynter, 796. V. Thompson. 1173. V. Warner, 1278. Massengale v. Western Union Tel., 1210. Masser v. Chicago, &c. Ry., 687, 1037. Massey v. Columbus, 1012. ti. Goyder, 910. Massiter II. Cooper, 1181. Masterson v. New York Cent. &c. Rid., 1070. Mathews v. Case, 665, 666. V. St. Paul, &e. Rid., 1229. Mathias, Reg. n., 990. Mathiason v. Mayer, 442. Matlock V. Hawkins, 950. Matson v. Calhoun, 805. 685 MEG INDEX TO THE CASES CITED. MET Matson v. Chicago, &c. Ry., 665, 690. Mattey v. Whittier Machine Co., 469, 1012. Matthew v. Ollerton, 196. Matthews v. Baraboo, 975. B. Fiestel, 943. u. Missouri Pac. Ey., 469, 558, 1002. V. Bice, 565. V. St. Louis Grain Elev., 1271, 1273. V. Warner, 146, 475. Mattison v. New York Cent Rid., 1161. Matts V. Hawkins, 914. Matze 1). New York Cent. &c. Rid., 60, 1048. Mauch Chunk o. Kline, 743, 978. Mauitby v. Leavenworth, 1013. Maund v. Monmouthshire Canal, 725. Mauritz v. New York, &c. Rid., 1160. Maury v. Talmadge, 1061. Marerick v. Eighth Avenue Rid., 1064, 1118. Max Morris, The, 473. Maxwell v. Bay City Bridge (41 Mich. 453), 953. V. Bay City Bridge (46 Mich. 278), 952. B. McAtee, 874. «. Mcllvoy, 1200. May V. Burdett, 1225, 1280. V. Princeton, 37. Mayer a. Schleichter, 267. V. Walter, 244. Mayfleld v. St. Louis, &c. Ry., 1229. Mayhew v. Burns, 1271. V. Sullivan Mining Co., 648, 665. Maynard v. Boston, &c. Rid., 1229. V. Esher, 92:3. V. Fireman's Fund Ins. Co., 728. Mayo a. Boston, &c. Rid., 1043, 1099. V. Springfield, 999. Mayton «. Texas, &c. By., 686. Mead v. Bunn, 337. V. Jack, 929. Meade w. Watson, 804. Meader v. Stone, 197. Meares v. Wilmington, 998. Mears v. Dole, 106. V. London, &c. Ry., 397. Mechanicsburg v. Meredith, 74.3. ' Medbury v. Watson, 327- Medcalfe v. Brooklyn, &c. Ins. Co., 240. Medina v. Perkins, 74.3. Meek v. Pennsylvania Co., 140. Meeker ». Van Rensselaer, 414, 4.30, 431. Meeks v. Southern Pac. Eld. (52 Cal. 602), 581. B. Southern Pac. Rid. (56 Cal. 513), 590. Meesel b. Lynn, &e. Rid;, 1119. Meibus v. Dodge, 686. Meier v. Pennsylvania Rid., 443, 1063. Mellor V. Spateman, 36. Melville v. Missouri River, &c. Rid., 673. Memphis, &c. Rid. v. Benson, 1091. V. Blakeney, 1229. V. HoUoway, 1160. K. Orr, 1229. V. Smith, 445, 1023. V. Thomas, 665, 680. V. Whitfield, 1086, 1100, 1101. Memphis, &c. Ry. v. Salinger, 1106. B. Stringfellow, 1101. Memphis Bell Telephone Co. v. Hnnt, 988. Menasha v. Portage, The, 959. Mendel v. Wheehng, 743, 746. Menham v. Edmonson, 522. Mennie v. Blake, 398. MenzeU v. Chicago, &c. By., 1160. Meracle v. Down, 1236. Mercer v. Jackson, 559, 671. B. Walmsley, 380. Merchants Desp. Transp. Co. v. Bolles, 1188. Merchants Union Barb Wire Co. v. Chicago, &c. Ry., 983. Meredith u. Reed, 150, 438, 439. Meres v. Chrisman, 1276. Merkle v. Otteusmeyer, 241. Merrill v. Claremont, 46, 629. v. Eastern Rid. (139 Mass. 238), 1092, 1271. V. Eastern Rid. (139 Mass. 262), 1273. V. Grinnell, 1162, 1156. B. Hampden, 968. B. North Yarmouth, 1013. V. Western Union TeL, 1207. Merrils v. Goodwin, 1250. Merritt ». Claghom, 1174. B. Earle, 166. B. Fitzgibbona, 111, 986. ». Johnson, 939. Merryweather v. Nixan, 56. Mersey Docks v. Gibbs, 115. Mershon b. Hobensavk, 1067. Mertz V. Detweiler, 712. Messenger v. Dennie (137 Mass. 197), 681. V. Dennie (141 Mass, 335), 586. ». Pate, 445, 1026. Messinger's Appeal, 8'JO, 892. MetcalfB. Alley, 488. V. Baker, 1070. Metropolitan Asylum Dist. v. Hill, 111, 116, 118, 126. Metropolitan Ry. ». Jackson, 442, 444. Metropolitan Saloon Om. Co. v. Haw- kins, 728. Metz B. Buffalo, &c. Eld., 599. MIL INDEX TO THE CASES CITED. MIX Metz V. Soule, 519. Metzler's Road, 869. Meyer v. Amidon, 330. V. Fromni, 997. , V. Lenicke, 1190. V. Metzler, 417. V. Midland Pacific Rid., 25. , State V. (2 Mo. Ap. 413), 330. , State V. (11 Vroom, 252), 244. Meyers v. Union Trust Co., 810. Michael v. Alestree, 622. Michael Davitt, The, 473. Michell V. AUestry, 1230. Michigan, &c. Rid. u. Heaton (31 Ind. 397, note), 1075. V. Heaton (37 Ind. 448), 1160. V. Oehm, 1154,1156. Michigan Cent. Rid. v. Carrow, 1151, 1155, 1156. V. Curtis, 1185. V. Dolan, 671. V. Gilbert, 655. V. Mineral Springs Manuf. Co., 1160. V. Smithson, 675. Michigan So. &c. Uld. ». Fisher, 801. Middleton v. Fowler, 1153. Mielenz v. Quasdorf, 286, 306. Mikesell v. Durkee, 984. Milan, The, 1070. Milburn v. Fowler, 994. V. Kansas City, &c. Rid., 1229. Milburne i'. Byrne, 371. Miles V. Atlantic, &c. Rid., 576, 854. V. James, 954. Miltbrd v. Holbrook, 521. Milhau V. Sharp, 980. Millar v. Thompson, 380. Millen v. Fawtrey (W. Jones, 131), 12.38. Miller v. Bristol, 870. V. Brown, ^2. V. Burcli, 411. V. Burlington, &c. Rid., 609. V. Butler, 255, 280, 283, 285. V. David, 270. V. Fenton, 56. V. Foley, 209. V. Johnson, 277. K. Martin, 177, 838. V. New York, 111, 117, 424, 425, 729, 953, 986. V. Parish, 267. V. Peeples, 1172. V. St. Louis, &c. Ry., 443, 805. V. Shaw, 523. V. Southwestern Rid., 1271. V. Spaulding, 1240. V. Union Pac. Ry. (17 Fed. Rep. 67), 665, 668. V. Union Pac. Ry. (2 McCrary, 87), 680. Miller ». Washburn, 867. V. Woodhead, 854. Milligan v. Wedge, 607. V. Wehinger, 801. Milliman v. New York, &c. Rid. (66 N. Y. 642), 1061, 1101. V. New York, &c. Rid. (6 Thomp. & C. 585 ; 4 Hun, 409), 513. Mills V. Armstrong, 451, 1070. V. Brooklyn, 746, 748. V, Graham, 565. V. Hall, 420. V. Shirley, 1182. V. Stark, 1224. V. Western Bank, 56. Milne's Appeal, 919. Milne v. Walker, 104, 1222. Milton V. Haden, 954. Milwaukee, &c. Ry. v. Arms, 439, 441, 814. V. Kellogg, 42, 455, 836. Miner v. Detroit Post, &c. Co., 302, 305. Ming V. Woolfolk, 37, 333. Minneapolis Mill Co. v. Wheeler, 518, 535. Minnis v. Johnson, 56. Minor v. Sharon, 414. Minter v. Pacific Rid., 1152. Mires v. Solebay, 622, 624, 626. Misch V. O'Hara, 1182. Mississippi, &c. Rid. ^. Ayres, 1277. V. Ward, 429. Mississippi Cent. Rid. v. Caruth, 819. V. Fort, 72. V. Mason, 442, 463, 819. Missouri Furnace Co. v. Abend, 677. Missouri Pac. Kid. u. Leggett, 1229. Missouri Pac. Ry v. (jallbreath, 651. V. Dwyer, 665. V. Humes, 810. V. McCIanahan, 1080. V. Mackey, 665. V. Peregoy, 651. V. Pierce, 445, 1026. B.Texas, &c. Ry. (31 Fed. Rep. 526), 1027. V. Texas, &c. Ry. (31 Fed. Rep. 527), 665. V. Weisen, 1036. V. Wilson, 1229. Missouri River Packet Co.w. Hannibal, &c. Rid., 445. Mitchell V. Cockburne, 56. V. Jenkins, 235. V. Milbank, 518. V. Milholland, 254, 257, 288. V. Robinson, 663, 665. V. Southwestern Rid., 244. V. Williams, 406. Mitten v. Faudrye (Popham, 161), 12.38. Mix V. McCoy, 512. 687 MOO INDEX TO THE CASES CITED. MOR Mizell V. Sims, 319. Mizner, State v., 594, 596. Moberly v. Kansas City, &c. Rv., 140, 1048. Mobile, State v., 429. Mobile, &c. Rid. o. Aslieraft, 1104. V. MeArtliur, 1100. V. Malone, 1229. V. Stroud, 1037. V. Tliomas, 644, 665, 669. V. Williams, 1229. Mobile Life Ins. Co. «. Brame, 1271. Mochler v. Shaftsbury, 969. Modoc, The, 47.3. Moebus I/. Hermann (38 Hun, 370), 586. V. Hermann (108 N. T. 349), 1015. MofEett V. Brewer, 430. , State v., 431. Mogul Steamship Co. v. McGregor, 355, 356. Mohawk, The, 9-35. Mohry v. Hoffman, 380. Moline Plow Co. o. Anderson, 677. Molloy V. New York Cent. &c. Bid., 613. Momence v. Kendall, 1013. Monell V. Golden, 319. Money o. Lower Vein Coal Co., 677. Monies v. Lynn, 966, 974. Monk V. New Utreclit, 51.3, 743, 746. Monmouth First Nat. Bank v. Dunbar, 938. Monongahela City v. Fischer, 459, 969, 974. Montezuma v. Minor, 416. Montfort o. Schmidt, 576, 1014. Montgomery v. Handy, 804. V. Koester, 1234, 12.36. ». Wright, 1013, 1019. Montgomery, &c. Rid. c. Boring, 1105. Montgomery, &c. Ry. v. Chambers, 470, 1024. w. Kolb, 1158. V. Thompson, 1086. Montross v. Bradsby, 241. Moody V. McClelland, 906, 910. V. Peterson, 471. Moomey ». Peak, 834. Moon V. Richmond, &c. Rid., 665, 667, . 6B9. Mooney v. Miller, 325. , State v., 194. Moore v. Appleton, 56, 535. V. Bowman, 938. V. Butler, 302, .303. !>. Chicago, &c. Rid., 140. V. Clay, 292. V. Clear Lake Waterworks, 896. w. Crose, 867. V. Des Moines, &c. Ry., 1064. V. Fitchburg Rid., 725, 1095. 688 Moore v. Gadsden (87 N. Y. 84), 962, 996. V. Gadsden (98 N. Y. 12), 743, 962. B.'Goedel, 838. V. Lambeth Waterworks, 988. V. Meagher, 254, 273, 274. V. Monroe, 594. V. Oceanic Steam NaT. Co., 858. V. Pennsylvania Rid., 587. V. Philadelphia, &c. Rid., 1037. V. Rawson, 922, 924. , Rex »., 421. B. Roberts, 969. V. Robinson, 929. V. Wabash, &c. Ry., 1024. V. White, 804. Moran v. Dawes, 379. V. NashviUe, &c. Rid., 1026. Mordaunt v. Mordaunt, 505. More V. Bennett, 309. V. Massini, 68. Morehouse v. Yeager, 330. Moreland v. Missouri Pac. Ry., 1229. Morey v. Fitzgerald, 162. Morgan v. Bliss, 22. w. Cox, 177, 498. V. Graham, 788. V. Hallowell, 743, 1261. u. Hughes, 226, 228, 247. ti. Livingston, 309. V. Pennsylvania Rid., 1048. V. Ravey, 1173. V. Ross, 379. V. Smith, 372. V. Thompson, 1271. V. "Vale of Neath Ry., 669. Morier v. St. Paul, &c. Ry.. 612. Moritz V. Garnhart, 376, 555.. Morley v. Pragnell, 412, 416, 426. Morrell v. Peck, 1012. Morris V. Barkley, 267. V. Bowers, 951. B. Chicago, &c. Ry. (45 Iowa, 29), 466. B. Chicago, &c. Ry. (65 Iowa, 727), 1281. , Commonwealth v., 545. V. Corson, 225. B Council Bluffs, 1000. V. Frakcr, 801. V. Halbert, 342. V. Lachman, 288. )j. Langdale, 270. B. New York Cent. &c.Rld., 1090. , People 8., 739. V. Phelps, 465. B. Piatt, 199, 202. B. Pugh, 406. B. St. Louis, &c. Ry., 1229. V. Scott, 145, 228. Morris, &c. Co. b. Ryerson, 481. MUL INDEX TO THE CASES CITED. MUB Morris, &c. Rid. v. Haslan, 1043. V. Newark, 111, 117. Morrison v. Bucksport, &c. Kid., 906. V. Erie Ry., 581, 1101. V. Koch, 325. V. Latimer, 909. ». Lawrence, 752. V. McDonald, 781. V. Marquardt, 924. 1>. Underwood, 1276. Morrissey v. Wiggins Kerry, 463. Morrow v. Wood, 594. Morse v. Crawford, 505, 507. V. Dearborn, 330. V. Fair Haven East, 426, 502. V. Nixon, 945. V. Sliaw, 325. V. Worcester, 743, 750. Mortin ti. Slioppe, 191. * Mnrton v. Metropolitan Life Ins. Co., 731. V. Moore, 984. Mosely v. Wilkinson, 712. Moses V. Bradley, 187. V. East Tennessee, &c. Rid., 1084. V. Pittsburgh, &e. Rid., 1008. V. St. Loais Sect. Dock Co., 958. Mosher v. St. Louis, &c. Ry., 1084. Moss B. Pacific Rid,, 653. V. Pardridge, 1234. Mostyn v. Fabrigas, 1277. Mote V. Chicago, &c. Rid , 1161. Motes V. Bates (74 Ala. 374), 872. V. Bates (80 Ala. :382), 242. Mott ». Corastock, 271. V. Mott, 989. V. Palmer, 813. Motz V. Detroit, 744. Moulton V. Aldrich, 142, 1018. V. Beecher, 248. V. Gage, 675. V. Lowe, 488. V. Moore, 859. V. Newburyport Water Co., 890. V. St. Paul, &c. Ry., 1160. Mowers v. Fethers (6 Lans. 112), 1173. 0. Fethers (61 N. Y. 34), 1168. Mowrey v. Walsh, 933. Mowry v. Whipple, 235, 239. Moyer i>. New York Cent. &c. Rid., 117, 898, 1000. Moyle V. Drake, 249. Moynihan v. Whidden, 586. Mu'dgett t>. Bay State Steamb. Co., 1159. Muehlhausen v. St. Louis Eld., 1124. Mugler V. Kansas, 92, 94. Mulcairns v. Janesville, 443, 665, 666, 678, 743, 763, 764, 1271. Muldoon V. Rickey, 244. Muldowney v. Illinois Cent. Kid. (89 Iowa, 615), 680. 44 Muldowney v. Illinois Cent. Ry. (86 Iowa, 462), 1108. Mulgrave v. Ogden, 446, 987. Mulhado ti. Brooklyn City Rid., 1119. MuUan w. Philadelphia, &c. Steams. Co., 665. Mullen V. Rutland, 965. V. St. John, 152, 415, 843, 996. 0. Steamship Co., 665. V. Sti-icker, 924. Muller V. District of Columbia, 1012. V. McKesson, 1234, 1235, 1286. V. Stone, 858.' MuUett V. Mason, 77. MuUiner v. Florence, 1181. Mulry V. Norton, 172. Mulvany v. Kennedy, 68. Mulvehall v. Millward, 380. Mulvehill v. Bates, 609, 612, 615. Mundy v. Wight, 288. Munger v. Baker, 146. V. Marshalltown, 1012. Munns v. Dupont, 239. Munroe v. Stickney, 30. 1'. Thomas, 954. Munsey v. Goodwin, 369. Munson v. Mallory, 990. Munter v. Bande, 192. Murchison «. Sergent, 1175. Murdock v. Boston, &c. Rid , 1079. Murgoo V. Cogswell, 937. Muriel v. Tracy, 354. Murphy v. Boston, &c. Rid. (133 Mass. 1211 853 v! Boston, &c. Rid. (88 N. Y. 146), 671. V. Chicago, &c. Kid., 470; V. Deane, 467, 470. V. Fond du Lac, 819. V. Hobbs, 235. V. Larson, 236. V. Martin, 211. V. New York, &e. Rid. (80 Conn. 184), 1271. w. New York Cent. &c. Eld. (11 Daly, 122), 680. V. New York Cent. &c. Eld. (44 Hun, 242), 665. V. Orr, 150, 1018. , People v., 706. V. Preston, 1234. V. Ramsey, 31. V. Union Ry., 1116, 1118. V. Walters, 211. V. Wilson, 202, 518, 525. Murray v. Boyne, 199. V. Burling, 404. V. Clarke, 1172. , Commonwealth v., 545. V. Long, 225, 242. V. Lovejoy, 519. V. Marshall, 1172. 689 NEE INDEX TO THE CASES CITED. NEW Murray «. Giclimond, &c. Rid., 576, 1051. V. Warner, 1190. V. Young, 602, 1225. Murtaugh v. St. Louis, 743, 764. Musgrore v. Catholic Churuli of St. Louis, 426. Musselman v. Marquis, 68. Musser v. Chase, 7U9. V. Maynard, 34. Mussey v. Cummings, 391. Mussumat Imam Bandi v. Hurgorind Ghose, 172. Muster v. Chicago, &c. By., 453, 683. Myers v. Cottrill, 1168, 1176. ». Dresden, 24. V. Dunn, 869. V. Gemmel, 924. V. Indianapolis &o. Ky., 442. V. St. Louis, 74.S, 751. Mynard v. Syracuse, &c. Rid., 1075, 1218. Mynning v. Detroit, &c. Rid., 1037. Nagel V. Missouri Pao. Ry., 518, 577, 578, 580, 8-54, 1271. Naish V. East India Co., 623. Naltner v. Dolan, 707. Nance ». Carolina Cent. Rid., 1101. Napier v. Bulvfinkle, 912, 924. Narehood v. Wilhelm, 391. Nash V. Douglass, 377. V. Kemp, 914. V. New England Mut. Life Ins. Co., 875. Nashville, v. Brown, 743. V. Nichol, 997. Nashville, &c. Rid. v. Carroll, 665. B. Comans, 111, 1229. V. Eakin, 1280. V. McDaniel, 665. V. Smith, 1271, 1273. V. Spray berry, 1281. V. Thomas, 1229. V. Wheless, 665, 666. Nashville, &c. Ry. v. Handman, 671. Nason v. West, 639, 650. Natchez, &c. Rid. v. Cook, 554, 558, 559, 1269. National Tube Works v. Bedell, 665, 667. Naylor v. Chicago; &c. Ry., 677. , Commonwealth »■, 1168. Neal V. Saunderson, 1186. Nebraska City o. Campbell, 743, 757. Nebraska Teleph., State v., 1213. Necker r. Harvey, 483. Neeb v. Hope, 305, 306, 308. Needham v. San Francisco, &c. Rid., 455, 460, 464, 1229. Needles v. Howard, 1176. 690 Neff V. Broom, 445, 851. V. Clute, 340. V. Paddock, 996. ». Webster, 321. Neier v. Missouri Pac. Ry., 1025. Neils. Hughes, 665. V. Hurst, 814. ». Mitchell, 1043. W.Reese, 607. V. Statham, 1100. V. Toulme, 445, 1025. New River Co. v. Johnson, 117. New Salem v. Eagle Mill, 424. New World, The, u. King, 698. New York K. Bailey, 440, 606, 840. , People v., 993. r. Starin, 954. New York, &c. Bid. v. Bell, 669. , Commonwealth »., 610. V. Steinbrenner, 1070. New York, &c. Ry. v. Haring, 733, 1097. ». Randel, 438. New York, &c. Tel. v. Dryburg, 1212. New York Cent. Bid. v. Loekwood, 1075, 1076, 1160. New York Cent. &c. Rid. v. Fraloff, 1156, 1160. Newark Coal Co. v. Upson, 243, 731. NOR INDEX TO THE CASES CITED. O'DO Newbold v. Bradstreet, 305. Newburgh, &c.. Turnpike v. Miller, 954. Newell V. Randall, 325. V. Eyan, 653. V. Whitcher, 191. Newliouse v. Miller, 459. Newkirk i'. Dalton, 397. V. Sabler, 162. Newman v. Vickeburg, &c. Eld., 1229. Newport v. Taylor, 954. Newsora v. Anderson, 101, 819. Newson v. New York, &u. Rid., 445. Newton ». Cubitt, 954. V. Pope, 179, 629. V. Weaver, 229. Nichol V. Martyn, 371. NichoIIs V. More, 74. Nichols V. Alliens, 531, 976. V. Chicago, &c. Ey., 683. V. Dubuque, &c. Ry., 1 101. 1: Halliday, 1182. V. Luce, 872. r. Marsland, 841. V. Middlesex Rid., 1122. 1: Minneapolis (30 Minn. 545), 743, 960. V. Minneapolis (33 Minn. 430), 965, 988, 1013. V. Valentine, 22. V. Walker, 783. Nicholson v. Erie Ry., 1037. Nickleson v. Stryker, 380. Nicks V. Marshall, 1013. Nidever v. Hall, 277. Niehaus v. Shepherd, 172. Nieto V. Clark, 1068. Nininger v. Norwood, 898. Nissen v. Missouri Rid., 1122. Nitroglycerine Case, 177,436, 439, 445. Noble V. Adams, 933. V. Holmes, 792. 1'. Milliken, 1179. V. St. Albans, 743, 1000. Nobles ville, &c. Gravel Eoad v. Gause, 956. Noeninger v. Vogt, 271. Noice V. Brown, 371. Nolan V. Brooklyn City, &c. Eld., 1106, 1119. V. King, 986. V. New York, &c. Rid., 442, 588, 590. Noonan v. Orton, 304. V. Stillwater, 743, 758. Norbury v. Kitchin, 890. Norcross v. Norcross, 1167, 1173, 1177. V. Nunan, 792. V. Thorns, 411. Norfolk, &c. Eld. v. Ferguson, 1106. V. Ormsby, 439, 681, 583, 686. Norris v. Kohler, 1271. V. Palmer, 358. Norris v. Staps, 76, 629, 1072. North, &c. Ferry v. Barker, 954. North Chicago Rolling Mill v. Johnson, 665, 669. North Chicago Rolling Mills v. Benson, 665. North Pa. Rid. v: Commercial Bank, 1217. V. Heileman, 1043. V. Mahoney, 521, 583, 586. North Vernon v. Voegler (89 Ind. 77), 743, 761. V. Voegler (103 Ind. 314), 997. Northcote v. Duke, 938. Northern Cent. Ry. <,. Husson, 639. V. Scholl, 1278. I). State, 463, 1271. Northern Pac. Rid. v. Herbert, 647, G65, 690. Northrop v. Burrows, 431. Northumberland v. Byrt, 345. Northwestern Packet Co. v. McCue, 665. Norton v. Huxley, 820. V. Ittner, 37, 586. V. Scholefield, 412. V. Sewall, 702. Norvell v. Gray, 819. V. Thompson, 819. Norway Plains Co. v. Boston, &o. Rid., 1186". Nowell V. Wright, 952. Nowlan v. Cain, 315. Noyes v. Colby, 819, 943, 1220. V. Shepherd, 150, 501. Nudd, State v., 948. Nuestra Senora de Eegla, The, 168. Nugent V. Wann, 876. Nunn V. Georgia Eld., 1068. Nye V. Merriam, 318. Oakes v. Wood, 824. O'Barr v. Alexander, 705. Oberlander v. Spiess, 328, 333. O'Brien v. Barry, 247. V. Boston, &c. Eld., 686. V. Bryant, 288. V. McGIinchy, 463. V. New York Cent. &c. Eld., 1097. Occum Co. V. Spragne, &c. Co., 22. Ocean Grove Camp Meeting v. Asbnry Park, 879. Ochsenbein v. Shapley, 611, 1012. O'Connor v. Adams, 647, 651. V. Boston, &c. Eld., 586. V. Fond du'Lac, &c. Ey., 898. i). Roberts, 666. Odell V. Solomon, 859. O'Donnell v. Allegheny Valley Eld., 683, 1106. O'Donoghue v. Corby, 406. 691 OBM INDEX TO THE CASES CITED. PAI O'Flaherty ». Union Ev., 578. Ofstie V. Kelly, 430. Ogbom V. Francis, 378, 380. Ogburn v. Connor, 898. Ogden V. Claycomb, 199. V. Riley, 277. O'Hagan v. DUlon, 513. O'Harra v. Portland, 743. Ohio, &c. Rid. V. Brubaker, 800. V. Shanefelt, 736, 1029. V. Tindall, 545, 554. Ohio, &c. Ry. v. Applewhite, 1081. V. Clutter, 1029. II. Cole, 1229. V. Jones, 1229. V. Selby, 1076, 1160. ». Stratton, 678, 1100. Oil V. Rowley, 801. Oil City, &c. Bridge o. Jackson, 576, 1148. Oil City Gas Co. v. Robinson, 455, 459. Oil Creek, &c. Ry. v. Clark, 1082. Old Colony, &c. Rid., Commonwealth v., 958. Oldham v. Bentley, 315. ». Oldham, 418. O'Linda v. Lothrop, 990. Olive V. Whitney Marble Co., 1271. OUver V. Hook, 872. V. McClellan, 565. V, Worcester, 755. Olmstead v. Partridge, 236. Olney v. Wharf, 983. Olsen V. Dpsahl, 522. Olson V. Clyde, 665. V. Crossman, 1179. V. McMuUen, 678. V. Neal, 242. V. St. Paul, &c. Ry., 665. Omaha Horse Ry. v. Doolittle, 466. Omelvany v. Jaggers, 890. Omslaer v. Philadelphia Co., 955. Onderdonk v. Smith, 955. Oneil V. Harkins, 905, 906. O'Peil V. Detroit, 977. — ^ ». St. Louis, &c. Ry., 678. O'Neill V. Keokuk, &c. Ry., 652, 683. Onslow V. Home, 259. Oppenheim b. White Lion Hotel, 1175. Oppenheimer v. United States Express, 1188. Opsahl V. Judd, 64. Orange, &c. Horse Rid. «. Ward, 469. Orange, &e. Rid. v. Miles, 1229. Orange Bank v. Brown (3 Wend. 158), 1057. Orange County Bank v. Brown (9 Wend. 85), 1151, 1156. Orford v. Richardson, 1254. Oriflamme, The, 1064. Orme v. Richmond, 743, 750, 992, 997. Ormond v. Central Iowa Ry., 1030. 692 Ormond v. Holland, 657. Ormrod v. Huth, 330. Ormsbee w. Boston, &c. Eld., 1041. OrndorS v. Adams Bxpress, 1191. O'Rourke n. Chicago, &c. Ry., 466, 1159. Orr V. Skofield, 270. Ortman o. Dixon, 891. Osage City v. Brown, 1012, 1013. Osborn v. Allen, 545. V. GiUett, 1268. V. Veitch, 191, 194. V. Wise, 873. Osborne v. Hamilton, 743, 1012. V. London, &o. Ry., 1013. V. Morgan (130 Mass. 102), 687. V. Morgan (137 Mass. 1), 628, 665, 687. V. Warren, 819. Osgood V. Thurston, 783. O'Shaughnessy v. Baxter, 795. O'Shea v. Kirker, 518. Osterhout v. Roberts, 399. Ostrander v. Brown, 1186. Ostrom V. Calkins, 270. Otis V. Raymond, 318, 332. Otsego, People v., 748. Ottawa Gas-light, &c. Co. v. Thompson, 412, 418, 426. Over V. Hildebrand, 305. V. Schiffling, 304. Orerstreet ». Brown, 783. Overton, State v., 1082. Owen t>. Chicago, 1013. V. Knight, 397. V. New York Cent. Eld., 680. Owens V. Hannibal, &c. Eld., 1229. V. Lewis, 50. V. Eichmond, &c. Eld., 470. Owings V. Jones, 112, 132, 137. Owsley V. Montgomery, &c. Eld., 731. Oxford V. Peter, 610. Oxley V. Watts, 391, 1228. Oyshterbank v. Gardner, 443. Oystead v. Shed, 816. Ozbum B. Adams, 1226. Ozier v. Hinesburgh, 964. Pacific Eld. v. Houts, 468. Paddock v. Strobridge, 319, 3.32. Paducah, &c. Rid. v. Hoehl, 1026. Pafif w. Slack, 929. Page V. Cushing, 210. V. De Puy, 394. V. Hodgdon, 802. V. Hodge, 633. V. Hollingsworth, 801. V. Merwln, 266, 267. V. North Carolina Eld., 1229. Pagham, Rex v., 22. Pain 0. Patrick, 950. PAS INDEX TO THE CASES CITED. PEG Palmer v. Charlotte, &o. Eld., 1078 1096. V. Concord, 305. V. DeariDg, 847, 851. V. Denver, &c. Ry., 678. V. Detroit, &c. Rid., 469, 1043. V. Fletcher, 923. V. Grand Junction Ry., 1185. V. Harrison, 676. V. Lincoln, 604. V. Missouri Pac. Ry., 1028, 1030. V. Richardson, 225. V. Silverthorn, 991. V. Waddell, 899. Pangburn v. Bull, 225, 227, 242, 245. Panton b. Holland, 98, 910, 913. B. Williams, 240. Pantzar v. Tilly Foster Mining Co., 648,650. ' Fi^pineau, Eex v., 426. Papworth v. Milwaukee, 960. Parcell v. Grosser, 859. Paris, &c Rid. o. MuUins, 1229. Parish b. Eden, 580, 1146. Park B. Chicago, &c. Ry., 992. Parker v. Adams, 1016. V. Armstrong, 33, 328, 330. B. Barnard, 132, 141, 163, 850. V. Farley, 248. V. Foote, 864, 924. 1'. Frambes, 244. V. Huntington, 353, 354. B. Macon, 743, 758. V. Nashua, 743, 1000. B. Rutland, 743, 766. V. Union Woollen Co., 1021. V. Wilmington, &c. Rid., 22, 38. Parkes v. Prescott, 525. Parkhill v. Brighton, 1013. Parkhurst v. Johnson, 651. B. Ketchum, 293. V. Masteller, 229. Parkins v. Scott, 532. Parks V. Alta, &e. Tel., 1207. B. Bishop, 869. B. Newburyport, 889, 898, 903. Parkyns v. Preist, 1008. ParU B. Reed, 239. Parmelee b. Lowitz, 1185, 1188. Parmer v. Anderson, 265. Parmiter v. Coupland, 308. Parmlee v. Adolph, 330. Parrot b. Cincinnati, &c. Rid., 116. Parrott v. Floyd, 428, 430. Parsons v. Harper, 490. V. Johnson, 863. Partenheimer v. Van Order, 943. Partlow B. Haggarty, 1234. Partridge v. Gilbert, 919. V. Scott, 907. Pasley v. Freeman, 77, 315, 320, 325. Passenger Rid. v. Young, 609, 1119. Passmore b. Western Union Tel., 1209. Pastene v. Adams, 152, 529. Patch B. Covington, 746. Pate B. Henry, 954. Pater b. Baker, 348. Patrick v. Pote, 459'. Patten b. Gurney, 320, 356, 525. B. Johnson, 1161. B. Rea, 609. B. Wiggin, 710. Patterson b. Detroit, &c. Eld.,'950. B. Nutter, 596. V. Wabash, &c. Ry., 1068, 1111. V. Wilkinson, 267. Pattison v. Jones, 127. Patton V. St. Louis, &c. Ry., 1028, 1030. V. Western N. C. Rid., 665, 668. Paul B. Carver, 1001. V. Frazier, 57. B. Slason, 31. ■ V. Summerhayes, 1248. Paulitsch V. New York Cent. &c. Eld., 1099. Paulmier v. Erie Eld., 632, 684. Paxton B. Boyer, 177, 202. Payne . Marion, 448. V. Miller, 1155. V. Morel, 1045. V. Roney, 125, 445, 683. ». Roy, 1113. V. Weddle, 240, 731. V. Whitlock, 453, 835. Pennsylvania Rid. i.-. Ackerman, 1043. 0. Angel, 993. V. Barnett, 1026. V. Beale, 1043. V. Butler, 1075. V. Coon, 1049. V. Fries, 437. 1). Garvey, 469, 1043. V. Goodman, 1147. V. Hope, 47, 1029. V. Kerr, 836. V. McCloskey, 1075. 0. Matthews, 438. !;. Miller, 890. u. Riblet, 810. V. Wachter, 658, 680. V. Weber, 455. Penrose v. Curren, 567. Penton v. Robart, 813. People's Passenger Ry. v. Green, 1119. Peoria v. Simpson, 962. Peoria, &c. Rid. v. Barton, 811, 1229. V. Dugan, 1229. Peoria, &c. By. v. Miller, 471. V. Reed, 442. - Perkins v. Chicago, &c. Rid., 1081. V. Lawrence, 743, 750. V. Mossman, 1234 694 Perkins v. Oxford, 743, 960. V. Smith (Say. 40), 622, 628. V. Smith (1 Wils. 328), 624. Perley v. Chandler, 952. V. Eastern Rid., 835, 836. V. New York Cent. &c. Rid., 1154. Pernam v. Wead, 872. Perren v. Bud, 489. Perrin v. Oliver, 954. Perrine v. Chesapeake, &c Canal, 719. Ferring v. Harris, 134. Perry ». Breed, 288. V. Carr, 817. V. Dubnque, &c. Ry., 812. V. Fitzhowe, 430, 431. 17. House of Refuge, 743, 76a V. New Orleans, &c. Rid., 980. V. Ricketts, 644. Peschel v. Chicago, &c Ry., 649, 665, 666. Peters v. Fergus Falls, 743, 764. Peterson v. Haffner. 202. V. Sentman, 264. Pettigrew v. Bamum, 1176. V. Evansville, 898. Pettijohn v. Williams, 327. PettingUl ». Porter (3 Allen, 349), 867. V. Porter (8 Allen, 1), 872. Petty V. Hannibal, &c. Rid., 1043. Peverly v. Boston, 1140. Peyser v. Metropolitan Elev. By., 981. 991. Peyton v. London, 910. Peytona, The, 1186. Pfeiffer v. Grossman, 819. V. Ringler, 680. Pfister V. Central Pac. Rid., 1156. Pfluger V. Hocken, 919. Phelps B. London, &c. Ry., 1156. V. Nowlen, 883. V. Sill, 782. Phifer v. Cox, 990. Philadelphia, &c. Rid. v. Anderson, 170, 1103. V. Boyer, 1271. B. Carr, 1046. —^ V. Derby, 610, 1068, 1094. — '— V. Hendrickson, 1030. V. Hoeflich, 1097. V. Hogeland, 1070. 0. Hummell. 1036, 1048. B. Keenan, 640. V. Kerr, 104, 652. V. Larkin, 1115. V. Layer, 586. 1\ Long, 580. B. Quigley, 142, 306, 728, 733, 814. B. Rice, 1078, 1095. V. Schultz, 1028, 1030. V. State, 686. ». Stebbing, 445, 1025. PIT INDEX TO THE CASES CITED. PLU Philadelphia, &o. Ey. v. Hassard, 586, 1124. Philadelphia Iron, &c. Co. v. Davis, 639. Philbrick v. Foster, 200. V. Niles, 469. Phillibrown v. Ryland, 22. PhllUps c. Bordman, 914, 917, 919. V. Bowers, 873. 1-. Chicago, &c. Ey., 665, 686, 1026. V. Eyre, 1280. V. Hoeffer, 270. r. Hoyle, 379. V. JanseD, 270. B. Kelly, 187. ». Missouri Pac. Ey., 810. V. Oystee, 804. V. Rensselaer, &c. Eld., 1099. V. Trull, 209. Philo i?. Ulinois Cent Eld., 690. Philpott V. Kelley, 406. V. Missouri Pac. Eld., 1271. Phinney r. Hubbard, 319. Physicians College v. Eose, 716. Picard v. McCormick, 327. Pickens v. Diecker, 694. Pickering v. Orange, 1225. Pickett V. Atlas Steams. Co., 665. Pier I'. George, 146, 329. V. Hanmore, 146, 329. Kerce v. Benjamin, 397. V. Keator, 863. V. Lemon, 918. V. Millay, 546. V. Tripp, 733, 743, 765. V. Whitcomb, 150, 851. Pierre v. Fernald, 924. Pierret v. MoUcr, 1-237. Pierson v. Post, 1251. Piggot V. Eastern Counties Ey., 1027. Pigott V. Lilly, 125. Pike V. Hanson, 206. V. Megonn, 784, 789. V. State. 1261. Pillsbury v. Moore, 892. Pinckney v. Western Union Tel., 1206. Pingree v. Leyland, 677. Pinkerton .-. Woodward, 1165, 1171. Pinney v. Berry, 422. Piollet V. Simmers. 64, 991. Piper V. Pearson, 783. . State v.. 819. Pippen V. Wilmington, &c. Eld., 1229. Pippet r. Heam, 228. Pippin V. Sheppard, 702. Piquegno v. Chicago, &e. Ey., 639. Pitman v. Gale. 802. Pitt V. Donovan, 347, 348. V. Talden, 704. Pittock V. O'Niell, 308. Pittsburg V. Clarksville, 952. Pittsburg, &c. Eld. v. Andrews, 1107. Pittsburg, &o. Eld. v. Pillow, 1061, 1065. V. Slusser, 734. Pittsburg, &c. Ey. v. Bumstead, 1018. V. Caldwell, 1124. 1'. Donahue, 614. V. Hennigh, 1078, 1096. !'. Pearson, 680. V. Sniiili, 802. Pittsburgh, &c. Eld. ;•. Brown, 811. V.Bruce, 989, 1001. I'. Evans, 442. K. Jones, 71. r. Nelson, 1029. V. Noel, 476. , State i>., 1271. V. Van Houten, 1091. Pittsburgh, &c. Ey. v. Adams, 678. I'. Bingham, 853, 1109. V. Bowyer, 1229. V. Conn, 455. V. Hackney, 811. V. Henderson, 652, 654, 656. V. Hixon (79 Ind. Ill), 1029. 103O. V. Hixon (110 Ind. 225J, 443. V. Jones, 1030. V. Kirk, 609, 665. V. Lewis, 666. V. McMillan, 1229. V. Martin, 1089, 1108. V. Nuznm, 1077, 1081. V. Eanney, 639, 665, 666. V. Shannon, 471. V. Smith, 1229. V. Sponier,* 1002. V. Staley, 43. B. Yundt, 1044, 1049. Pittsburgh So. Ey. b. Taylor, 1013. Pitzner b. Shinnick, 807. Pixley V. Clark, 840. Place V. Minster, 357, 358. Plant B. Condit, 319. Plath B. BraunsdorfE, 241. Piatt B. Brown, 817. B. Jolmson, 100. Platte, &c. Ditch Co. v. Anderson, 71. Plattsmouth b. Mitchell, 959, 960. Platz i>. Cohoes, 64. Player v. Burlington, &c. Ey., 1099. Playford «. United Kingdom Elee. Tel., 1212. Pleasants v. North Beach, &c. Eld., 1118. B. Ealeigh, &c. Air-line Eld., 644. Plecker v. Eliodes, 952. Plimpton B. Converse, 869. Plott V. Chicago, &c. Ey., 1081. Plumer b. Harper, 422. Plumleigh v. Dawson, 890. Plumley v. Birge, 586. Plummer v. Eastern Eld., 1043. V. State, 202. Plunkett B. Gillmore, 271. 695 POW INDEX TO THE CASES CITED. PUL Focopson Boad, 869. Fogel i>. Meilke, 619. Poirier v. Carroll, 653. Poland V. Earhart, 552. Polaria, The, 927. Polhill V. Walter, 316, 328, 330. Polk V. Lane, 804, 805. Polkinliom v. Wright, 824. Pollard !-. Barnes, 864. V. Evans, 220, 353. V. Lyon, 261, 267, 273. V. Wohurn, 743, 758, 1012. Pollock V. Hastings, 262. V. Landis, 1181, 1182. V. Louisville, 743, 761. Polly V MoCall, 892. Pomeroy v. Donaldson, 954. Pomfrey v. Saratoga Springs, 743, 758, 978. Pond V. Metropolitan Elev. Ky., 922. Pontiac ». Carter, 746. Pool ». Alger, 1226. V. Chicago, &c. Ry. (53 Wis. 657), 1106. V. Chicago, &c. Ey. (56 Wis. 227), 665, 683. Poole V. Huskinson, 948. Pope V. Devereux, 869. V. Welsh, 293. Fopplewell v. Hodkinson, 882. V. Pierce, 1225. Port ». Williams, 334. Porter v. Anheuser-Busch Brewing As- soc, 854. V. Chicago, &c. Ry., 613. u. Durham, 892. . — -V. Haight, 786. V. Hildebrand, 1156. V. North Missouri Rid., 980. V. Southern Express, 1191. ». Thomas, 624. w. White, 225. Portland v. Atlantic, &e. Rid., 535. Portland, &c. Rid. v. Deering, 988. Posey V. James, 172. Post I). Boston, 74-3, 758. V. Chicago, &c. Rid., 1077. V. Jones, 163. V Koch, 1139. !). Pearsall. 868. V. Stockwell, 848. Potter V Castleton, 972. V. Faulkner, 686. V. Menasha, 71, 1002. V. Wilmington, &c. Rid., 1101. Potts I'. Imlay, 244. Poulin V. Broadway, &c Rid., 1120. Poulton V London, &c. Ry., 609, 733. Pound V Port Huron, &c. Ry., 811. V. Turck, 953, 955. Powell V. Bunger, 71, 960. , Commonwealth v., 1262. 696 Powell V. Deveney, 39, 573, 610. B.Kane, 299. V. Mills, 964. V. Missouri Pac. Ry., 1025, 1043. V. Myers, 1152. V. Pittsburg, &c. Rid., 1084. V. Salisbury, 806. Power V. Athens, 954. , Commonwealth v., 1072. Powers V. Bassford, 401. V. Harlow, 864. V. Kindt, 807. B. New York, &c. Rid., 680. V. Presgroves, 292. Powles V. Hider, 612. Pozzi V. Shipton, 74. Pratt B. Bryant, 938. V. Gardner, 781. V. Page, 226, 247. V. Pioneer Press, 281. Pratt Coal, &c. Co. v. Davis, 1046. Pray ». Jersey City, 743, 749. Prerogative Case, 126, 161, 17-3, 822. Presbyterian Society v. Anbum, &c. Rid., 982. Prescott V. Knowles, 1240. V. Norris, 341. V. Wright, 397. Preston v. Cooper, 225, 227. B. Knight, 699. B. Witherspoon, 938. Pretty v. Bickmore, 858. Prettyman b. Shockley, 273. Price V. Hartshorn, 163, 1152. B. Harwood, 213. ». Houston Direct Nav. Co., 671. V. Powell, 1186. B. Whitely, 280, 282, 310. Prideaux v. Mineral Point, 1070. Priest B. Nichols, 461. Priester b. Augley, 609. Priestley v. Fowler, 645. Prime B. Twenty-third Street Rid., 993. Prince b. International, &c. Ry., 1092. Prince George's County v. Burgess^ 743, 1012, 1013. Princeton b. Gieske, 997. Privateer, The, 927. Probst V. Delamater, 655. Proctor B. Adams, 163. B. Hannibal, &c. Rid., 1271. V. Lewiston, 958. B. Nicholson, 1181. B. Webster, 772. B. Wilmington, &c. Rid., 1229. Profilet B. Hall, 1175. Prouty 8. BeU, 958. Pucket B. St. Louis, &c.Ey., 1229. Pugh B. Griffith, 816. B. Wheeler, 890. Pulcifer b. Page, 939. RAM INDEX TO THE CASES CITED. BEA Fallen v. Bell, 406. c. GUdden, 231, 232. Pullman Palace Car v. Eeed, 1080, 1114. o. Smith, 1162. Purdy V. Rochester Printing Co., 308. Purple V. Greenfield, 1008. Pursell V. Home, 192. Puryear v. Clements, 873. Putnam o. Broadway, &c. Eld., 1061, 1118. V. Payne, 413. . Pyer o. Carter, 864. Pyle V. Richards, 889. Pyne v. Dor, 397. Pzolla V. Michigan Cent. Rid., 1041. Quarman v. Burnett, 599, 1145. • Quartz Hill Grold Mining Co. u. Eyre, 222, 227, 245. Queen v. Wemwag, 938. Quigley v. Central Pac. Rid., 1095. V. McKee, 262. Quimby v. Woodbury, 459, 1240. Quincy v. Jones, 743, 751, 910, 911. Qnincy Coal Co. v. Hood, 650, 1271, 1272. Quinlan v. Sixth Ave. Rid., 22, 25, 182, 1118. Quinn v. Donovan, 471. V. Higgins, 710. V. Illinois Cent. Eld., 471, 1091. V. New Jersey Lighterage Co., 663, 665. V. Power, 611, 1271. V. Scott, 288. Quintard v. Bishop, 875. R. E. Lee, The, 1159. Race r. Ward, 864, SfiO. EadclifE V. Brooklyn, 111, 117, 120, 997. Radcliffe v. St. Ix)uis, &c. By., 811. Radley v. London, &c. Ey., 46-S. Eafferty v. Missouri Pac. Ey., 112, 1026. Rahn v. Singer Mannf. Co., 612. Raiford v. Mississippi, &c. Eld., 801, 1229. Raikes v. Townsend, 412, 431. Rail V. Potts, 786. Railroad v. Gladmon, 586. V. Jones, 436. r. Lock wood, 441. V. Stout, 586. Railroad Bridge, United States v., 958 Raleigh, &c. Rid. v. Wicker, 898. Ramaley v. I«land, 1179. Bamsdale v. Foots, 896. Eamsden v. Boston, &o. Eld., 1068, 1095. Ramsey v. Arrott, 236. t'. Riley, 316, 502. V. Rusliville, &c. Gravel Road, 442. Eand o. Merchants Despatch Transp. Co., 1160. V. Wilber, 426, 428. Randall v. Baltimore, &c. Eld., 665, 671. V. Brigham, 780, 781, 782, 783. V. Cheshire Turnpike, 952. , Commonwealth v., 596. 17. Connecticut Eiver Eld., 1043. V. Conway, 958. V. Eastern Eld., 974. V. Raper, 77. Randle v. Pacific Eld., 426. Eandlette v. Judkins, 502. Eandolph v. Hannibal, &c. Ey., 1068. Ranger v. Great Western Ey., 730. Bank ». Bank, 401. Bankin v. Merchants, &c. Transp. Co., 665. V. SchaeflTer, 700. Ransier u. Minneapolis, &c. Ry., 39, 683. Ransom v. Chicago, &c. Ry., 445, 1026. Eapson v. Cubitt, 599, 607. Earidon v. Central Iowa, Ry., 1229. Basmussen v. Chicago, &c. By., 678. EatcliflTe v. Burton, 816. Eathbone v. Union Eld., 1122. Eathbun v. Emigh, 271. Eathman v. Norenberg, 958. Eavenga v. Mackintosh, 236. Bawls V. Deshler, 608. Eawson v. Dole, 73, 75. V. Pennsylvania Eld., 1160. Bay V. Burbank, 716. V. Law, 227. 1). Sweeney, 924. V. Tubbs, 405. Raymond v. BurUngton, &c. Ry., 470. o. Fish, 743, 768. Rayner v. Mitchell, 612. Razor v. St. Louis, &c. By., 811. Bea V. Harrington, 254, 310. ti. Tucker, 51. Bead v. Ambridge, 277. V. Amidon, 1171. V. Boston, &e. Eld., 62. V. Coker, 191. V. Edwards 1234. V. Morse, 834. !■. Patterson, 706. V. Pennsylvania Eld., 447, 834. Readhead v. Midland Ry., 1063. Reading, &o. Eld. v. Latshaw, 184. V. Eitchie, 1043, 1049. Beading Iron Works v. Devine, 665, 680. 697 EIC INDEX TO THE CASES CITED. BOB Eeatn v. Pittsburgh, &c. Eld., 1271, V£1Z. Rearick v. Wilcox, 310. Reavely v. Mainwaring, 369. Keddie o. Scoolt, 57, 379. Redpath v. Western- Union Tel., 1209. Red way v. MuAndrew, 243. Reece v. Righy, 704. V. Taylor, 199. Reed v. Allegheny City, 602, 606. , Commonwealth i>., 425. 8. Home Savings Bank, 730, 731. e. Minneapolis St. Ry., 578, 579. V. New York Cent. Rid., 1104. V. Northfield. 502. !). Taylor, 243. V. United States Express, 1191. Reese v. Biddle, 665, 666. Reese River, &c. Co. v. Smith, 330. Reget V. Bell, 1272. Reid V. Kirk, 813. ' V. MoLendon, 299. Reinhard v. New York, 743. Reiper v. Nichols, 47, 455. Reitan v. Goebel, 267. Remele v. Donahue, 1240. Renfro v. Chicago, &e. Ry., 665, 671. Rennyson's Appeal, 923. Renshaw v. Bean, 924. Requa v. Rochester, 965, 969. Revis V. Smith, 299. Rexford v. State, 749. Reynolds v. Clarke, 819. V. French, 333. V. Hanrahan, 622, 1017. 1). Kennedy, 223. V. Ross, 264. V. Shreveport, 748. V. Shuler, 403. V. Texas, &c. Ry., 1086. Rhea ». Forsyth, 867. V. White, 56. Rheem v. Naugatuck Wheel Co., 840. Rhinehart v. Whitehead, 52.S. Rhoades v. Chicago, &c. Ry., 1043. Rhoda V. Annis, 325. Rhodes v. Cleveland, 997. V. Dunbar, 419. V. Naglee, 275. Rice V. Beyer, 565. V. Coolidge, 298. V. Evansville, 74.3, 746. V. Kansas Pac. Ry., 1160. V. King Philip Mills, 645. V. Nagle, 808. V. Worcester, 989. Rich V. Basterfield, 412. V. Crandall, 600. V. Kneeland, 74. V. Pierpont, 710. Richards v. Cincinnati, 997. V. Fuqua, 954. 698 Richards v. New York, 743. , People v., 869. , Rex B., 948. V. Rose, 911, 916. V. Sperry, 1228. V. Symons, 929. V. Westcott, 1185. Richardson v. Adams, 826. V. Fonts, 379. ». Hine, 199. V. New York Cent. Rid., 1049. ». Noble, 327. V. Pacific Mail Steams. Co., 683. V. Pond, 874, 924. !7. Pulver, 519. V. Tobey, 916. B. Zuntz, 199. Richart b. Scott, 906, 912. Richmond v. Smith, 1173. Richmond, &c. Rid. v. Asliby, 1095. B. Medley, 1029, 1030. Richmond Turnpike v. Vanderbilt, 614. Rioker b. Freeman, 39, 193. Rjcketts, United States v., 623. Riddle b. Driver, 939. B. Poorman, 705. V. Proprietors of Locks, 73, 724, 743. Rider v. Smith, 864, 873. B. White, 1284. Riding v. Smith, 271. Riest V. Goshen, 1012. Rigby B. Bennett, 911. Rigg B. Lonsdale, 1246. Rigler b. Charlotte, &c. Rid., 1045. Riley v. Boston Water Power Co., 397, 404. B. Connecticut River Rid., 680. B. Norton, 288. B. West Va. &c Ry., 470, 647, 665, 667. Rindge r. Baker, 916. Rine v. Chicago, &c. Rid., 1036. Ring B. Wheeler, .SCO. Ripley v. New Jersey Rid. &c. Co., 1096. Rist V. Faux. 381. Ritchey v. West, 710. Rittenbouse b. Independent Line of Tel., 1206. Rivers b. Augusta, 743, 744. Rives V. Moxham, 1228. Riviere b. Bower, 923. Rixford b. Smith, 1218. Roath V DriscoU, 883, 885. Robalina b. Armstrong, 208. Robbins v. Borman, 990. B. Chicago, 757. V. Mount, 8.38. Robel V. Chicago, &c. Ry., 680, 1271. Roberson v. Kirby, 837. ROG INDEX TO THE CASES CITED. RUG Kobert v. Sadler, 990. Roberts v. Boston, 594. V. Chicago, &e. Ry., 665. V. Connelly, 378. V. Johnson, 1133. V. Karr, 869. V. Koehlf r, 1082. V. Leon Loan, &t'. Co., 700. V. Richmond, &c. Rid., 1229. V. Roberts, 267, 273. V. Rose, 431. V. Smith, 649. V. Sterling, 700. V. Wyatt, 929. V. Yarboro, 405. Robertson v. Atlantic, &c. Rid., 1229. V. McDougall, 347. V. Montgomery, 399. V. Terre Haute, &c. Eld., 685. V. Wabash, &c. Ry., 140. Robins v. Hildredon, 264. Robinson v. Baker, 1181. V. Bangh, 104, 418, 419. V. Black Diamond Coal Co., 842. V. Blake Manuf. Co , 644. V. Evansville, 743, 762. V. Pitchburg, &c. Rid., 443. V Greenville, 743, 752. K.Holt, 938. V. Houston, &c. Ry., 677. V. New York Cent. &c. Rid., 527, 1070. V. Skipworth, 931. V. Swope, 869. V. Webb, 599, 606, 609. V. Western Pac. Rid., 983. Robison v. Gary, 469. Rock V. Indian Orchard Mills, 547. B. McClarnon, 254, 264. Rock Island v. Steele, 740. Rockford v. Tripp, 1021. Roekford, &c. Rid. v. Byam, 1043. ». Coultas, 1105. V. Delaney, 471, 586. u. Hillmer, 1049. V. Irish, 1229. V. Linn, 1229. ». Lynch, 1229. V. RafEerty, 1229. Rockwell w. Proctor, 1177. Rockwood V. Wilson, 104. Rodgers v. Central Pacific R'd., 170. Rodman ». Michigan Cent. Rid., 639. Roe V. Birkenhead, &c. Ry., 725. V. Campbell, 404. Roesner v. Hermann, 641. Rogers v. Crombie, 402. V. Jones, 1254. V. Ludlow Manuf. Co., 647, 665. V. Moore, 399. V. Overton, 687. V. Rogers, 430. Rogers v. Smith, 555, 570. Roland v. Gundy, 932. Rolin V. Steward, 491. Rome V. Dodd, 743, 969. V. Oraberg, 111, 120, 743, 761, 998. Rome Rid. v. Wimberly, 1161. Romick v. Chicago, &c. Ry., 1026. Roney v. Aldrich, 609. Roof 0. Charlotte, &c. Rid., 1229. Root V. King, 288. 1'. Stevenson, 566. V. Sturdivant, 199. Rooth V. Wilson, 806. Rose a. Des Moines Valley Rid., 1076. V. Groves, 424. V. Miles, 955. V. Northeastern Ry., 442. Rosenplaenter v. Roessle, 1179. Rosewell, Rex v., 431. Rosiere v. Sawkins, 208. Ross V. Butler, 416. V. Chicago, &c. Ry., 665, 683. V. Clinton, 415. V. Davenport, 1013. «. Fedden, 8.38. V. Hill, 74. V. Langworthy, 232, 233. Rosser v. Randolph, 418. RossignoU v. Northeastern Rid., 1229. Roswel V. Vaughan, 319. Roswell V. Prior, 422. Rotch V. Hawes, 405. Rotli V. Buffalo, &c. Rid., 1152, 1153, 1161, 1187. V. Duvall, 792. Roulstone, State v., 525. Rounds V. Delaware, &c. Rid., 614. Rouse V. Martin, 100. v. Somerville, 743, 962. Routh V. Caron, 316, 319. Rouvant v. San Antonio Nat. Bank, 480. Rowbotham v. Wilson, 911 Rowe V. Bird, 1240. V. Bradley, 819. V. Greenville. &c. Rid., 1229. B. Roach, 347. Rowell V. Chase, 325. V. Doggett, 869, 871. V. Railroad, 1031. Rowland v. Gallatin, 743, 765. V. Miln, 1186. Rowlands v. Samuel, 240. Rowning v. Goodchild, 1198. Roy V. Goings, 235, 236. Royce v. Maloney, 772. Royston's Appeal, 510. Rozell V. Anderson, 743, 746, 958. Rubenstein v. Cruikshanks, 1177. Rudd V. Richmond, &e. Rid., 576, 854. Ruddock V. Lowe, 709. Ruggles V. Fay, 1228. 699 SAI INDEX TO THE CASES CITED. SAN Rulison V. Post, 594. Rumsey v. Nelson, 1018. Kung V. Shoneberger, 430. Runnels v. Bullen, 906. Ruppel V. Manhattan Ry., 1027. Rush V. Cavenaugh, 271. V. Missouri Pac. Ry., 675. RushvlUe V. Adams, 743, 748, 758, 985. B. Pee, 1019. Russel V. Palmer, 704. Russell V. Barrow, 106. V. Canastota, 960. u. Clark, 318, 330. V. Columbia, 743, 768. V. Hanley, 805. V. Irby, 609. V. Jackson, 872. V. Minneapolis, &c. Ry., 675. V. Tillotson, 851. Rust V. Low, 802. Ruter V. Foy, 442, 475. Rutherford ».' HoUey, 74.3, 1000. V. McGowen, 954. Rutland, &c. Rid. v. Bank of Middle- bury, 402. Rutter V. Missouri Pac. Ry., 1271. Ryan v. Bagaley, 665, 668. V. Chicago, &c. Ry., 665. V. Copes, 426. V. Fralick, 387. ». Miller, 683. V. New York Cent. Rid., 451, 455, 836. V. Wilson, 851. Ryckman v. Gillis, 911. Ryder v. Hathaway, 938. V. New York, 586. Ryer v. Firemen's Journal, 281. Ryerson v. Abington, 966. Rylands v. Fletcher, 839, 843, 1220. Rymer, Reg. »., 1168. Saare v. Union Ry., 1123. Sabin v. Angell, 264. Sabine, &c. Ry. v. Hadnot, 440. Saddler u. Lee, 887. Sadler v. Henlock, 599, 611. St. Clair Street Ry. o. Eadie, 1070. St. Helen's Smelting Co. v. Tipping, 416, 418, 419, 426. St. Johnsbury, &c. Rid. v. Hunt, 811. St. Joseph, &c. Rid. v. Wheeler, 559, 608, 619, 1271. St. Joseph Fire, &c. Ins. Co. ». Leland, 796. St. Louis V. Gurno, 998. I). St. Louis TTniversity, 058. St. Louis, &c. Rid. v. Bell, 854. V. Cantrell, 1101. V. Capps, 983. V. Dalby, 1080. 700 St. Louis, &c. Rid. v. Hardway, 1161. V. Marker, 680. V. South, 1080. St. Louis, &c. Ry. v. Branch, 1095. V. Britz, 665, 677. V. Casner, 1229. 1'. Dorm-m, 1229. V. Freeman, 577, 578, 579, 590. V. Gaines, 665, 6C7. V. Harper, 665, 667. V. Ledbetter, 1051. V. Leigh, 1091. V. Mathias, 459. V. Myrtle, 1080. !). Payne, 1147. V, Rosenberry, 1081. V. Shackelford, 665. V. Smuck, 1160. V. Valirius, 586. V. Vincent, 442. V. Weaver, 470, 639, 665. V. Wilkerson, 146, 1037. St. Louis Bolt, &c. Co. v. Brennan, 680. St. Romes :;. Levee Steam Cotton Press, 724. SaintiS, Reg. v., 948. Salem v. GoUer, 1021. Salem Bank v. Gloucester Bank, 40, 455. Sales V. Western Stage Co., 1129. Salisbury v. Herchenroder, 138, 996. Salmon v. Percivall, 210. Salt Lake City v. Hollister, 733. Salter ». Howard, 370. Saltmarsh v. Bow, 975. Saltonstall v. Banker, 426. I!. Stockton, 1058, 1061, 1108. Sam Gaty, The, 473. Samms v. Stewart, 1057. Sampson v. Henry (11 Pick. 379), 197. 1). Henry (13 Pick. 36), 197. V. Hoddinott, 890. V. Smith, 428. Samuelson v. Cleveland Iron Min. Co., 859. Samyn v. McClosky, 526. Sanborn v. Atchison, &c. Rid., 646. Sandback v. Thomas, 227, 245. Sanders v. Etiwan Plios. Co., 645. . V. Pope, 938. Sanderson v. Caldwell, 270, 283, 310. V. Frazier, 443, 470. V. Pennsylvania Coal Co., 100, 418, 419, 842. Sandford w. Handy, 327. Sandham v. Chicago, &c. Rid., 1064, 1229. Sands v. ChUd, 622. , People v., 417. Sandusky, &c. Rid. v. Sloan, 1229. Sandys v. Hodgson, 1239. Sangamon Distilling Co. v. Young, 425, 471, 1227. SCH INDEX TO THE CASES CITED. SEA Sanxay v. Hunger, 867, 869. Sarch v. Blackburn, 1237. Sargent «. , 380, 381. V. Ballard, 864. V. Mathewson, 374. Satterly v. Morgan, 665, 671. Satterthwaite v. Dewhurst, 378. Sauer o. Monroe, 918. Saulsbury v. Ithaca, 415, 960. Saunders v. Baxter, 302, 305. V. Southeastern Ry., 1096. Saunderson vJ Baker, 794. Sauter v. New York Cent. &c. Eld., 1101,1271. Savage v. Brewer, 243, 490. V. Chicago, &c. Ry., 455, 456. B. Walthew, 629. Savannah v. Cleary, 743, 759. V. Cullens, 743, 758. V. Spears, 743, 746. Savannah, &c. Rid. v. Bonaud, 132, 1059. Savannah, &c. Ry. v. Barber, 680. V. Geiger, 809. V. Lawton, 819. V. Stewart, 1037. Savil V. Roberts, 23, 222, 228, 243, 244, 245, 353, 356, 489. Savile V. Jardine, 262. Savill V. Kirby, 203. V. Roberts, a. c. as Savil v. Rob- erts. Savings Bankw. Ward, 702. Sawtelle v. Rollins, 398. Sawyer v. Corse, 1201. V. Davis, 425. < V. Ryan, 814. V. Vermont, &c. Rid., 1229. Scaling v. Pullman's Palace Car, 1162. Soanlan v. Boston, 1049. Scanlon v. New York, 964. Scattergood v. Sylvester, 932. Schaabs v. Woodburn Sarven Wheel Co., 1146. Schaefer v. Osterbrink, 552. Schaidt v. Blaul, 875. Schall D. Cole, 683. Schaller v. Connors, 1240. Schanck v. Morris, 333. Scheer v. Keown, 213. Sche£Eer ». Washington City, &o. Rid., 44. SchefHer v. Minneapolis, &c. Ry., 1268, 1271. Schell V. Second Nat. Bank, 843. Schenley v. Commonwealth, 783. Schienfeldt v. Norris, 1148. Schierhold v. North Beach, &c. Eld., 580, 1014. Schilling v. Abemethy, 442. Schmidt V. Adams, 610. ». Chicago, &c. Ey., 471, 743, 965, 1024. Schmidt v. Kansas City Dist. Co., 576, ■ 1051. V. Milwaukee, &c. Ey., 132, 678, 686. V. Quinn, 872. V. Weidman, 233. Schoelkopf v. Leonard, 838. Schoettgen v. Wilson, 786. Schofield V. Chicago, &c. Rid., 1043. Scholes V. Ackerland, 1186. School District v. Boston, &e. Eld., 1160. V. Bragdon, 565. V. Neil, 71. V. Williams, 743. Schoonover v. Irwin, 813. Schrier v. Milwaukee, &C'. Ry , 800. Schroeder v. Michigan Car Co., 680. Schroth V. Prescott, 977. Schroyer v. Lynch, 1199, 1200. Schulenberg v. Harriman, 938. Schulte V. HoUiday, 611. V. St. Louis, &c. Ry., 1229. Rchultz V. Chicago, &c. Ry., 665, 675. Schwandner v. Birge, 676. Scliweickhardt v. St. Louis, 743. Schwier u. New York Cent. &c. Eld., 590. Scidmore v. Smith, 370. Scott V. Ely, 209, 213. V. Firth, 426. V. Fleming, 199. «. Grover, 807. V. Hunter, 39, 455, 526. V. Lara, 316. V. London, &c. Docks, 448. V. McKinnish, 293. V. Manchester, 724. V. Oregon Ry. &c. Co., 677. V. St. Louis, &c. Ry., 1229. V. Seymour, 1277. V. Shepherd, 45. V. Simpson, 242. V. Stansfield, 296. , State v., 783. V. Sweeney, 665. V, Watson, 665 V. Wilmington, &c. Eld., 1046. V. Wirshing, 804. Scoville V. Hannibal, &c. Eld., 1271. Scranton v. Catterson, 743, 962. V. Hill, 1148. Screven v. Gregorie, 872. Scribner v. Beach, 199. V. Kelley, 1230. Scudder v. Anderson, 404, 929. Seabrook i;. King, 872. Seagar v. Sligerland, 379. Scale V. Gulf, &c Ry., 42, 47. Seaman v. NethercUft, 296, 298, 300. V. Patten, 786. Seare v. Prentice, 76, 698, 710. 701 SHA INDEX TO THE CASES CITED. SHR Searing i'. Saratoga Springs, 50. Searle v. Lindsay, 647. V. Williams, 289. Searles v. Milwaukee, &c. Sy., 1229. Sears v. Dennis, 758, 1012. Seavey v. Preble, 711, 822. Seavy v. Dearborn, 9.38. Seay v. Greenwood, 490. Seebkristo v. East India Co., 172. Seeger v. Pfeifer, 21 1. Seehorn v. Darwin, 28. Seeley v. Bishop, 872. V. Litchfield, 968, 969. Seifert v. Brooklyn, 743, 746. Self V. Dunn, 954.- Sellars v. Richmond, &o. Rid., 1024. Sellecfc u. Lake Shore, &c. Ry., 43, 1018. Seller v. Jenkins, 262. Selma v. Perkins, 743, 758. Semayne's Case, 103. Seneca Road v. Auburn, &c. Bid., 949, 982 Senhouse v. Christian, 869, 87-3. Serffi V. Acton Local Board, 872. Servatius v. Pichel, 273, 302, 305. Severance v. Judkins, 247. Severy v, Nlckerson, 927. Sewall V. Catlin, 271. Sewell V. Defiance Un. Sch., 594. V. Webster, 64. Sexton V. Zett, 1002. Seybolt v. New York, &c. Rid., 443, 1076. Seymer v. Lake, 513. Seymour's Case, 778. Seymour ». Chicago, &e. Ry., 1086. V. Greenwood, 614, 615. V. Scott, 1277. Shaber v. St. Paul, &c. Ry., 442, 1043, Shadgett v. Clipson, 213. Shadwell v. Hutchinson, 422. ShaeSer v. Sleade, 315. Shafer v. Loucks, 225, 239. Shallow V. Salem, 1020. ShamleSer v. Council Grove, &c. Mill, 890. Shanley v. Wells, 499. Shannon v. Boston, &c. Bid., 1068, 1086.- Shanny v. Androscoggin Mills, 647. Shapleigh v. Wyman, 1018. Sharon v. Mosher, 46. Sharp V. Cheatham, 916. Sharpe v. Johnston, 236. Shartle v. Minneapolis, 743. Shattuc V. McArthur, 285. Shattuck V. Rand, 848. Shaul V. Brown, 228, 239 Shaw V. Cummiskey, 416, 426. V. Hitchcock, 916. V. Mussey, 819. 702 Shaw ». Oswego Iron Co., 955. 1). Reed, 609. V. Stine, 336. Shawhan v. Clarke, 182. Shea V. Lowell, 1020. V. Reems, 1015. 0. Sixth Ave. Rid., 609, 1148. Sheaf 0. Utica, &c. Rid., 1229. Shedd V. Moran, 665. Sheedy v. Union Press Brick Works, 1002. Sheehan ». New York Cent. &c. Rid., 665. V. Sturges, 593, 596. Sheehy v. Burger, 1012. Sheeler v. Chesapeake, &c. Rid., 680. Shelby v. Sun Printing, &c. Assoc, 254. Sheldon v. FUnt, &e. Eld., 1271. V. State, 952. Sheley v. Detroit, 959. Shellabarger v. Chicago, &c. By., 804. Shelton v. Lake Shore, &c. By., 1096. V. Nance, 283. V. Simmons, 306. Shepard, State v., 194. Shepherd v. Chelsea, 451. V. McQuilkin, 522. Sheppard v. Shoolbred, 983. Sherfey v. Bartley, 1237. Sheridan v. Brooklyn City, &c. Eld., 1124. V. Charlick, 612. B. Salem, 960. V. Sheridan, 277. Sherley v. Billings, 1068, 1090. Sherlock v. Ailing, 106-3, 1137. Sherman v. Chicago, &c. Ry. (40 Iowa, 45), 1084. o. Chicago, &c. Ry. (34 Minn. 259), 680. V. Johnson, 556, 1268, 1271. Sherred ». Cisco, 915. Sherwood v. Reed, 241. Shilcock V. Passman, 705. Shilling V. Carson, 293. Shillito o. Thompson, 413. Ship Howard v. Wissman, 1218. Shipley v. Fifty Associates, 839, 996. V. Todhunter, 277. Shipp V. Story, 257, 306. Shippen v. Bowen, 316. V. Tankersley, 321. Shirley i-. Bishop, 71, 989. Shock V. McChesney, 227. Shoecraft v. Bailey, 1171. Shoemaker v. Lacey, 1271, 127-3. ShoU V. German Coal Co., 869. Shorter v Smith, 954. Shrieve v Stokes, 910. Shriver ii. Sioux City, &c. Rid., 1075. Shroder v. Brenneman, 867. SLA INDEX TO THE CASES CITED. SMI Slmrtleff i-. Farter, 302, 304, 532. Sibley v. Hulbert, 340. Sides V. Portsmouth, 743, 962. Siegrist v. Arnot (86 Mo. 200), 1135. V. Arnot (10 Mo. Ap. 197), 446. Siemers ». Eigen, 112, 140. Sieveking v. Litzler, 325. Silses V. Johnson, 522, 525. 565. V. Manchester, 743, 965. W.Sheldon, 1021. Silliman v. Hudson River Bridge, 953. Silsbury v. McCoon (3 Comst. 379), 939 V. MfiCoon (4 Benio, 332), 939. Silver v. Martin, 624. Simar v. Canaday, 327. Simkin v. London, &c. Ry., 1086. Simkins v. Columbia, &o. Rid., 1229. Simmonds v. New Yok, &c. Rld», 1031. Simmons v. Chicago, &c. Eld., 680. V. Cornell, 958. 0. Holster, 281. V. Sikes, 397. 1). Sines, 872. Simon v. Atlanta, 743, 987. V. The Fung Shuey, 1160. Simonds v. Henry, 710. Simonin v. New York, &c. Eld., 1138. Simons v. Gaynor, 1148. Simpson v. Bloss, 64. V. East Tennessee, &c. Eld., 1027. V. Lamb, 706. V. McFarland. 398. V. Mercer, 535. V. Bobinson, 306. V. Savage, 412. V. State, 847. Sims V. Glazener, 938. , State v., 191. Simson v. Barlow, 271. V. London Gen. Omn. Co., 442. Sinclair v. Baltimore, 743, 763. V. Eldred, 242, 244. Singer v. Bender, 270. Sinton v. Butler, 858. Sioux City v. Weare, 1003. Sioux City, &c. Rid. v. Finlayson, 677. Sisk V. Huret, 230. Sitton V. Farr, 227. Six Carpenters Case, 391, 392, 3P4. Skelton v. London, &c. Ry., 436. Skidmore v. Bricker, 236. Skinner v. Dayton, 938. V. Gunton, 354. , Eex v., 296, 297, 300." V. White, 938. Skull V. Glenister, 867. Slade V. Little, 317. Slater v. Baker, 698, 710. V. Jewett, 665. V. Mersereau, 451, 525, 602. V. Swann, 993. Slattery v. St. Louis, &c. Eld., 811. Sleath V. Wilson, 608, 610. Sleeper «. Abbott, 706. Sleight V. Ogle, 220. Slight,«. Gutzlaff, 422, 527. Slimmer «. Merry, 954. Slinger v. Henneman, 1240. Sloman v. Great Western Ry., 1154. Slossen v. Burlington, &c. By., 1029. Small V. Chicago, &o. Eld., 451. Smalley v. Smalley, 814. Sniead v. Badley, 345. Smith V. Adams (6 Paige, 435), 879, 892. V. Adams (27 Texas, 28), 223. V. Alexander, 399. w. Atlanta, 743, 751. V. Austin, 236. V. Baker, 414. V, Barnes, 869. ». Birmingham, &c. Gas-light Co., 724. V. Boston, &c. Eld. (120 Mass. 490), 62. V. Boston, &c. Eld. (44 N. H. 325), 1156. V. Bowler, 22. V. Burlington, &c. Ey., 665, 690. V. Causey, 1225. V. Chicago, &c. Ey., 1109. V. Colcord, 1182. V. Consumer's Ice Co., 1146. V. Conway, 1016. V. Downing, 401. V. Fletcher, 839. V. Foran, 630. V. Gardner, 1017. V. Grand Street, &o. Eld., 1014. V. Green, 46. V. Hall, 210. V. Higgins, 298. 305. V. Hintrager, 244. V. Howard, 298. V. Jewett, 938. V. Jones, 211. V. Kemp, 1253. V. Knowlton, 783. V. Kron, 548. V. Leavenworth, 992, 1006, 1015. V. Lee, 870. V. London, &c. Ey., 439, 835. V. McConathy, 426. D.Madison, 1261. V. Matteson, 1002. V. Memphis, &c. Eld , 648. V. Miles, 309. V. Morrill, 938. V. New York, &c. Eld. (142 Mass. 21), 869. r. New York Cent. &c. Eld. (38 Hun, 3.S), 513. r. North Carolina Eld., 1160. 703 sou INDEX TO THE CASES CITED. SPR Smith V. Peabody, 570. V. Pelah, 1234. 1) Pierce, 392. V. Potter, 665, 667. V. Powdicii, 1198. , Rex v., 822. V. Rock, 68. V. St. Joseph, 1013. V. St. Louis, &c. Ry. (91 Mo. 58), 1229. V. St. Louis, &c. Ry. (25 Mo. Ap. 113), 1229. V. Sanborn, 938. V. Shackleford, 226, 247. V. Simmons, 986. V. Slocomb, 989. V. Smith (80 Conn. Ill), 374. V. Smith (2 Pick. 621), 950. V. Smith (2 Sneed,-473), 266. V. Spooner, 348, 351, V. State (7 Humph. 43), 206. V. State (39 Missis. 521), 194, 199. V. Stephan, 743, 771. «. Sykes, 1268. V. Thackerah, 909. V. Wakefield, 758. V. Washington, 997. V. Webster, 609, 611. V. Wildes, 1021. V. Wood, 291. Smyles v. Hastings, 872. Smyth V. Bangor, 978. Snead v. Watkins, 1181. Snediker v. Poorbaugh, 267. Snider v. Adams Express, 1191. V. St. Louis, &c. Ry., 811. Snow V Chandler, 519. V Cowles, 429, 431. V. Provineetown, 586. — ^ V. Whitehead, 412. Snowden v. Norfolk So. Eld., 1229. V. State, 545, 516. Snyder v. Fulton, 305. V. Hannibal, &c. Rid., 609, 619. V. Pittsburgh, &c. Ry., 466, 470. Soldanels v. Missouri Pac. Bid., 659. Solomon v. Central Park, fi,c. Rid., 587. V. Manhattan Ry., 1099, 1121. V. Vintners Co., 912. Solomon Rid. v. Jones, 1024. Solverson v. Peterson, 285. Somerset, &c. Rid. v. Galbraith, 683. Somerville v. Hawkins, 303. V. O'Neil, 426. Sonier v. Boston, &c. Rid., 469, 1086. Sorenson v. Menasha Paper, &c. Co., 177. Souter I). Codman, 825. South V. Denniston, 878, 381. South and North Alabama Rid. v. Ha- good, 1229. V. Henlein, 1160, 1218. 704 South and North Alabama Rid. v. Huff- man, 1081. 1). Schaufler, 1101. South Carolina Rid. v. Nix, 1097. South Royalton Bank v. Suffolk Bank, 103, 111. Southern Express v. Armstead, 1160, 1186. V. Caldwell, 1160. V. Crook, 1160, 1185. V. Fitzner, 612. V. Hunnicutt, 1191. V. McVeigh, 74, 75. V. Moon, 1075. V. Newby, 1185. Southwick V. Estes, 610. Southworth v. Old Colony, &e. By., 1019. Sowerby v. Wadsworth, 1009. Sowers v. Sowers, 310. Spaids V. Barrett, 245. Spaits V. Poundstone, 286, 291. Spalding v. Lowe, 239. 1>. Oakes, 1225. Sparks v. Purdy, 401. Spaulding ti, Winslow, 529. Speaker v. McEenzie, 262. Spear v. Hiles (67 Wis. 350), 232. V. Hiles (67 Wis. .S61), 241. V. Marquette, &c. Rid., 476. Spearbrjcket v. Larrabee, 743. Spears v. Smith, 784. Speed V. May, 1279. Spenee v. Union Marine Ins. Co., 938. Spencer v. Baltimore, &c. Rid., 1046. V. Campbell, 142, 832, V. Illinois Cent. Rid., 1026, 1044 V. Point Pleasant, &c. Rid., 982. Spieer v. Chicago, &c. Ry., 1108. V. South Boston Iron Co., 645, 646. Spinner v. New York Cent. So. Rid., 1229 Spiva V. Osage Coal, &c. Co., 675, 1271. Spivey v. Morris, 399. Splittorf B. State, 749. Spofford V. Harlow, 466. Spooner v. Brooklyn City Rid., 1134. V. Hannibal, &c. Rid., 1156. V. Keeler, 262. Sprague v. Missouri Pac. By., 1160. V. Rhodes, 420, 429. V. Western Union Tel., 1207, 1209. Spray v. Ammerman, 943. Sprmg V. Gflenn, 1268, 1271. V. Hager, 1179. v.- Hyde Park, 768. Springer Transp. Co. v. Smith, 1138. Springfield v. Harris, 890. «. Le Claire, 743, 759. V. Selieevers, 984. V. Spenee, 743, 746. STE INDEX TO THE CASES CITED. STO Springhead Spinning Co. u. Riley, 359, 371. Sprang V. Boston, &c. Eld., 680. Squires v. Cliillicotlie, 743, 964. Staal 0. Grand Rapids, &c. Rid., 1271. Stace V. Griffith, 808. Stackpole v. Healy, 990. Stadliecker v. Combs, 1185. Staiford v. Chicago, &c. Rid., 655. V. Coyney, 869, 948. ». Hannibal, &o. Rid., 1086. V. Ingersol, 1220. V. Oslcaloosa (57 Iowa, 748), 963. V. Oskaloosa (64 Iowa, 251), 978. V. Rubens, 578, 580, 1271. Stainback v. Rae, 177, 442, 473. Staley o. Turner, 707. Stallings v. Owens, 59. , Stallkneeht v. Pennsylvania Rid., 1281. Stamps V. Newton, 783. Stanclifield v. Newton, 889, 895. Standish v. Lawrence, 916. Stanley v. Gaylord, 929. V. Missouri Pac. Ry., 1229. Stansbury v. Fogle, 239, 524. Stansell v. JoUard, 912. Stanton v. Hart, 236, 248. V. Seymour, 210. Stanyon v. Davis, 75. Staple V. Spring, 422. Star V. Rookesby, 802. Starin v. New York, 954. Stark V. Chitwood, 348, 350. V. Lancaster, 976. V. People, 952. Starne v. Schlothane, 665. Starr ». Camden, &c. Rid., 982. Staub V. Fantz, 800, 801. V. Van Benthuysen, 286. Steams v. Herrick, 938. V. Janes, 864. Stebbins v. Keene, 743, 764. Stedman v. Crane, 816. V. Smith, 919. Steel V. Grigsby, 875. V. Kurtz, 1271. V. Williams, 226. Steele v. Dunham, 788. V. Southwick, 259, 280. Steer v. Scoble, 243. Steers v. Brooklyn, 172. V. Liverpool, &c. Steams. Co., 1160. Steever v. Beejiler, 292. Stein V. Hauok, 924. ' Steinbach v. Hill, 36. Steketee v. Kimm, 283. Stell, Ex parte, 590. Stent V. McLeod, 1279. Stephani u. Brown, 962. Stephens v. Elwall, 624. — - V. Macon, 1013. 45 Stephenson v. Grand Trunk Ry., 812. 0. Hart, 1186. V. Little, 938. Stepp V. Chicago, &c. Ry., 1049. Sterling, The, 473. Sterling v. Jugenheimer, 254. Stetson V. Faxon, 424, 968. SteubenvlUe v. McGill, 983. Stevens v. Allen, 574. V. Briggs, 939. V. Fuller, 319. V. Jeaoocke, 132. V. Kelley, 143. V. Midland Counties Ry. (10 Exch. 362), 731. V. Midland Counties Ry. (18 Jur. 932), 145. V. Sampson, 299, 301. Stevenson v. Belknap, 379. , V. Chicago, &c. Rid., 1108. V. Newnham, 143. Steward v. Bishop, 264. V. Gromett, 249. V. Young, 348. Stewart v. Boston, &c. Rid., 1095. V. Brooklyn, &o. Kid., 609, 1068. V. Burlington, &c. Rid., 1229. V. eiinton, 743, 746. 761. . V. Hartman, 869, 872. 1'. Hawley, 211. V. Head, 1179. V. New Orleans, 746. w. Parsons, 1179. V. Sonneborn, 234, 242. V. Southard, 771, 788. V. Terre Haute, &c. Rid., 1271. V. Thompson, 220. Sthreshley v. Fisher, 210. Stieber v. Wensel, 267. Stiles V Atlanta, &c. Rid., 1109.' II. Cardiff Steam Nav. Co., 723, 737. V. Geesey, 459, 465, 1012. V. Granville, 559. Stillwell V. New York, 743. Stimpson v. Sprague, 73. Stimson v. Connecticut River Rid., 1166. V. Helps, 329. Stinson v. Gardiner, 1009, 1015. Stitt V. Little, 316, 8.30. Stitzell V. Reynolds (9 Smith, Pa. 488), 264, 266. V. Reynolds (17 Smith, Pa. 64), 268. Stock V. Harris, 1198. V. Wood, 578, 579, 588. Stockdale v. Hansard, 777. V. Onwhyn, 58. Stocking V. Howard, 228. Stockport Waterworks v. Potter, 412, 418. 705 STR INDEX TO THE CASES CITED. SWE Stockton V. Frey, 1129. Stockton, &(;. Ky. i-. Brown, 748. Stoddard v. Bird, 209. StodghUl V Chicago, &e. Eld., 1000. Stoeckman u. Terre Haute, &u. Kid., 1281. Stoher v. St. Louis, &o. Ry., 1271. Stokes V. Saltonstall, 443, 1129, 1133. Stone V. Cooper, 283, 284. V. Crocker, 240. 0. Graves, 781, 784. V. Hooker, .55. V. Hubbardston, 529, 976. V. Matberly, 521. V. Stevens. 145, 228. V. Walt, 802. Stoneraan v. Atlantic, &c. Rid., 1229. w. Erie Ry., 1154. Stoner v. Pennsylvania Co , 1099. Stoomvaart Maatschappy Nederland V. Peninsula, &c. Steam Nav. Co., 473. Storey v. Ashton, 612. V. Challands, 27.3, 274. V. Wallace, 298. Storms V. White. 804. Story V. New York Elev. Rid., 981, 989, 991, 997. w. Odin, 814. Stoughton I). Mott, 394. Stout V. Sioux Citv, &c. Rid., 854. V. Woody, 369. V. Wren, 196. Stowe V. Heywood. 377. Stowell V. Beagle, 534. V. Lincoln, 80. Stoyel V. Lawrence, 209. V. Westcott, 73. Stratton, Commonwealth v., 192. V. European, &c. Ry., 1031. V. Staples, 848. Straus V. Kansas City, &c. Rid. (75 Mo. 185), 466, 1101. V. Kansas City, &c. Rid. (86 Mo. 421), 1101. V. Young, 236. Strauss «. County Hotel, &c. Co., 1171. V. Meyer, .800. Streeper v. Ferris, 245. Streeter v. Breckenridge, 960. Streight v. Bell, 228. Strickler v. Greer, 235. Striegel v. Moore, 142. Stringham v. Steuart (64 How. Pr. 5; 27 Hun, 562), 665. V. Stewart (100 N. T. 516), 617, 684. Stroble v. Chicago, &c. Ry., 665, 680, 690. Stroebel v. Whitney, 264. Strong V. Peters, 319. V. Sacramento, &o. Eld., 1043. 706 Strong V. Stevens Point, 1009. Strouse v. Whittlesey, 177, 182. Strubbee ». Cincinnati Ry. Trustees, 939. Stuart V. Havens, 986. V. Simpson, 369. i;. Western Union Tel., 1207. Studdard v. Linville, 277. V. Trucks, 254, 273. Sturges V. Bridgman, 426. w. Theological Ed. Soc, 426, 604, 606. Subley v. Mott, 354. Snllings v. Shakespeare, 291. Sullivan v. Davis, 869. V. Graffort, 918. V. Holyoke, 743, 764. V. India Manuf. Co., 651. V. Murphy, 515. V. Oshkosh, 968. w. PhiUips, 819. V. Scripture, 177. V. Thompson, 1186. V. Tioga Rid., 665. V. Toledo, &c. Ry., 470. Sultana, The, v. Chapman, 1186. Sulzbacher v. Dickie, 606. Summerhays v. Kansas Pac. Ry., 653. Summers v. Crescent City Eld., 1119. Sumner v. Utley, 271. Sunbolf V. Alford, 1181. Sunbury, &c. Rid. ». Cooper, 777. Sunderlin v. Bradstreet, 305. Supervisors, People v., 952. Surface v. Hannibal, &c. Kid., 631. Suroeco v. Geary, 126. Susquehanna Depot i>. Simmons, 986. Sutton V. Anderson, 22.5. V. Clarke, 118, 521, 768. 1). Groll, 874. V. Johnstone, 242. U.Moody (1 Ld. Raym. 250; 5 Mod. .S76; 12 Mod. 144; 2 Salk 556), 1246. V. Moodv (12 Mod. 145), 1246. V. New York, &c. Rid., 1048. V. Wauwatosa, 464. Sutton's Hospital, Case of, 720, 722. Svehson v. Atlantic Mail Steams. Co., 666. Swain v. Mizner, 816. Swan V. Bournes, 1181. V. Manchester, &c. Rid., 1080. V. Saddlemire, 364 490. V. Smith, 783. V. Tappan, 272, 347, 350, 851. Swann v. Phillips, 320. V. Rary, 288. Swansborough o. Coventry, 923. Swartz V. Hazlett, 373, 665. Swearingen ». Missouri, &c. Eld., 1229. Sweatland v. Illinois, &r. Tel., 1209. TAY INDEX TO THE CASES CITED. TEX Sweeney v. Berlin, &c. Co., 646, 675. V. Central Pac. Rid., 1229. V. Minneapolis, &c. Ry., 1024. Sweeny v. Old Colony, &c. Rid., 1049. Sweet V. Negus, 228. Sweetser v. Boston, &c. Rid., 50. Swetland ti. Boston, &c. Rid., 1152. Swett V. Cutts, 898, 903 Swift V. Applebone, 1240. Swift Run Gap Tump., Commonwealth v., 722. Swigert V. Hannibal, &o. Rid., 463, 466, 1099. Swinfen v. Chelmsford, 704. Swithin v. Vincent, 525. Syeds v. Hay, 403. Sykes v. Dixon, 371. V. Lawlor, 558. V. Sykes, 339. Symonds v. Carter, 267. Taaffe v. Downes, 782. Taber v. Grafmiller, 743, 977. Tabor v. Bradley. 863. Taggard v. Innes, 505. Tainter v. Worcester, 743, 746, 762. Talbot V. Taunton, 970, 997. Tally V. Ayres, 142, 150. Tancil v. Seaton, 936. Tanner v. Albion. 421. Tapling v. Jones, 924. Tapp V. Lee, 316. Tarbell v. Central Pac. Rid., 1062. Tarleton v. McGawley, 146, 421. Tarlton v. Fisher, 211. Tasburgh v. Day, 350. Tate V. Missouri, &c. Ry., 527. Tattan v. Great Western Ry., 74. Tatum V. Sharpless, 936. ^ Taubman v. Lexington, 975. Taunton, Commonwealth v., 953. V. Costar, 197. Taylor v- , 405. V. Armstrong, 989. V. Ashton, 315, 316, 3-30. V. Atlantic Mut. Ins. Co., 177, 955. V. Boston Water Power Co., 950. 1.. Carew Manuf . Co. (140 Mass. 150), 847, 851. r. Carew Manuf. Co. (143 Mass. 470), 850. ^ ,„„ V. Cranberry Iron, &c. Co., 1271. V. Cumberland, 743, 744. V. Delaware, &c. Canal, 1048. V. Doremus, 784. V. Goodwin, 1008. V. Grand Trunk Ry., 36, 1064. V. Great Northern Ry., 1185. V. Hall, 254, 269. V. Holman, 150. V. How, 276. Taylor v. Jones, 394. V. Lake Shore, &c. Rid., 137. V. Leith, 316, 330. V. Missouri Pac. Ry. (86 Mo. 457), 1043. V. Missouri Pac. Ry. (26 Mo. Ap. 336), 1101. V. Peckham, 743, 971. V. Perkins, 269. V. Porter, 869. V. Rice, 241. V. Robinson, 308. V. St. Louis, 998. V. Scoville, 331. V. Short, 264, 265. , State v., 413. , United States v., 442. V. Whitehead, 162. V. Woburn, 958. V. Yonkers, 960, 962, 963, 965. Teagarden v. McLaughlin, 549, 652. Teal V. Felton (12 How. U. S. 284), 1198. V. Fissel, 230. Teall V. Felton (1 Comst. 537), 1198. Temperance Hall Assoc, v. Giles, 972. Templeton v. Montpelier, 1146. Tenant v. Golding (1 Salk. 21), 415, 901, 1220. V. Goldwin (2 Ld. Raym. 1080), 901, 1220. Tennenbrock v. South Pac. Coast Eld., 1037. Terre Haute, &c. Rid. v. Black, 445, 1026. V. Buck, 450, 1100, 1101, 1271. V. Fitzgerald, 1097. V. Graham (46 Ind. 239), 614, 1037. V. Graham (95 Ind. 286), 1037. V. Jackson, 725. Terre Haute Gas Co. v. Teel, 729. Terry v. Fellows, 298, 806. V. Hooper, 270. V. Hutchinson, 378, 379. V. New York, 838. V. St. Louis, &c. Ry., 1026. Terwilliger v. Wands, 254, 273, 274. Tevis V. Ellis, 68. Texas, &c. Rid. v. Berry, 1271. Texas, &c. Ry. v. Best, 1109. V. Bond, 1097. V. Bradford, 645. V. Chapman, 1043, 1049. — — V. Hamilton, 645. V. Harrington, 665. V. Kirk, 648. V. Lowry, 1049. V. McAtee, 645. V. Mallon, 1026. V. Medaris, 1029. V. Morin (66 Texas, 133), 558. V. Morin (66 Texas, 226), 571. 707 TIC INDEX TO THE CASES CITED. TOL Texas, &c. By. v. Murphy, 442. V. O'Donnell, 1037. V. Orr, 470, 1086, 1271. V. Seott, 1092. V. Vallie, 1024. Texas Central Ry. v. Childress, 810. Texas Mex. By. v. Whitmore, 653. Textor v. Baltimore, &c. Rid., 992. Thayer v. Arnold, 802. V. St. Louis, &c. Bid., 1160. Theilan v. Porter, 743, 754. Thelin v. Dorsey, 241. Thirman v. Matthews, 277. Thom V. Bigland, 329. Thomas v. Armstrong, 954. V. Brooklyn, §77. V. Churton, 296. V. Delaware, &c. Bid., 1040, 1049. V. James, 68. V. New York, 1012. V. Quartermaine, 689. V. Western Union Tel., 1013. V. Winchester, 413, 702, 716. Thomasson v. Agnew, 111. Thompson's Case, 775. Thompson v. Chicago, &c. Bid. (22 Mo. Ap. 321), 1160. V. Chicago, &c. By. (18 Fed. Bep. 239), 665. V. Flint, &c. By., 1041. B. Force, 235. V. Gibson, 422. V. Grimes, 309. V. Lacy, 1165, 1181. V. Morris, 319. V. Mumma, 199. V. New York Cent. &o. Rid., 1046. , People v., 952. V. Biohmond, &c. Rid., 1031. V. Western Union Tel., 1209. V. White, 351. V. Young, 57, 386. Thomson v. Winchester, 33, 339. Thorley v. Kerry, 255. Thornton v. Smith, 429, 431. Thorogood v. Bryan, 1070. Thorpe v. Balliett, 242. V. Brumfitt, 867. V. Missouri Pac. By., 470, 680. V. New York Cent. &c. Eld., 1113. V. Wray, 209. Thrall v. Smiley, 288. Threfall v. Berwick, 1176, 1181. Thurber v. Harlem Bridge, &c. Bid., 586. ». Martin, 890, 891. Thurston v. Hancock, 100, 906, 912. V. Union Pac. Rid., 1061. Thweatt v. Jones, 56, 535. Tibby v. Missouri Pac. By., 1106. Tickell V. St. Lonis, &c. By., 811. 708 Tiemey v. Minneapolis, &c. By., 665, 667. V. Troy, 743. Tiffin 0. McCormack. 831. Tiflfl V. TifEt, 550, 565. Tift V. Jones (52 Ga. 538), 986. ». Jones (74 6a. 469)i 952. V. Towns, 439. Tighe V. Lowell, 1009. Tillotson V. Cheetham, 275. V. Smith, 30, 895. Tindley v. Salem, 743. Tinkle v. Unnivant, 546. Tipping V. St. Helen's Smelting Co., 429. Tissue V. Baltimore, &c. Bid., 445. Titan, The, 665. Titchburne v. White, 1188. ^ Titcomb v. Wood, 933. Titus V. Lewis, 111. Tobin V. Deal, 929. Todd V. Hawkins, 304 V. Old Colony, &c. Rid., 442. Tohayles Case, 426. Toledo V. Cone, 743, 750, 768. Toledo, &c. Bid. v. Patterson, 1080, 1097. Toledo, &c. Bv. b. Apperson, 1104. ». Barlow", 1229. V. Beggs, 60, 61, 1094. V. Brannagan, 101-3. V. Brooks, 1094. V. Gary, 811, 1229. V. Cohen, 812. V. Corn, 1028. «. Darst, 811, 1229. V. Deacon, 445, 1229. ». Eddy, 677. V. Elliott, 692. V. Fredericks, 645. V. Grable, 581. V. Hammond, 1152, 1156. V. Harmon, 610, 983. V. Head, 1041. V. Ingraham, 665, 683. ». Lavery, 811. V. Lockhart, 1229. V. Logan, 811. !). McDonongh, 1078. V. McGinnis, 1024, 1229. 1'. Maxfield, 1030. V. Miller, 1040. V. Milligan, 1229. V. Moore, 665. V. Morrison, 898. V. O'Connor, 471, 669. V. Owen, 1229. V. Parker, 1229. U.Pindar, 465,471. V. Riley, 513. V. Weaver, 811. V. Williams, 1087. TRU INDEX TO THE CASES CITED. UND Tomlinson v. Brittlebank, 262. V. Warner, 490. Tompkins v. Clay St. Rid., 518, 1071. V. Sands, 781, 784. Tonawanda Rid. v. Manger, 436, 446, 475. Tootle V. Clifton, 898, 903. Topeka, State v., 1240. Topf V. West Shore, &o. Ter. Co., 146. Torpey «. Independence, 819. Totten V. Cole, 943. Touhey ». King, 209. Tower v. TJtica, &c. Rid., 1159. Towle V. Blake, 187. Towne v. Collins, 932. V. Wiley, 567. Townley v. Chicago, &c. Ry., 445, Towns «. Vicksburg, &e. Rid., 644. Townsend v. New York, &c. RlJ. (6 Tliomp. & C. 495 ; 4 Hun, 217), 1078. V. New York Cent. &o. Rid. (56 N. Y. 295), 1068, 1096. V. Susquebannah Turnpike, 447, 9'52. V. Wathen, 853. Townsley v. Missouri Pac. Ry., 1229. Tracy v. Norwich, &c. Rid., 619. I). Williams, 210. Traflord v. Adams Express, 1271. Train, Reg. »., 980. Transportation Co. v. Chicago, 14, 119, 120, 743, 905, 906, 997. Tranter v. Sacramento, 743, 749. Trask u. California Southern Rid., 648. Traver v. Eighth Ave. Rid., 374. Travers v. Kansas Fac. Ry., 1068. Treat v. Browning, 293. Tredway v. Sioux City, &c. Ry., 1^9. Treiber v. Burrows, 1176. Trescott v. Waterloo, 743, 745. Trickey v. Schlader, 958. Trimble v. Anderson, 285. V. Foster, 288, 810. Tripp V. Thomas, 275. Triscony v. Brandenstein, 819. Tritz V. Kansas, 960, 969. Trogden v. Deckard, 225. V. Henn, 200. Trompen v. Verhage, 1240. Trotlinger v. East Tennessee, &o. Rid., 1081, 1095. Troughear v. Lower Vein Coal Co., 665. Trout V. Virginia, &c. Rid., 1229. Trowbridge v. Brookline, 884. V. Forepaugh, 1002. Trower v. Chadwick, 910. Troxler v. Richmond, &c. Rid., 1029. True V. International Tel., 1209. Truex v. Erie Ry., 1106. Trussell v. Scarlett, 305. Trustees, &c. v. People, 594. Tryon v. Whitmarsh, 320. Tubbs V. Tukey, 209. Tubervil v. Stamp (1 Salk. 13), 833. Tuberville v. Savage, 194. Tucker v. Duncan, 1042. V. White, 830. V. Wright, 402. Tuckwell V. Lambert, 340. Tudor, State !■., 1072. Tuel V. Weston, 150, 611. Tuff 1-. Warman, 463, 467. TufEree ». State Center, 1018. Tullay V. Reed, 824. Tully V. Fitchburg Rid., 1148. Tunstall v. Christian, 909. Turbervil v. Stamp (Comb. 459; 12 Mod. 152), 833. Turberville v. Stamp (1 Comyns, 32), 169, 179. Turley v. Thomas, 1016. Turner v. Ambler, 239, 240. V. Brent, 319. V. Buchanan, 1004. V. Fenner, 1279. V. Indianapolis, 665, 743, 965. V. North Carolina Eld., 62. V. O'Brien, 231, 234, 241. V. St. Louis, &c. Ry., 1229. V. Spooner, 924. V. Thompson, 924. V. Vicksburg, &c. Rid., 1086. Turpen v. Booth, 297, 781. Turpin v. Remy, 228. Turton v. Reignolds, 814. Tutein v. Hurley, 39. Tuthill V. Scott, 892. Tuttle V. Detroit, &c. Ry., 665, 675. V. Gilbert Manuf. Co., 858. V. Walker, 875. Tutty V. Alewin, 271. Twigg V. Ryland, 1234. Twitchell, Commonwealth v., 1261. Twogood V. New York, 1013. Twombly v. Leach, 712. Twomley v. Central Park, &c. Eld., 445. Tyler v. Illinois Cent. Rid., 1229. V. Western Union Tel., 1209. Tyly V. Morrice, 1188. Tyner v. Cory, 943. Tyrrell ». Bank of London, 706. ij. Eastern Rid., 1105. Tyson v. Keokuk, &o. Rid., 1229. Uhlein v. Cromack, 1240. Ulery v. Jones, 1245. Ulrich V. New York Cent. &c. Rid., 1092, 1113. TJmback v. Lake Shore, &c. Ry., 677. Underbill v. Manchester, 753. 709 VAN INDEX TO THE CASES CITED. TIN Underhill v. Welton, 274. Underwood b. Brown, 103. V. Carney, 867, 874. V. Hewson, 142, 195. V. Parks, 288, V. Waldron, 821. Unger v. Forty-second Street, &c. Rid., 438, 1023. Union Brass Manuf. Co. v. Lindsay, 858. Union Bridge v. Spauldiog, 952. Union Manuf. Co. v. Morrissey, 677. Union Pac. Rid. v. Fort, 651, 665. Union Pac. Ry. v. Adams, 1043. V. Harris, 665, 690. V. Harwood, 1024. V. Milliken, 671. V. Nichols, 1092. V. Rollins, 468, 819, 1229. V. Young, 671. Union Ry. &c. Co. v. Kallaher, 104, 1068. V. Shacklet (119 HI. 232), 525, 527. V. Shacklett (19 Bradw. 145), 1071, 1089. Union Stockyards, &c. Co. v. Mon- aghan, 471. w. Rourke, 845, 858. Union Trust Co. v. Cuppy, 1000. United States Express v. Backman, 1160, 1185. V. Haines, 1192. V. Kountze, 1160. V. Root, 1188. V. Rusli, 1185. United States Manuf. Co. v, Stevens 855. United States Rolling Stock Co. v. Wilder, 639. Upham V. Marsh, 990. Uppinghouse t;. Mundel, 103. Upshare v. Aidee, 1186, 1189. Upton V. Vail, 316, 318, 320. Urquhart v. Ogdensburgh (91 N. Y. 67), 743, 746. V. Ogdensburgh (97 N. Y. 238), 962. Useful Manuf. Soc, State v., 959. Usher-t;. Severance, 309. Vale Mills v. Nashua, 426, 743, 751. Van Amringe v. Barnett, 989, 1001. Van Bergen v. Van Bergen, 429. Van Brunt v. Schenck, 391. Vance v. Erie Ry., 731. 1> Throckmorton, 1171, 1174, 1177. Vandenburgh v. Truax, 46, 142, 178, 501. Vanderheyden i>. Young, 781. Vanderlip v. lioe, 267. 710 Vanderslice v. Philadelphia, 606. Vanderwiele v. Taylor, 901. Van de Venter v. Cliicago City Ry., 1120, 1121. Vandorn v. New Jersey So. Rid., 802. Vanduzor v. Linderman, 223. Van Epps v. Harrison, 327. Van Gilder v. Chicago, &c. Ry., 1158. Vanhooser ». BerghoS, 713. Van Horn v. Burlington, &c. Ry., 1229. V. Freeman, 555. V. Kermit, 1153. V. People, 1240. Vankirk v. Pennsylvania Rid., 1082. Van Leuven v. Lyke, 1220, 1238. Van Ness n. Hamilton, 261. Van Ostran ». New York Cent. &o. Rid., 1101. Van Tassel v. Capron, 271. VantUburgh v. Shann, 948. Vanvactor v. State, 596. Van Vechten v. Hopkins, 309. Van Wickle v. Manhattan Ry., 665. Van Winter v. Henry, 743, 750. Varney v. Manchester, 1009. Vary j;. Burlington, &c. Rid , 526. Vasse V. Smith, 73, 565, 566. Vaughan v. Menlove, 445, 8.34. Va ghn V. Congdon, 209, 783. V. Law, 429. V. Missouri Pac. Rid., 1229. V. Scade, 1021. Veale v. Boston, 968. Veazie v. Moor, 953. Veeder v. Little Falls, 973. Veitch V. Russell, 708. Venard v. Cross, 424. Verdert!. Ellsworth, 431. Vermont, &c. Rid., Commonwealth v., 1092. Verner v. Sweitzer, 1057. V. Verner, 298. Verrall ». Robinson, 406. Viall V. Carpenter, 872. Vicars v. Wilcocks, 273. Vick V. New York Cent. &c. Rid., 665. Vicksburg v. Hennessy, 1012. Vicksburg, &c. Rid. v. Alexander, 1049. V. Howe, 1105. V. MoGowan, 1038. V. Phillips, 1271. ». Wilkins, 470. Victory v. Baker, 98, 102, 446, 828, 842, 845, 847. Viets ». Toledo, &c. Ry., 177, 683. Vilas, United States v., 1195. Villepigue v. Shular, 379. ViUers V. Monsley, 280, 282, 285. Vinal V. Core, 225, 226. Vinas v. Merchants Mut. Ins. Co., 728. Vincent v. Brooklyn, 743. WAL INDEX TO THE CASES CITED. WAS Vincett v. Cook, 996. Viuton V. Middlesex Rid , 1118. Virginia Elirman, The, 473, 522. Virtue v. Birde, 104, 459. Vogel V. Gruaz, 706. V. Now York, 605, 606. VoUmer's Appeal, 918. Vosburgh v. Lake Shore, &c. Ey., 649. Vose V. Grant, 56. Vredenburgh ». Hendricks, 209. Vrooman v. Lawyer, 122a. Wabash By. ». Forshee, 1229. 1'. McDaniels, 665. r. Savage, 1051. Wabash, &c. Ry. v. Central Trust Co., 445, 1043. V. Deardorfl, 675. ». Moran, 471. V. Rector, 1099. V. Shacklet, 1071. V. Thompson, 459. V. Wallace, 471, 1049. V. Weisbeck, 445, 459. Waddell v. Cook, 391. V. Simoson, 639. Wade V. Thayer, 611. V. Thurman, 319. Wadhurst v. Damme, 1239. Wadsworth v. Tillotson, 890. Waffle B. New York Cent. Bid., 902. Wagaman v. Byers, 266 Wagner v. Goldsmith, 150, 1222. B. Hanna, 867. Wait o. Green, 490. Waite V. North Eastern By., 578, 581. Wakefield v. Newport, 743, 765. Wakelin v. London, &c. By., 38. Wakeman v. Dalley, 324, 330. V. Robinson, 177, 498. Walcot V. Pomeroy, 794. Waldheim v. Sichel, 211. Waldhier v. Hannibal, &c. Bid., 678. Waldron v. HaverhiU, 743, 751, 763, 7B4. Walkenhauer v. Chicago, &c. By., 800. Walker v. Allen, 955. B. Brewster, 416, 421. 1>. Cronin, 364, .371. V. Davis, 72, 565. B. Decatur, 1018. B. Hallock, 786, 789. V. Homer, 146. B. Martin, 226. V. Matthews, 932. V. Beidsville, lOia , State v., 623. V. Wabash, &c. By., 1084 B. Wheeler, 938. Wallace v. Bennett, 285. V. Finberg, 614. Wallace v. Matthews, 1160. V. Merrimack liiver, &c. Co., 62. V. Morss, 565. V. New York, 977. V. St. Louis, &c. Bv., 1229. VVallard v. Worthman, 499, 522. Wallen v. McHenry, 954. Waller b. Dubuque, 743. V. South Eastern By., 647. Walling B. Potter, 1169. Wallis V. Mease, 1250. w. Morgan's La. &c. Co., 665. Walsh V. Mead, 996. B. Morse, 329. V. New York, 743. ». New York, &c. Bridge, 743, 768. V. Porterfield, 1175. B. St. Paul, &c. Rid., 680. Walter v. Selfe, 416, 426. Walters w. Chicago, &c. Eld., 578, 586. Walther v. Pacific Bid., 811. Walton V. Booth, 142, 716. V. New York Cent. Sleep. Car Co., 612. Wannamaker v. Burke, 851. Wanser v. Wvckoff, 235, 241. Wanstead v. Hill, 426. Wanzer i'. Howland, 783. Ward i: Blackwood, 199. V. Central Park, &c. Eld., 1119. V. Conatser, 505. V. Creswell, 1254. V. Eires, 938. B. Freeman, 781. V. Hobbs, 132. V. Jefferson, 177, 743, 968, 965. H. Neal, 924. B. New Haven, 973. , Eex v., 100. V. St. Louis, &c. By., 811. B. Weeks, 273. Wardell v. Fosdick, 819. Warden b. Old Colony Rid., 648. Warden of Fleet, Eex v., 187. Wardle b. New Orleans City Eld., 1120. Ware ». Gay, 443. Warner v. Bennett, 938. B. Paine, 300. B. Western North Carolina Bid., 1271. V. Western Transp. Co., 1188. Warr v. Jolly, 291. Warren v. Davis, 958. V. Matthews. 1254, , People v., 792. Wasliburn v. Sproat, 813. V. Woodstock, 968. Washington, The, 89, 473. Washington B. Baltimore, &c. Eld., 466. B. Small, 743, 966. Washington, &c. Eld. v. Gladmon, 1047. Wason V. Walter, 302, 805. 711 WEE INDEX TO THE CASES CITED. WES Wasserman v. Louisville, &c. Ry., 223. Waterbury v. New York Cent. &c. Kid., 1081. Waterer v. Freeman, 245. Waterford v. Oxford, 949. Waters v. Bay View, 1000. V. Wing, 1018. Watier v. Chicago, &c. Ry., 445, 1229. Watkins v. Peck, 891. Watson V. Avery, 773. V. Bioren, 867. V. Gray, 914. V. Kingston, 975. V. Muirhead, 705. V. Nicholas, 309. V. Philadelphia, 36. V. Poulson, 331. V. Reynolds, 351. V. Wabash, &c. Ry., 469, 1147. V. Watson (9 Conn. 140), 792. V. Watson (49 Mich. 540), 386. V. Watson (53 Mich. 168), .386. V. Watson (58 Mich. 507), 379. Watts V. Kelson, 869. 1). Kinney, 1279. V. Thomas, 1277. Waugh V. Waugh, 2H7. Waul V. Hardie, 629. Way V. Chicago, &c. Ey., 60, 1084, 1094. : V. Powers, 552, 565. Wayland's Case, 6U. Wayland v. St. Louis, &o. Ry., 1000. Weall «. King, 521. Weatherford v. Fishback, 315. Weatherston v. Hawkins, 127, 291. Weaver ». Devendorf, 788. V. Townsend, 240. V. Ward, 179, 195, 439, 501, 505, 507. Webb V. Beavan, 262, 266. V. Bird, 921. V. Cecil, 525. V. Harp, 68. V. Portland, &c. Rid., 1049. ». Portland Manuf. Co., 31. V. Rome, &c. Rid., 833. Webber v. Nicholas, 244. V. Piper, 647. V. Sparkes, 875. , State v., 593, 594. Weber v. Henry, 794. Webster ». Hudson River Rid., 1070. B. Lowell, 869. V. Stevens, 916, 917. Weckler v. First National Bank, 733. Wedgwood v. Chicago, &c. Ry., 645. Weed V. Case, 330. Weekes «. Cottingham, 1271. Weeks e. Holmes, 374. V. McMillan, 916. «. New York, &c. Rid., 1156. 712 Wehr V. Brooks, 1271. Weick 0. Lander, 39, 457. Weide v. Thiel, 1222. Weidner v. Rankin, 1271. Weightman v. Washington, 743, 746, 757. Weiher v. Meyersham, 386, 387. Weil V. Altenhof en, 262. V. Schmidt, 262. V. Schwartz, 325. V. Silveretone, 938. Weis n. Madison, 743, 751. Weisenberg v. Appleton, 964. V. Winneconne, 952. Weiss V. Oregon Iron, &c. Co., 890. Welch V. Durand, 142, 195. V. McAllister, 150, 848. «. Stowell, 431. V. Wesson, 64. Weld V. Chapman, 954. Weldon v. Harlem Rid., 612. Welfare v. London, &c. Ry., 1086. Wellington v. Downer Ker. Oil Co., 413. V. Gregson, 975. V. Wentworth, 406. Wellman v. Dickey, 990. Wells V. Beal, 800, 801. V. Coe, 680. 0. Cook, 331. V. Howell, 801, 1220. V. Kelsey, 401. Welsh V. Eakle, 277. V. Rutland, 743, 749. V. St. Louis, 605, 743. V. Wilson, 986. Welton V. Martin, 426. Welty V. Indianapolis, &c. Rid., 513. Wemple v. Hildreth, 338. Wendell v. New York, Cent. &c. Rid., 588. ». Pratt, 840. ». Troy, 758. Wennhak v. Morgan, 286. 304. Wentworth v. McDuffie, 928. 0. Rochester, 960. Wentz V. Bernhardt, 101. Wenzlick v. McCotter, 977. Werle v. Long Island Rid., 1106. Werner v. Citizens Ry., 513. Wert V. Sirouse, 379, 380. Wesley City Coal Co. v. Healer, 445. Wesson v. Washburn Iron Co., 424. West V. Druff, 57, 386. V. Emery, 77. V. Martin, 710. u. Moore, 565. V. Smallwood, 211. West Chester, &c. Rid. v. McElwec 1104, 1271. V. Miles, 1118. West Covington v. Freking, 989, 990. West Looe, Rex v., 738. WET INDEX TO THE CASES CITED. WHI West Mahanoy v. Watson, 43. West Orange v. Field, 997. West Philadelphia Pass. Ry. i-. Gal- lagher, 1119. Westbrook v. Mize, 519. Western, &c. Eld. v. Atlanta, 535. V. Bishop, 641, 644. i>. Blooniingdale, 1037. V. Meigs, 1037. V. Steadly, 1229. V. Turner, 1097. V. Wilson, 619. Western College v. Cleveland, 748, 753. Western Count. Manure Co. v. Lawes Cliem. Manure Co., 346, 347, 348. Western Md. Rid., State v., 686. Western Nat. Bank's Appeal, 914. Western News Co. o. Wilmarth, 222. Western Union Tel. v. Adams, 1809. V. Blanchard, 1209. V. Brown (108 Ind. 538), 1205. V. Brown (58 Texas, 170), 1209. V. Buchanan, 1205, 1209. V. Carew, 1206, 1208. V. Cohen, 1206, 1209. V. Edsall, 1210. V. Eyser, 1002. V. Fatman, 1205, 1207. V. Ferguson, 1205. V. Fontaine, 1206, 1207. V. Graham, 1207, 1209. V. Hamilton, 1205. V. Harding, 1205. V. Harris, 1209. V. Jones, 1210. V. Kinney, 1205. V. McDaniel, 1207. V. McGuire, 1210. V. Meek, 1206, 1209. V. Meredith, 1205, 1210. V. Mossier, 1205. ». Neill, 1209. V. Pendleton, 1205. V. Qninn, 471. V. Reed, 1205. V. Reynolds, 1207. V. Scircle, 1207. V. Shotter, 1209. V. Steele, 1205. V. Trissal, 1207. V. Tyler, 1209. V. Valentine, 1207. Westerwelt v. Lewis, 783. Westfleld v. Mayo, 535. Westliche Post Assoc, v. Allen, 986. Weston V. Alden, 890. V. Arnold, 914. V. Carr, 929. V. Sampson, 1254. Wetherbee v. Green, 938, 939. V Marsh, 29.3. Wetmore v. Mellinger, 244. Wetmore v. Tracy, 430. Wettor V. Dunk, 994. Weyerhauser v. Dun, 481. Weymouth v. Gile, 943, 1220. Wliarf V. Roberts, 330. Wheatley v. Baugh, 887. Wheatly v. Mercer, 743. Wheaton v. North Beach, &o. Eld., 1064. V. Whitteraore, 210. Wheeler v. Cincinnati, 743, 761, 762. V. Clark, 869. t; Lawson, 929. V. Meshinggomesia, 50. V. Nesbitt, 289, 242. V. Wason Manuf. Co., 639. V. Westport, 972. V. Whiting, 209. Wheeler, &c. Manuf. Co. v. Boyce, 731, 734. Wheelock v. Boston, &c. Eld., 1086. V. Wheelwright, 76, 401, 405. Wheelwright v. Boston, &e. Eld., 1041. V. Depeyster, 932. Wheless v. Second Nat. Bank, 731. Whipple V. Cumberland Manuf. Co., 31. V. Fuller, 244. V. Walpole, 952. • Whirley v. Whiteman, 468, 526, 583. Whitaker v. English, 522. V. Forbes, 1279. V. Hudson, 426. V. Warren, 645, 554. White's Case, 1168. White V. Boston, &c. Rid., 1090. V. Boulton, 1129. V. Brantley, 929. V. Carroll, 298, 308. V. Chapin, 894. V. Charleston, 758. V. Chesapeake, &c. Ey., 1080. V. Conly, 43. V. GriflSn, 30. V. Henry, 374. V. Lang, 63, 64. V. Maxcv, 1271. V. MerriU, 315. V. Murtland, 380. V. Nellis, 382. V. Nicholls, 257, 282. V. Nonantum Worsted Co., 680. V. Port Huron, &c. Ry., 938. V. St. Louis, &c. Eld., 1229. ». Spettigue, 931. V. Western Union Tel., 1209. V. Winnisimmet Co., 954. Whitehead v. Mathaway, 527. Whitelaw v. Memphis, &c. Rid., 657, 683. Whiteley v. Adams, 303. V. Pepper, 611. Whitemore v. Haroldson, 1172. 713 WIL INDEX TO THE CASES CITED. WIL Whitfield B. Le Despencer, 1199, 1200. V. Soutli Eastern Ry., 728. Whiting u. Jolinson, 'J28. Whitman v. Groveland, 952. Whitmore v. Bowman, 954. V. Steamboat Caroline, 1156. Whitney v. Allaire, 319. 0. Bartholomew, 419, 426. 1). Janesville Gazette, 255, 257, 282, 306. V. Lee, 867. V. Peckham, 242. V. Pullman's Palace Car, 1159, 1162. 1'. SlauBOn, 406. V. Turner, 522. Whittaker v. Coombs, 675. Whittemore b. Weiss, 257. Whitten v. Fuller, 402. Whitwam v. Wisconsin, &c. Eld., 1024. Wliitwell V. Wells, 934, 935. Wicker v. Hotchkiss, •236, 490. Wickersham v. Orr, 914. Wickes ». Caulk, 773. Wicks V. Fentham, 145. Wieman v. Mabee, 302, 305, 309. Wier's Appeal, 909. Wilbor V. Williams, 294. Wilbraham v. Snow, 403. Wilby V. Elston, 267. Wilcox V. Chicago, 743, 762. Wild V. Odell, 236. V. Paterson, 743, 749. Wildee v. McKee, 3-59. Wilder v. De Con, 71, 950. V. Maine Cent. Kid., 1229. V. Stanley, 629. Wiley V. Campbell, 266. ». West Jersey Kid., 1031. Wllford V. Grant, 535. Wilkerson v. Corrigan Consol. St. Ry., 443. Wilkes V. Hungerford Market, 993. Wilkins v. Earle. 1176. Wilkinson ». Hull, &c. Co., 748. Willamette Iron Bridge v. Hatch, 953. Willard p. Cambridge, 71. V. Mathesus, SOO. U.Rice, 938. V. Sherburne, 960. Willev V. Ellsworth, 960, 973. Wm. F. Babcock, The, 602. Williams's Case, 345. Williams w. Adams, 787. 0. Bates, 319. V. Chicago, &c. Ry., 140, 1041. V. Churchill, 683. B. Delaware, &c. Rid., 469. V. Ellis, 1008. K. Esling, 30. V. Gordon, 257, 261. ij. Grand Rapids, 977. 714 Williams b. Grealy, 1148. B. Gunnels, 288. B.Hill, 274. B.Ives, 394. V, James, 871. B. Karnes, 282. w. Leyden, 1012. B. McClanahan, 939. B. Moray, 1236. V. Morris, 822. B. Northern Pac. Rid., 809. V. Powell, 793. B. Safford, 162. V. Texas, &c. Ry., 577. V. Townsend, 199. 1: Tripp, 743, 751, 993. Williamson v. Lock's Creek Canal, 892. Willis V. Legris, 740. f. Maclachlan, 783. — - V. Oregon Ry. &c. Co., 665, 666. Willoughby p. Jenks, 989. Wills V. Noyes, 232. V. Walters, 807. Willy V. Mulledy, 132, 850. Wilmarth v. Woodcock, 417, 428. Wilson V. Arnold, 783. B. Atlanta, &c Ry., 1028. B. Brett, 441. B. Cottman,273. B. Dubois, 347, 350. ». Eggleston, 326. B. Fitch, 805. V. Garrard, 549. V. Grand Trunk Ry. (56 Maine, 60), 1153. V. Grand Trunk Ry. (57 Maine, 138), 1158. V. Green, 608. 0. Guttery, 209. B. Hamilton, 954. B. ^ew Bedford, 839. u. New York, 746, 748. 0. Noonan (23 Wis. 105), 305. V. Noonan (27 Wis. 598). 611. V. Noonan (35 Wis. 321), 281, ■306. V. Norfolk, &c. Rid., 1229. B. Outlaw, 490. V. Peto, 526. w. PeTerly, 612. V. Russ, 705. V. St Louis, &c. Ry., 1229. B. Shepler, 57, 386. V. Shiveley, 172. 7). Shulkin, 954. , State v., 954. V. Stewart, 622. V. Tatum, 263. V. Trafalgar, &c. Gravel Road, 1013. V. Tucker, 209. woo INDEX TO THE CASES CITED. WRI Wilson V. Wheeling, 605, 724. V. White, 112, 137. V. Willimantic Linen Co., 665. Wilt V. Vickers, 555. Wilton «. Middlesex Kid., 1119. V. Weston, 1240. Wiltshire v. Sidford, 914. Wimbledon, &c. Conserv. v. Dixon, 871. Winbigler v. Los Angeles, 749. Winchester >:. Capron, 958, 984. Windsor v. Oliver, 272. Wing, Commonwealth v., 132 V. Hall, 822. V. Railey, 9.38. V. Wing, 265. Wingate v. Waite, 783. Winger v. First Division, &c. Eld.. 811. Winkler v. St. Louis, &c. Ry., HOI. Winn V. Abeles, 906, 907, 910. Winslow V. Hathaway, 209. V. Perquimans, 740, 743. Winston v. Raleigh, &c. Eld., 1229. Winter v. Sumvalt, 262. Winterbottom v. Derby, 1002. V. Wright, 73. Wisby V. Bonte, 958. Wisconsin Telepli. w. Oshkosh, 1^13. Wise V. Joplin Rid., 1027. Wissler V. Hershey, 872. Wiswell V. Minogue, 869. Withers v. Buckley, 119. Witt V. New York, 751. Witter V. Harvey, 989. Witthouse v. Atlantic, &c. Rid., 811. Wittich V. Pensacola Bank, 33, 491. Wodell V. Coggeshall, 375. Wohlfahrt w. Beckert, 445. Wolcott V. Hall, 293. Wolf V. Kilpatrick, 177, 530. V. Trinkle, 254. V. Western Union Tel., 1210. Wolfe V. Covington, &c. Rid., 982. Womack v. Western Union Tel., 1206. Wonder v. Baltimore, &c. Rid., 644, 665, 666, 669. Wood V. Amory, 332. V. Andes, 101.3. 1: Clapp, 709. V. Detroit Street Ry., 614, 1021. V. Graves, 210. V. Hewett, 813. V. Independent School Dist, 603. V. Lake Shore, &c. Ey., 1106. V. La Rue, 943. V. Laycock, 226, 247. V. Luscomb, 1017. V. New Bedford Coal Co., 665. V. Pierson, 936. V. Veal, 948. Woodard v. New York, &c. Eld., 1271, 1273. Woodbridge v. Conner, 522. V. Delaware, &c. Rid., 1051. Woodbury a. District of Columbia, 966. Woodman v. Hubbard, 76, 405. V. Tufts, 30. Woodmansie v. Logan, 244. Woodruff w. Halsey, 929. V. Neal, 990. V. Woodruff, 194. Woodruff Sleeping, &c. Coagh i;. Dielil, 1162. Woods V. Boston, 442. y. Devin, 1151, 1156. V. Jones, 466, 467. Woodward i\ Anderson, 386. U.Bali, 716. V. St. Louis, &c. Ey., 731. , State v., 824. V. Washburn, 206, 208, 216, 365, 599. V. Worcester, 819. Woodward Jion Co. v. Jones, 680. Woodworth n. Mills, 248. V. Eaymond, 872. V. St. Paul, &c. Ry., 675. Woolery v. Louisville, &c. Ry., 1108. Wooley V. Batte, 56. Woolf V. Chalker, 1225, 1235, 1237, 1238, 1239. Woolfolk V. Macon, &c. Rid., 442. Woram v. Noble, 859. Worcester, Rex v., 519. Word V. Vance, 565. Worden v. New Bedford, 743, 750, 755. Workman v. Worcester, 36. Works V. Stevens, 265. Worley v. Columbia, 743, 761. Wormley v. Gregg, 1234, 12.36. Wormwood v. Waltham, 1020. Worth V. Gilling, 1234. w. Northam, 9.39. Wozelka v. Hettrick, 257, 288. Wray v. Evans, 602. Wren v. Weild, 345, 347, 348. 351. Wright V. Boston, &c. Rid., 1048. V. Clark, 1240. , Commonwealth v., 129. V. Compton, 611, 831. V. Defrees, 519, 777. V. Hanna, 236. V. Hardy, 712. V. Lathrop, 521. V. Maiden, &c. Eld., 570, 579, 581. V. Moore, 420. V. Paige, 266. V. Eamscot (1 Saund. 84), 945, 1239. V. Saunders, 1002. V. Stowe, 31, 36. V. Tenipleton, 1021. 715 YOL INDEX TO THE CASES CITED. ZUL Wright 1-. Wilcox, 526, 614 V. Wilmington, 440, 447. V. Wrainscott (1 Lev. 216), 1239. Wrinn v. Jones, 1017. Wurts V. Hoagland, 92. Wyandotte v. White, 468. Wyant o. Smith, 262. Wyatt V. Buell, 300. w. Citizens Ry., 586. V. Harrison, 90B, 912. V. Williams, 1268. Wvekoffj;. Southern Hotel, 1181. Wyman v. Northern Pae. Kid., 1082, 1097. Wyndhara's Case, 934. Wyndham v. Wycombe, 51. Wynkoop v. Burger, 873. Wynn, Beg. v., 403. Yager v. Atlantic, &c. Rid., 66S. Yahn v. Ottumvfa, 459. Yale V. Saunders, 401. Yarborough v. Bank of England, 727. -; Rex v., 172. Yarmouth v. France, 689. Yarnall v. St. Louis, &c. Ry., 513. Yates V. Hathaway, 989. V. Lansing, 296, 781, 782, 783. 0. Squires, 612. Yazoo, &c. Rid. v. Brumfield, 1229. Yeager v. Carpenter, 822. V. Tippecanoe, 743, 766. Yearsley ». Heane, 211. Yeates v. Reed, 31, 606. Yeaton v. Boston, &c. Rid., 675. Yeomans v. Contra Costa Steam Nav. Co., 658. Yerkes v. Sabin, 954. Yik Hon v. Spring Valley Water- works, 464. Yolo V. Sacramento, 424. 716 Yopp, State v., 1008. York V. Johnson, 305. V. Spellman, 966. Yorke v. Grenaugh, 1171, 1181. Yorkshire W. R., Rex »., 952. Yorton v. Milwaukee, &c. Ry., 1082. Young V. , 162. V. Bennett, 293. V. Buckingham, 952. V. Charleston, 743, 744, 75& V. Clegg, 281. V. Courtney, 244. V. Covell, 316. V. Detroit, &o. Ry., 1043. V. Hannibal, &c. Rid., 1229. ». Herbert, 781. . V. Macrae, 347. V. Miles, 938. V. Miller, 266. V. New York Cent. &e. Rid., 683. V. St. Louis, &c. Ry., 1229. V. Vaughan, 499. V. Western Union Tel., 1210. Youngstown v. Moore, 997. Yznaga Del Talle v. The Richmond, 1166. Zabriskie v. Smith, 320. Zeigler v. Danbury, &c. Rid., 665. V. Northeastern Rid., 1049. Zeliff V. Jennings, 261, 266. Zerfing v. Mourer, 379. Zettler v. Atlanta, 1013. Ziegler v. Powell, 245. Zier V. Hofflin, 37, 44, 532. Zigefoose v. Zigefoose, 869. Zimmerman v. Hannibal, &c. Rid., 466. V. McMakin, 264. Zuckerman v. Sonnerschein, 257, 306. Zulkee v. Wing, 629. INDEX OF SUBJECTS. The Italic Lines — indicate tliat the searcher should turn to the body of the bock, and in the section heads find the sort of particulars given in the other index-Iiues. The Figures — denote the sections. ABANDONED GOODS, law of, 935. ABANDONING CARS, ends relation of passenger, 1092. ABANDONMENT, in insurance law, what, 935. ABATEMENT, (See Injunctiok.) Of nuisance, full, 429-432, 1323. how, of nuisance, by city, 754. ABDUCTION, (See Seduction.) of servant, rights of master, 365. of minor daughter, 555. ABEYANCE, title to goods in, 399, 400. "ABORTIONIST," word, in slander, 264. ABOVE-GROUND WATERCOURSES, termed simply watercourses, 888 ; defined, 889. ABROAD, (See Extra-territorial.) enforcing rights acquired, 67. ABSENCE, servant's contributory negligence in, of master, 632. ABSENCE OF JURISDICTION, distinguished from excess of it, 783. ABUSE OF LICENSE, doctrine of, 391-394. ABUSE OF PROCESS, (See Process.) actionable, 224; when, 225-227; arrest by, 209-211. ABUTTER ON RAILROAD, precautions of, as to fires, 1080. ABUTTERS ON STREETS, (See Public Way.) Rights and liabilities, of , full, 989-1001. rights of, against persons using street not for travel, 1011. ACCEPT PASSENGER, duty of street cars to, 1118; of other carrier, 1058. ACCEPTANCE BY CARRIER, of baggage, 1158. ACCEPTING, by corporation, way built by private person, 959. 717 ACT INDEX OP SUBJECTS. ACCESS, (See Ingress and Egress ) abutter on street may have, to his buildings, 992. ACCIDENT, ACCIDENTS, (See Common — Inevitable.) not assault by, 195. loss from judicial proceeding as, 223. inferring negligence from, 443. when actionable or not, 447. inflicting unmeant harm through, 501. master not guarantee servant against, 644. to workmen and others in buildings, 851. railroad train delayed by, 1059. ACCIDENTAL HURT, from missile meant for another, 202. ACCIDENTAL INJURY, distinguished from wilful, 142, 146. ACCIDENTAL TRESPASS, actionable, 101. ACCOMPANYING PASSENGER, railroad's responsibility to one, 1109. ACCRETION, of soil, law of, 172. ACCUMULATE PROPERTY, right to, 12. ACCUMULATING ON OWN LAND, what escaping does damage, 839, note, 841. "ACCUSTOMED TO BITE MANKIND," permitting animal, at large, 1225, 1230, 1234. ACQUITTAL, effect of, on malicious-prosecution suit, 229. as to want of probable cause, 242. ACT, ACTS, (See Unlawfol Act.) falsehood by, in deceit, 332. contribution by, in tort, 522, 525. ACT OF GOD, (See Necessity — 'Wind.) Doctrine as to the, full, 166-172. insanity a form of the, 505, .507. water escaping through the, 841. carrier not insure baggage against, 1152. ACT OF NEGLIGENCE, concerning the, 444. ACT OF TRAVEL. (See Travel.) ACT OF WRONG, (See Intent.) must be of standard magnitude, 36. ACTED ON, in deceit, falsehood meant to be, 331. ACTING, What, of defrauded person, in cheat, fM, 333-837. ACTION, (See Suit.) Form of, as excluding right, full, 66-69. no, where to give damages would violate law, 341. civil, depending on indictability, 355, 356. some common-law forms of, 389, 396-398. 718 INDEX OP SUBJECTS. AGE ACTION AT LAW, for obsti-uoting private way, 875. ACTION OVER, city's, against one for whose injuries to way it has paid damages, 1003. ACTIONABLE, as to what wrongs are, 487. ACTIONABLE PER SE, slanderous words as, 254, 257, 271, 284. ACTIVITY, right of, 11. ACTOR, conspiracy to ruin, by hissing, 359. ACTUAL DAMAGE, (See Damage.) or not, in slander, 270-273, 275. must be, in deceit, 338. ACTUAL MALICE, (See Malice.) in privileged communications, 306. ADAPTABILITY, of the falsehood, in deceit, 828. ADDRESS, removing judges by, 780. of telegraph message, too indefinite, 1207. ADJOINING BUILDING, (See Bdilding.) injuring, by excavations, 910. ADJOINING LAND, whether owner of private way pass over, 162, 870. traveller on public way, when, 162. ADJUDICATION, (See Conversion — Judicial Decisions.) o-wnership changed by, 399, 408. ADMIRALTY, damages, whether apportioned in, 460, note, 473. ADULT, rights of, allowed to infant, 582. ADULTERY, oral charge of, as slander, 267; special damage, 274, ADVERSE, use must be, in prescription, 891. ADVERTISED TRAIN, liability of railroad for not running or stopping, 1059. ADVICE, gratuitous, injury from, 27. ADVICE OF COUNSEL. (See Attorney-at-Law — Counsel. ) as rebutting malice, 236. AFFIDAVIT, libel in, 299. AGE. of majority, 545. of capacity for crime, 561. for contract, 562; for torts, 563, 564. for. maintaining action of tort, 570. for contributory negligence, 586, 587. of infant as to care required, 589. AGENCY, not disclosing, in hiring workman, 694. AGENT, AGENTS, (See Master and SIebvant — Principal AND — Substitutes and.) The, of municipal corporations, full, 760-764. not delivering to, until authority ascertained, 406. 719 ANO INDEX OP SUBJECTS. AGENT, AGENTS — continued. master's, for non-assignable daties, 647. defined, 692 ; compared with servant, 692. personal liability of, for torts, 695. knowledge of, as knowledge of principal, 1211. AGENTS OF RAILROAD, persons injured in obeying, 619, 620. AGGRAVATION OF DAMAGES, in slander, 275, 310. AGREEMENT. (See Contract.) AGRICULTURE, setting fires in, 834. AIDER, (See Combinations.) liable as doer, 39. AIR, (See Light and Air.) corrupting the, on own land, 829. impairing quality and obstructing flow of, 921. ALIGHTING, (See Discharging Passengers.) of railroad passengers, 1100, 1101. from street car, 1122. ALL, distinction between, and particular municipalities, as to duties, 755-757. ALLUREMENT. (See Seduction.) ALTERING MESSAGE, by telegraph company, to injury of receiver, 1212. " ALTERS HIS CONDITION," in deceit, 338. AMERICAN LAW, improved from English, 907. AMUSEMENTS, (See Pastimes.) licensing public, 1261. ANIMAL, ANIMALS, (See Bull — Cattle — Cow — Dog.) Injuries by and to, full, 1215-1232; namely, transportation of, 1217- 1219; rights and liabilities of owners, 1220-1229 ; wild animals, 1230, 1231. servant injuring master's, liable, 629. fences for protection against domestic, 800. suffering one's domestic, on another's land, 819. injured while trespassing, 845. ^ trespassing, how deal with, 943, 946. right to kill, in -defence of property, 945. killing dog in defence of, 1239. ANOMALOUS, position of dogs in the law is, 1233. ANOTHER'S, go6d motives not justify use of what is, 101. ANOTHER'S EFFECTS, putting off, from own land, 855. ANOTHER'S PROPERTY, appropriating, through mistake, 13. ANOTHER'S REALTY, (See Land.) One's use and abuse of, full, 819-825. 720 INDEX OP SUBJECTS. ASS ANSWER TO QUESTION, defamation by, 291, 304. ANTE-REVOLUTIONARY, holdings of English courts, 907. APOTHECARY, (See Physician.) Professional liabilities of, full, 716. not liable the same as physician, 710. APPAREL, may be traveller's baggage, 1156. APPLIANCES, (See Machinery — Tools.) Master's duty to provide servant with suitable, full, 644-647, 683. become unsafe, servant's duty to master, 677, 678. railroads to keep, in repair, 1024. APPORTIONED, whether, damages in tort, 522. APPORTIONMENT, (See Combinations — Damages.) of damages, when, 460, note. APPRENTICE, (See Seduction.) enticing or hiring away, 369 ; no action by, 369 ; turning ofl, 369. APPROACHES, to buildings, safety of, 852. to railroad station, how, 1086, 1100. APPURTENANT, concerning, and private ways as, 867. owner not make way in gross to be, 868. ARBITRATORS, not Uable for official acts, 788. ARCHING OVER, private way, 874. ARGUMENTS, of counsel, imperfections in, 908. ARMS. (See Firearms.) ARREST, (See Malicious Arrest — Sunday Arrest.) not in form right, procurer answerable for, 101. officer may enter on land to make an, 163, note. how make, what constitutes an, 214. when, false imprisonment, 209-214. as damage in malicious prosecution, 227. on void warrant, whether false imprisonment, 228. procuring, as malicious prosecution, 243, 245. of wrong person, liability for, 499. lawyer's liability for directing illegal, 707. officer protected in executing valid process of, 792. not in arresting wrong person, 795. whether in dwelling-house, 816. ARTICLES OF PEACE, what is end of prosecution on, 249. ARTIFICIAL BEING, corporation as an, 719-721. ARTIFICIAL POND, water escaping from, doing damage, 839. right to divert watercourse to, 890. ARTIST, seducing, from engagement, 370. ASSAULT, actionable without battery, 417. may be committed by infants, 565. • on railroad passenger, 1068. 4a. 721 AUD INDEX OP SUBJECTS. ASSAULT — continued. on passenger to compel payment, 1095. in wrongfully ejecting passenger, 1097. on passenger by servants of carrier, 1138. ASSAULT AND BATTERY, (See Battery — Fighting.) Law of the civil wrong of, full, 186-204; namely, names, and civil or criminal, 186, 187; what constitutes, 189-197; the defences, 198-200; rights of third persons, 201-203. on servant, as injury to master, 371. is ti-espass to the person, 389. by arresting or striking wrong person, 499, 501. by railroad employees, liability for, 613. corporation may commit, 725. inflicted out of State or country, 1277. ASSENT. (See Consent.) ASSESSORS, responsibility of, for their valuations, 788. ASSIGNABLE, (See Non-assignabt.e.) rule as to what duties of master are, 665. way in gross not, 868. whether railroad ticket is, 1077, 1084. ASSIGNABLE DUTIES, (See Master and Servant.) Of master to servant, full, 658-660. ASSIGNING, methods of, master's duties to servant, 660. ASSISTANCE, right to, in defence of propei-ty, 946. ASSISTING. (See Combinations.) in tort, creates responsibility, 39. ASSOCIATIONS. (See Voluntary Associations.) ASSUMPSIT, for money got by deceit, 313. ASSUMPTIONS OF RISKS, (See Master and Servant.) By servants, doctrine of, full, 674-678. AT LARGE, permitting vicious animals to be, 1225, 1230. ATMOSPHERE, what impairing condition of, nuisance, 416. ATTACHMENT, (See Levy — Mamcious Prosecution.) oflBcer protected in executing valid process of, 792. innkeeper's lien on goods which are exempt from, 1181. ATTEMPT, wrongly termed conspiracy, 353, 355. ATTEMPT TO CHEAT, not actionable, 318. ATTORNEY, warning intending purchasers, 351. ATTORNEY-AT-LAW, (See Lawyers.) imputing misconduct to, as libel, 281. whether libel by, in his professional duties, 300. ATTRITION AND ACCRETION of soil, law of, 172. AUDIENCE, how, at theatre or meeting, behave, 1263. 722 INDEX OP SUBJECTS. BAR AUTHOR. (See Copyright.) AUTHORITY, master liable for acts within scope of servant's, unauthorized, 609 611. railroad's'servant acting within apparent, 1067, 1068. AUTHORIZATION OF LAW, (See Law.) takes away trespass to land, 819. AUTHORIZED, no damage for what plaintiff has, 476. AUTHORIZED OR NOT, (See Master and Servant.) DistincHon of, as to master's liability for servant's torts, full, 608-616. AUTOMATIC FORCE, protecting property by, 846, 847. AWNING, injuries from forbidden, 138. unsafe, over sidewalk, 971. * injuries from an insecure, 977. AXIOMS OF LAW, view of some, 54. BAD FAITH, element of, in deceit, 330. BAGGAGE, (See Guest — Inn.) Law of, full, 1150-1163; namely, general doctrine, 1151-1153; specific questions, 1154-1162. whether innkeeper responsible for goods not, 1176. BAGGAGE CAR, passenger riding in, 1106. BAGGAGE MASTER, duty of, and how he binds road, 1154, note. acceptance of baggage by, check of, 1158. BAGGAGE AND MERCHANDISE, distinguished, 1156. BAIL, not discharging on, tendered, 210. discharge on, as ending prosecution, 249. BAILEE, (See Carrier — Hired — Hirer — Warehouseman.) of baggage, in gratuitous passenger carriage, 1153. when innkeeper only ordinary, of guest's effects, 1180. whether telegjraph company is, 1206. BAILMENT, breach of, tort or contract, 75. conversion by, 397. what a conversion of goods under, 405. infant's liability under, 567. BALLOON, descending from, on another's land, 819. BANK, whether, liable for its notary's neglect, 481. BANKER, dishonoring depositor's check, 491. BANKRUPTCY, malicious prosecution of proceedings in, 245, note. BARGAIN, (See Contract.) when making good, actionable, 316. BARN, parcel of dwelling-house, 816. 723 BIH INDEX OP SUBJECTS. BARRISTER, (See Lawyers.) rights and liabilities of, 704. BARS, whether right to place, across private way, 874. BASTARD CHILD, begetting, as damage in seduction, 3g2. BASTARDY, maintainable against infant, 565. BATTERY, (See Assault and Battert.) defined, 190; instances, 192. on minor child, 555. BAWDY-HOUSE, (See Nuisance.) when, actionable though licensed, 116. letting house for, 116. nuisance to neighboring houses, 421. BAY-WINDOW, over street, as to fee owner, 417. BEARS, city permitting, in street, 748. BEE-TREE, effect of marking a, 1250. BEES, (See Animal.) domesticated and wild, rights and wrongs as to, 1250. BELATED CARS, traveller's right to ride on, 1080. BELIEF, (See Knowledge.) of editor, in truth of libel, 129. not probable cause for prosecution, 241. expressing want of, in slander, 276. in truth of libel, eSect of, 288, 291. of privileged occasion, in libel, 303. statement contrary to, in cheat, 330. BELIEVED, representation must be, in cheat, 335. BELIEVING, What the, in deceit, full, 333-337. BELL, railroad neglecting to ring, 1026. BENEFICIAL TRADE, nuisance from, 418-421. BENEFIT, trespass on land actionable though confening a, 819. BESIDE WAY, dangerous things, injuring traveller, 972, 977. BEST, whether master must provide, machine, 646. BEYOND DESTINATION, (See Travelling.) raikoad carrying passenger, 1068, 1078, 1081, 1100, 1101. BICYCLES, (See Velocipedes.) whether allowable in streets, IOCS; statutes as to, 1008. BILL IN EQUITY, (See Equity — Injunction.) for obstructing private way, 875. BILL NOT FOUND, as end of prosecution, 249. BIRD, BIRDS, (See Animal.) fences not for protection against, 800. is an animal, 1244. 724 INDEX OF SUBJECTS. BEE BIRTH OF CHILD, as damage in seduction, 382. BLACKENING REPUTATION, libel as, 285. BLACKSMITH'S SHOP, whether, nuisance, 426. BLASTING ROCK, right of, on own land, 831. BLIND PERSON, going on streets without a guide, 1021. BLINDLY MISLED, being, in deceit, 337. BLOCKADE, nominal breaking of, under stress of weather, 168. BLUNDERS, (See Judge.) judicial, concerning, 39, note, 280, note, 839 and note, 843, note, 908. 976, note, 1211. BOARD OF HEALTH, (See Health.) authorities relating to, 768, note. BOARDER, at inn, whether gutet, 1171. BOARDING-HOUSES, (See Inn.) Law qf,full, 1182. taking children to, having contagious disease, 414. BOARDING-SCHOOL, (See Teacher and Pupil.) principal of, in loco parentis to child, 592. BODY, what the corporate, 720; illustrated, 720, note, 722, note. of municipal corporation, what, 788. BOOKS, (See Immoral Book— Jurist Works.) may be traveller's baggage, 1156, note. BOTANIC PHYSICIAN, liabUities of, 710. BOUNDARY, servant overstepping, and doing damage, 611. BOX, water oolleeted in, escaping, 838. BOY CHASED INTO STORE, liability for accident from, 46. BRAKEMAN, (See Servant.) kicking trespasser, road liable or not, 613. inviting one to jump, whether road liable, 619. judging of fitness of brakes, 678. BRAKES, railroad cars to have suitable, 1024. BRANCH OF GOVERNMENT, municipal corporation as a, 749, 758, note. BREACH OF CONTRACT, (See Contract.) bringing about, by deceit, 339. BREACH OF LAW, courts cannot enforce attempted, 54. BREACH OF PEACE, (See Peace.) as crime, as civil wrong, 196, 197. in abating nuisance, 431. one's committing, on another's land, 825 committed in resisting trespass, 946. " BREACH OF PRIVILEGE," (See Contempt.) meaning of, 775. 725 BUR INDEX OP SUBJECTS. BREAKING FENCE, (See Fence.) liability of one for, another's, 805. BRICK-LAYER, dropping brick, 440. BRICK MANUFACTORY, whether, nuisance, 426. BRIDGE, (See Ferry — Highway. ) injuries to street-abutters in building, 120. injured by cloud-burst, doing mischief, 170, 1103. over street, by railroad, 530. liability of railroad to servant as to, 649. meaning and law of, as part of public way, 952, 953. by whom and how build, over navigable waters, 953. whether, must have railing, 973. in country, required strength of, 975. falling, while undergoing repairs, 1103. BRINGING ON LAND, what escaping causes damage, doctrine of, 839, note. BRINGING SUIT, (See Suit.) without authority, 488. BROKEN RAIL, liability for injuries from, 1103. BUILD HIGHWAY, what person or corporation, 959. BUILDERS, precautions by, against accidents, 440. BmLDING, BUILDINGS, (See Adjoining— Erection— Re- pair — Structure.) And (heir protection in law to persons and things in them, full, 813-818. obstructing another's view by, 103. destroying, to arrest conflagration, 126. in highway, nuisance, 424. precautions and safeguards by persons erecting, 440, 526. presumption of negligence from burning, 443. negligently constructed, 483. liability of contractor or owner in taking down, 603; in altering, 607. responsibility for imperfect staging, 649, 654. one's, falling on another's land, 843. insecure, breaking down and doing damage, 849. how one must keep his, for safety of persons therein, 851. over private way, when and how permitted, 874. whether distinguishable from land as to lateral support, 906-908. on street, unsafe and doing damage, 996. law of road as to a moving, 1016. BUILDING AS NUISANCE, abatement of, 431. BULL, (See Animal.) killing, in self-defence, 106. BURDEN OF PROOF, (See Presumption.) in negligence cases, 443. of contributory negligence, 470. 726 INDEX OP SUBJECTS. CAR BURGLAR, setting spring-guns for, 847. BURN, right to, own goods, 102. BURNED, carrier responsible for baggage, 1152. guest's effects at inn, 1173. BURNING PROPERTY, to prevent enemy taking it, 161. BURSTING BOILER, liabUity for, 832. BUSINESS, (See Office — Pkofession — Trade — Unlawful — Useful Trades.) Oral slander in, full, 261, 270-272. duty to be in — competing, 103. defamation injuring one in his, actionable, 254. rights in managing own, 351. seduction in pursuit of, 371. right to regulate, by rules«and usages, 1072. innkeeper not provide rooms for, 1168, 1176. BUSINESS CORPORATIONS, (See Corporations.) Law of, full, 735-737. BUSINESS CREDIT, (See Credit.) injuries to, in malicious prosecution, 245. BUSINESS INJURIOUS, railroad not carry one on, to road, 1061. BUYING, wrong of, unauthorized, 929. BY-LAWS, (See Municipal By-Laws.) for clearing sidewalk of snow, 137. municipal corporations make, responsibility for, 744. of railroads, 1072. CALLER AT HOUSE, (See Dwelling-house.) rights of, 823, 824. CANALS, are highways, 956. CANDIDATES FOR OFFICE, communications about, are privileged, 305. CANDLE MANUFACTORY, whether, nuisance, 426. CANNON, (See Noise.) city not liable for injury from discharge of, 752. CAPITAL, legislative attempt to compel, to benefit labor, 690. CAR. (See Cars — Railroad Car.) CAR-SEAT, traveller leaving, with parcel on, 1159. CARE, CAREFULNESS, (See Degree of — Negligence — Protection.) in exercising a right, 104. correlate of negligence, 438. master's duty of, to servant, 683. should be pi-oportioned to the dangers, 840, 843. 727 CAB INDEX OP SUBJECTS. CARE, CAREFULNESS — continued. what, of thing found, 937. degree of, in using public way, 1013. what, required from railroad, to trespassers on track, 1036. the, in crossing railroad track, 1010. what, required of railroad passenger carrier, 1064. due by railroad to what persons on cars, 1094. what, in street-car travel, 1116. degree of, from passenger carrier by coach, 1129. of passenger's baggage, what, 1152. degree of, required of telegraph, 1206. what, in keeping wild animals, 1230. degree of, as to dog, 1285. CARE OF INFANT, (See Pakent and Child.) Contributory negligence of person having, full, 577-583. , CARELESS DISOBEDIENCE, master's liability for servant's, 614. CARELESS DRIVING, one's responsibility for, by servant with him, 1069. ' CARELESS INJURIES, (See Negugenck.) Doctrine of, full, 148-154. CARELESSNESS, (See Care.) in doing lawful thing, actionable, 179. in parting men and dogs fighting, 181. CARMAN, whether, servant, 603. CARRIAGE, CARRIAGES, private way for, not necessarily'such for cattle, 871. abutter no right to have, in street, 991. ordinary, and cars, comparative rights of, 1015. delivery of traveller's, to innkeeper, what, 1178. CARRIAGE OF ANIMALS, governed by rules of merchandise, 1217; doctrine of, 1218, 1219. CARRIAGE-WAY, is also foot-way, 871. CARRIER, (See Baggage — Bailee — Common Cabbier - Parcels.) what a conversion of goods by, 405. may assume package not dangerous, 445. as insurer of thing carried, 1152. CARRIER'S RESPONSIBILITY, contracts Umiting, 1074-1076. CARS, when negligent running of, actionable, 38. injuries to trespassers from negligent running of, 60. leaving, before a dwelling-house, 993. crawling under, as contributory negligence, 1053. CARS FULL, after, whether railroad to accept passenger, 1062. CASE, action on the, di.stinguished from trespass, 45. action of, in false imprisonment, 210, 211. 728 INDEX OP SUBJECTS. CES CASE — continued. form of action for malicions prosecution, 220; for deceit, 313; for slander of title, 345; for conspiracy, 353. CASES. (See Judicial Decisions — Majority of Cases.) CASTING SURFACE WATER, on lower owner, 901. CASTING THINGS, (See Land.) From own land on another's, full, 830-843. CASTLE, (See Dwelling%ouse — Habitation.) breaking, to save life, 125. how dwelling-house regarded as the, 816. CATERER, slandering, in business, 347, 350. injuring one by improper food, 699. CATTLE, (See Animal.) fences are for protection Against, 800. duty to keep, from straying, — to fence against, 801, 802. damages to, through neglect of fence, 806-808. duty to keep, out of mischief, 839, note. whether private way for, or not, 871. trespassing, how deal with, 943, 940. lawfully at large, injured, 994. CATTLE-PEN, whether, nuisance, 426. CAUSE, CAUSES, (See Combinations — Sole Cause — Two Causes.) Tlie doctrine of combinations of, full, 517-536; also 39-45, 450-453. must not be remote, 40. independent of city's neglect, creating defects iu way, 965. CAUSE AND EFFECT, (See Effect.) Wrong and injury must be, full, 37-39. disobedience to law, and injury, 140. the falsehood and cheat must be, 328, 333. in negligence, wrong and injury must be, 448. CAUSE IN MOTION, author of, answerable for consequences, 457. CAUSES, OTHER, (See Combinations.) Negligence combining with, full, 450-453. CAUTION, (See Care — Precaution — Safeguards — Warn- ing.) CELEBRATION OF MARRIAGE, false representations inducing, 341. CELLAR, water percolating into, nuisance, 412. CELLAR DRAINS. (See Drain.) obstruction of street in constructing, 986. CEMETERY, whether nuisance, 426; as corporation, 768, note. CESSPOOL, (See Drain — Sewer.) injuring well, nuisance, 412. _ whether one must make his land a, for neighbor, 898. 729 CIV INDEX OP SUBJECTS. CHANGE IN FORM, of personal property, effect of, 939. CHANGING FACTS, effect of, on common law, 1289-1291. CHANNEL, whether, essential to watercourse, 889 and note, 899. CHARACTER, assaulted person's knowledge of assailant's, 199. giving, of servant, 304. slander is injury to, 344. CHARTER, terms of, as to municipal corporation, 741. CHASTISEMENT, right to inflict, on infant, 546. CHASTITY, oral charge of want of, in slander, 267; special damage, 274. CHATTEL, (See 'Merchandise — Peksonal.) railroad ticket is a, 1077. CHEAT, (See Deceit.) charge of, in slander, 271 ; in libel, 281, 283. in performance of duties, 698. CHECK, refusing to pay, actionable, 491. CHECK OF BAGGAGE, effect of, 1158. CHILD, CHILDREN, (See Parent and Child.) whether, parent's servant, 373. stopping in way, as negligence, 445. contributory negligence of, compared with adult's, 854. playing in streets, 1009, 1010. contributing to own injui'y in street, 1014. young, on railroad track, 1037. contributory negligence of, in crossing railroad track, 1047. trespassing on cars', 1051. ejecting passenger responsible for fare of, 1097. street-car travel by, 1124. injured on steamboat, 1137. CHILDREN TRESPASSING, special liabilities to, 854. CHURCH DISCIPLINE, (See Discipline.) communications in, privileged, 305. CIRCUMSTANCES, negligence vai7ing with the, 487-439. CIRCUS, boisterous, nuisance, 421. effect of license to, 1261. CIRCUS-MAN, injured while monopolizing street, 1010. CITY, (See Municipal Corporations.) answerable for injuries from street, why, 963. CITY HOSPITAL, as corporation, 768, note. CIVIL OR CRIMINAL, whether remedy for injury to or from public way is, or both, 950. CIVIL LAW, deriving doctrines from, 1174, note. 730 INDEX OP SUBJECTS. COL CIVIL SUIT, (See Suit.) whether malicious prosecution of, 244. judges and jurors not liable to, 781. " CLEAN HANDS," doctrine of, in contributory negligence, 460. CLERK, person in store injured by following direction of, 621. CLERK IN POST-OFFICE, duties and liabilities of, 1197, 1199, 1200. CLIENT, (See Lawyers.) action by, for attorney's negligence or want of skill, 704-706. CLOTH, found, becoming moth-eaten, 446. CLOTHES, innkeeper not strip, from guest, 1181. CLOTHING, duty to provide, for infant, 547. CLOUD-BURST, mischief from, not actionable, 170. COACH, (See Stage coach — Travelling.) Travel by, full, 1129-1135. negligence presumed from, upsetting, 443. COAL, belongs to owner of the wood, 939. COAL-CELLAR, negligent digging of, 995. COAL-HOLE, in sidewalk, 530, 965. insuflBoiently covered, actionable, 995. COAL LANDS, special considerations as to use of, 842, 856. COASTING, one hit by another's, city not liable, 752. C. O. D., effect of, on package, 1190. CODE, less justice in, than in common law, 108. concerning the name, 1174, note. CODE OF PROCEDURE, not best form of amending common law, 1303. CODIFICATION, (See Common Law.) exemplified in English " Employers' Liability Act," 689. some of the evils of, 908. blunder in supposing the civil law is related to, 1174, note. of judicial procedure, evil of, 1303. conclusions as to, 1341-1350. CODIFIED COMMON LAW, term, a contradiction, 1305. COERCION,, not justify tort or crime of infant, 548. CO-JURISDICTION, between teacher and parent, 595. COLLECTION, carrier to make, when, 1190. COLLIERY CASE, with railroad, contributory negligence in a, 463. COLLISION, COLLISIONS, (See Passing One Another.) in public way, injuries from, 182. rule of damages in cases of, in admiralty, 473, 522, note. law of road to avoid, in street, 1016, 1017. of railroad cars with animals, 1229. COLORABLE, jurisdiction merely, 783. 731 COM INDEX OP SUBJECTS. COMBINATIONS, (See Parties.) Of persons and forces, full, 517-536 ; also, 39-45, 450-453. of persons and things, some principles as to, 573. in obstructing public ways, 1002, 1003. COMBINATIONS OF CAUSES, (See Two Causes.) In negligence, full, 450-453. in malpractice, 715. COMBINATIONS OF FORCES, in torts, 39; in battery, 193. COMBINATIONS OF PERSONS, (See Aider — Conspiracy.) improperly called conspiracies, 353. in negligence, 456. COMBINING, of plaintiff's trespass and defendant's wrong, 60. COMBININGS, what, constitute deceit, 317. COMBUSTIBLES, (See Fire.) one leaving, another firing, 456. on railroad track, rights and duties as to, 1029, 1030. on land near raih-oad, 1030. COMFORT OF PASSENGERS, (See Travelling.) railroad not carry one who will endanger, 1061. COMITY OF NATIONS, doctrine of, as to wrongs abroad, 1282. COMMAND, • (See Duty Imposed.) impossible to obey, void, 156. to infant, not justify his tort or crime, 548. of master, not excuse servant, 622. as law, distinguished from reason, 1302, 1305. COMMENTS, on legislative proceedings, as privileged, 305. COMMERCE, bridges as instrumentalities of, 953. COMMERCIAL AGENCY, falsehoods to, as cheat, 329. COMMISSIONER OF PATENTS, to supply copies, 135. COMMISSIONERS, for straightening river, liability of, 788. COMMON ACCIDENTS, (See Accident — Inevitable.) Doctrine as to the, full, 176-184. COMMON CARRIER, (See Carriee— Merchandise — Parcel.) breach of duty of, tort, 74. not liable for jettison, 163. compared with mail, for sending money, 482. proprietor of bridge is not, 952 ; ferry proprietor is, 954. term, defined, 1057. delivery of baggage or other thing to, 1158, 1159. contracts limiting liability of, 1160. analogous to innkeeper, 1166. lien of, on goods owned by third person, 1181, note. delivery of goods by, to consignee, 1186. how limit liability, 1191. mail is not a, 1195; postmaster not a, 1196. 732 INDEX OP SUBJECTS. COM COMMON C AREIER — continued. whether telegraph company is, 1206. whether telephone company is, 1213. COMMON CARRIER OP PASSENGERS, (See Baggage — Passengek — Travelling.) Rights and liabilities of railroads as, full, 1056-1065. is quasi public ofiacer, 1115. must take passenger's baggage, 1151; liable for its safety, 1152. COMMON LAW, (See Codification — Future of ouk Law Law — Law Learning — Reason — Reasoning.) Nature of the, full, 80-90, 1286-1293. restraints of, on men and things, 93. superior to code in working justice, 108. protection in obeying, 112 ; disobeying the, 132. practical nature of, 160. courts compelled to follow the, 673. adaptability of, to shifting conditions, 1005. doctrines of, comparatively few, 1054. unchanged, adapted to altered circumstances, 1115. improving the judicial rulings under, 1115. the reasoning of, binds the courts, 1174. indebtedness of, to civil, 1174, note. old rules of, applied to new facts, 1117, 1119. whether, varies with natures of things, 1232. nature and growth of, 1286-1295. good and evil methods of changing the, by statutes, 1308, 1304. COMMON LAW AND STATUTE, equal in their effects, 756. COMMON SCHOOL, (See Teacher and Pupil.) relation of, to children, 592-596. COMMUNICATION, By mail, full, 1195-1202 ; by telegraph, full, 1203-1212; by telephone, full, 1213. COMPARATIVE JURISPRUDENCE, as to, 1174, note. COMPARATIVE NEGLIGENCE, (See Negligence.) Law of, full, 471-4:73. COMPENSATION, Or not, for property taken for public use, full, 117-120. recipient of wrong entitled to but one, 519. to legal practitioners, 704. whether physicians and surgeons can recover, 708. COMPETITION, in business, permissible, 103. COMPLAINANT, liability of, to malicious prosecution, 221, 230. COMPULSION, (See Necessity.) irresistible, excuses tort, 498. COMPUTATION OF TIME, (See Fractions of Day.) in limited railroad ticket, how, 1083. 733 CON INDEX OP SUBJECTS. CONDITION, (See Highwat.) In what, public ways must be put and kept, full, 968-978. on passenger ticket, unsigned, 1079. CONDITION OP OWN LAND, (See Land.) What, to avoid harm to others, fitll, 845-854. CONDITION OF PUBLIC WAY, (See Highway.) On whom and how responsibilities for, full, 960-962. CONDUCT, governmental control over, 15. equivalent to words, in deceit, 315, 332. CONDUCTOR, liability of, where passenger has stolen goods, 502. forcing a person into cars, who liable, 613. taking passenger contrary to rule, 619. how, as to awaking passenger, 1068. how protect and treat passenger, 1068. mistakes by, in taking up tickets, 1096. superintends the alighting of passenger, 1101. to look after passenger's position in cars, and warn him, 1106. of street cars, as to position of passenger, 1119. CONFLICT OF LAWS, As to torts, full, 1275-1282. extraterritorial wrongs, 67. CONFLICTING RIGHTS, between contiguous owners of land, 842. CONFUSION OF GOODS. (See Mixing Goods.) CONGRESS, power of, as to bridges, 933. ferries not, like bridges, under control of, 954. CONNECTING LINES, relations of, to passengers, 1110. CONSCIOUS FALSITY, (See Intent.) essential in deceit, 316, 324. CONSENT, (See Licensing.) Effect of, as taking away action, full, 49-53. efi'ect of, in assault, 196 j libel and slander, 291; negligence, 476; trespass to land, 819, 822, 823. CONSENTING FEMALE, (See Seduction.) Mights and remedies as to debauching, full, 378-387. CONSIDERATION, (See Pat.) immaterial, in contract on which tort is founded, 76. not required in executed contracts, 76, note, not required in servant's assumption of risks, 677. immaterial to a duty imposed by law, 756. paying, for stolen goods, not give title, 931. element of, in carrier's liability, 1153, 1154. CONSPIRACY, (See Combinations.) Law of actionable, full, 353-362. not actionable without resulting injury, 23. by passengers to avoid falres, 1095. 734 INDEX OF SUBJECTS. CON CONSPIRATORS, in slander, 525, note. CONSTITUTION, impossible command of, void, 157. CONSTITUTIONAL, statute which is not, 113. CONSTITUTIONAL LAW, as to taking private property, for public use, 119, 120. impeaching judges for holding statute unconstitutional, 780, note. as to bridging navigable waters, 953. CONSTITUTIONAL RESTRAINTS, On legislation, full, 91-96. CONSTRUCTION, of railroad, what care in, 1023, 1024. CONSTRUCTION AND REPAIR, of private way, 873. of ways, duty carries liability to persons injured, 960. CONTAGIOUS DISEASE, (See Infectious — Physical Con- tagion — Sick Person — Small-pox — Whooping-cough.) Oral accusation of, actionable, full, 261, 268, 269. what exposes to, nuisance, 414 ; liability for communicating, 502. liability for transporting cattle with, 531. how care for persons having, 748. entering land to arrest spreading of, 822. whether railroad carry one sick with, 1061. CONTEMPT, legislative body may punish for, 775. CONTEMPT AND RIDICULE, defamation bringing, 259, 285. CONTINUANCE, of nuisance, actionable, 422. CONTRACT, CONTRACTS, (SeeBAEGAiN— Breach of— Grant.) Breach of, being also tort, full, 4, 5, 72-78. Liabilities for things done under, full, 602-607. With railroad for passage, full, 1072-1084. scope of law of, books on, 6. injured while riding on illegal, 62. not the ground of passenger's rights, 64, note, how differs from non-contract as to tort, 159. procuring breach of, 365, note, 370-372, 493. debauching female employee under, 379. public nuisance preventing fulfilment of, 424. not negligence to presume fulfilment of, 445. insanity in, effect of, 508; drunkenness on, 511. joint, tort founded on, 521. whether infant liable for tortious breach of, 566. for fare of travelling infant, 581, note, servants by, and not by, whether regarded alike, 640. effect of, as to their rights and duties, 641. what, between master and servant, void as against policy of law, 641. as to doctrine of fellow servants, 673. of servant, as to his assumptions of risks, 677. terms master and servant, and principal and agent, in law of, 692. 735 CON INDEX OP SUBJECTS. CONTRACT, CONTRACTS— cora/muerf. essential or not to tort-liability of professional person, 702. municipal corporation letting, 747. as to fences, 802; as to use of underground waters, 885; of water- course, 891 ;. of surface water, 903 ; as to lateral support, 911 ; party- wall, 915, 916; light and air, 923. liability for condition of street, notwithstanding, 961, 962. as to passenger carriers, 1058. not providing passenger seat in csjr is breach of, 1091. limiting carrier's liability, 1160, as to transmission of telegram, 1209, 1210. privity of, between receiver of message and telegraph company, 1211. CONTRACT OF HIRING, effect of, in law of master and servant, 639, 641. CONTRACTOR, Distinguished from servant, liabilities of, full, 602-607. liable or not for fall down elevator, 858. corporation liable for negligence of, in building street, 961; himself liable also, 962. CONTRADICTION, CONTRADICTIONS, decisions cannot establish, as law, 525 and note. cannot be, in law, 1232. CONTRIBUTING, to a wrong, equivalent to doing, 39. other things, to the falsehood in deceit, 336. CONTRIBUTION, whether enforce, among wrong-doers, 56, 535. CONTRIBUTOR, to tort, responsible for all, 39, 518, 522, 525. CONTRIBUTORY NEGLIGENCE, (See Negligenck.) Law of, full, 458-470. Of persons having care of infant, full, 577-583. Infant's own, full, 584-587. Servant's negligence combining with, of injured third person, full, 617- 621. Servant's, whether master's own, full, 631-634. By servant, as between master and servant, full, 679, 680. As defence in injuries from defective ways,fuU, 1012-1014. In crossing railroad track, full, 1041-1047. trespass as, 60. when risking one's life not, 125. disobedience to command of law as, 140. of third person, no defence, 451. effect of drunkenness on, 513. unlawful liquor selling as, 515. imputing parent's, or adult's, to child, 581-583. of master, to fault of his servant, 629. master's, to injury to servant, 684. of patient, in malpractice case, 714. to losses from neglect of fence, 807. 736 INDEX OF SUBJECTS. COR CONTRIBUTORY NEGLIGENCE — continued. of one injured on another's realty, 850. to injury from careless condition of vessel, 927. to railroad fires, 1030. of servant driving his master, 1069, 1070. of servant operating railroad, not impute to passenger, 1071. passenger's conduct in sudden danger as, 1108. traveller's, in loss of baggage, 1159. of guest at inn, to loss of baggage, 1175. of sender of telegraph message, 1207. in injury from dog, 1236, 1237. in bar of action for causing death, 1273. CONTROL, traveller keeping baggage in own, 1159. CONTROVERSY, no prescrijiion where no, possible, 885. CONVENIENCE AND COMFORT, impaired by trade-nuisances, 418, 421. CONVENIENCES, of travel, to be given passengers, 1090. "CONVENIENT OCCUPATION," private way for, of adjoining farmland, 874. " CONVENIENT PLACE," meaning of, in niusance, 419. CONVERSION, by driving hired horse contrary to contract, 76. CONVERSION OP GOOD^, Law of, full, 396-408. infants liable for, 565. * by servant, master and servant's liability for, 624. " CONVERT," meaning of word, 403, note. CONVEYANCE, duty of passenger carrier to provide, as advertised, 1059. CONVICTION, no malicious prosecution after, unreversed, 242 , effect of reversal, 242. COPIES, when actionable to refuse, 135. COPYRIGHT, no, in immoral book, 58. subject of slander of title, 347. COPYRIGHT LAWS, imperfect, and how need amendment, 1335 and note. CORN, owner of, may have the whiskey, 939. CORPORAL CHASTISEMENT, teacher's right to inflict, 596. CORPORATION COURT, power and responsibility of, 745. CORPORATIONS, (See Municipal.) Law of, full, 718-769; namely, general doctrine, 719-734; business corporations, 735-737; municipal corporations, 738-765; other corpo- rations, 766-768. CORRECTION, of infant, what and by whom, 546. CORRUPT PERFORMANCE, of corporate duties, 747. 47 737 CRI INDEX OP SUBJECTS. CORRUPTION', in exercising a discretion, 748. judicial officers not liable to courts for, 781, 782. liability of quasi judicial officers for, 789. COSTS, how of, and as to malicious prosecution, 244, 245. COUNSEL, (See Advice of — Attoknet-at-Law — Lawyers.) whether libel by, in professional utterances, 300. rights and liabilities of, 704. COUNTERFEIT BONDS, delivering, as genuine, 321. COUNTERFEIT HAARLEM OIL, charge of selling, as libel, 283. COUNTERFEITS, paying in, as cheat, 321. COUNTIES, as municipal corporations, 766. COUNTING-ROOM, expelling one from, 503. COUNTRY OR STATE, Wrongs out of the, full, 1275-1282. ■ COUPLING APPLIANCES, railroad cars to have suitable, 1024. COUPON, of railroad ticket, " void if detached," 1084. COURSE OF EVENTS, courts and juries take cognizance of, 443. COURT, COURTS, (See Jddge — Judicial Functions — Law OR Fact — Procedure.) as to question of probable cause in malicious prosecution, 240. how far libel a question for, 308, 309. no jurisdiction over legislature, 777. COURT OR JURY, (See Jury — Law ok Fact.) whether negligence and contributory negligence for, 442, 469. as to negligent sending of money, 482. as to infant's capacity for contributory negligence, 586, 587. contributory negligence in injuries from defective ways, 1012, 1013. whether negligence in crossing railroad track for, 1043. negligence in boarding moving train, whether for, 1099. COURT-MARTIAL, member of, not liable to civil suit, 781. COVERTURE, (See Husband and Wife.) Torts as affected by, full, 537-543. COW, (See Animal.) injured by fish brine in street, 529. CREDIT, (See Business Credit.) injuring, by enforcing rights, 103. imputing want of, in slander, 271. misstatements to procure, for another, 320. CREDULOUS, being too, in deceit, 337. CRIME, (See Civil or Criminal — Indictable — Misdemeanor.) Viewed also as tort, full, 70, 71. Oral accusation of, actionable, full, 261-267. indemnity for committing, 55. assault and battery as, and as civil wrong, distinguished, 187, 196, 197. 738 INDEX OP SUBJECTS. DAM CRIME — continued. bringing damage special to individual, actionable, 279, 285, 424. combinations in, 353, 355. intent in, distinguished from tort, 496 ; insanity in, 508. by many, each pmiished in full, 519. age of capacity to commit, 561. lawyer must not commit, in service of client, 707. one must not commit, in defence of property, 945. CRIME AND TORT, distinguished in libel, 279, 280. CRIMINAL JURISPRUDENCE, and civil, compared as to damages or punishment, 519 ; why, 520. CRIMINAL LAW, distinguished from civil, as to intent, 16. distinctions in, as to wrongs in or out of buildings, 815, 816. law of public ways is, in part, 950. CRIMINAL PROCESS, actionable to employ, to collect debt, 233. CRIMINAL PROSECUTION, defamation tending to, actionable, 254, 266. CROPS, destroyed by burning fences, 805. CROSS-WALKS, crossing not limited to, 1015. CROSSING, highway, rights of, 1015. CROSSING TRACK, (See Private Crossing.) Of railroad, rightfully, full, 1039-1049. by street car, 1116. , CROWDED FERRY-BOAT, travelling on, 1140. CROWDED STREETS, carefulness required in driving through, 1021. CRUELTY, to arrested person, as false imprisonment, 210. CUSTODIAN. (See Care of Infant.) CUSTOM, (See Customs and Usagbs — Usage.) as determining suflSciency of fence, 804. CUSTOM-HOUSE OFFICER, injured by unsafe wharf, 849. CUSTOMER, CUSTOMERS, loss of, special damage in slander, 274. injured by following direction of clerk, 621. obstructing passage of, to shop, 993. CUSTOMS AND USAGES, (See Custom.) as constituting common law, 1288. DAM, precautions in, against freshets, 440. DAMAGE, DAMAGES, (See Actual — Apportioned — Exem- plary — Legal — Mitigation of — Nominal — Special — Wrong and Injurt.) Nature of the, in deceit, full, 338-342. when, must be actual, 32, 33 ; minuteness of, 36. evil intent enhancing the, 142 ; lack of it reducing the, 499, 501. the, as to costs,' in malicious prosecution, 244, 245. 739 DEA INDEX OP SUBJECTS. DAMAGE, DAMAGES — confinuerf. in slander, 270-275, 310. ' in libel, enhanced by number of copies, 286. proof of, in slander and libel, 310, 311. in actionable deceit, essential, 318. the, in slander of title, 350. ■whether, essential in nuisance, 417. in negligence, augmented by degree, 441. payable but once, 519. parent's right to, for injuries to child, 555. what, to infant for torts sufEered, 571. not appreciable, in trespass on land, 819. to soil and buildings, how estimate, 907. whether killing wild animals augments the, in trespass, 1249. taking life not ground for, at common law, 1268 ; otherwise under statutes, 1271-1273. between time of fatal injury and death, 1269. DAMNUM ABSQUE INJURIA, Doctrine of, full, 103. DANGER, DANGERS, what, in assault, 194. master to warn servant of, 649, 651. servant's knowledge and judgment of, 678. duty of master as to, 678. carefulness to be commensurate with the, 1064. railroad warn passengers of, 1089. DANGER-SIGNAL, torpedo laid by railroad as, injuring trespasser, 1052. DANGEROUS, when package not presumed, 445. dog being, or not, 1234, 1235. DANGEROUS ANIMALS, keeping, 1225, 1230. DANGEROUS ARTICLE, putting out, as nuisance, 413. DANGEROUS MACHINE, attractive to children, liability for, to child injured, 854. DANGEROUS PASSENGER, how railroad treat, 1115 ; street-cars to reject, 1118. DANGEROUS POSITION, (See Position in Car.) passenger not take, in car, 1106, 1119. DANGEROUS PREMISES, (See Land — Nuisance — Pcblic Wat, &c.) DANGEROUS WILD ANIMALS, (See Animal.) whether one's hunting, on another's land, is trespass, 1248. DARKNESS, injuries in way from, whether municipality liable, 974. DE FACTO, service, in seduction suit, 384. DEAD BODY, mutilating, 1268. 740 INDEX OP SUBJECTS. DBF DEAF, peraon on railroad track known to be, 1037. DEATH, (See Life.) Legal consequences of causing, full, 1267-1274 ; namely, at common law, 1268-1270 ; under statutes, 1271-1273. statute making the causing of, actionable, not applied to foreign, 1281. DEBAUCHING FEMALE, (See Seduction.) Rights and remedies as la, full, 378-387. DEBT, lawful to transfer, to another State, 103. employing criminal process to collect, actionable, 233. DECEIT, (See Cheat — False Statements — Fraud — Slander OP Title.) Law of, full, 312-343; namely, in general, 313-317; as to what things, 318-321 ; on what representation, 322-332 ; what believing and acting on representation, 333-337; nature of damage, 338-342. BO action for, under fair agreement, 52. slander of title as a species of, 344, 345, 346, 349. in falsely claiming special skill, 698. carrier's breach of duty as, 1058. DECEITFUL WARRANTY, election to sue for, on contract, or tort, 77. DECISIONS, (See English — Erroneous — Judicial.) or law, distinguishable from words of judges, 39, note. from misapprehension, effect of, 196 ; overruling, 196, 200. errors in, from judge overlooking facts, 304, note. DECREE IN CHANCERY, perjured witness procuring, 342. DEDICATION, private way by, 869. what, and creating highway by, 958. what interest in way passes by, 989. DEED, of land on street, how interpret, 989. DEFAMATION, (See Libel — Slander.) malicious prosecution as, 222, 227, 245. DEFAMATION OF TITLE. (See Slander of Title.) DEFAULTER, charge of being, in slander, 271. DEFECT, in water pipe, 838. in palace car, injury from, 1113. "DEFECT IN CONDITION," of " plant," whether disposition to kick is, 689, note. DEFECTIVE MACHINERY, servant working with, 641. contract exempting master from liability for, 641. DEFECTIVE PLANS, furnished to servant, by master, 629. DEFECTS KNOWN. (See Known Defects.) DEFECTS IN WAY, (See Public Way.) what, require notice, to make city liable, 964-967. 741 Die INDEX OF SUBJECTS. DEFENCE, DEFENCES, The, in assault and battery, full, 198-200. In slander and libel, full, 287-310. Private, of person and property, full, 942-946. DEFENCE OF COUNTRY, private losses iu, no pay for, 161. DEFENCE OF PERSON. (See Person.) DEFENCE OF PROPERTY, (See Pkopeety.) dog may be killed in, 1239. DEPENDANTS, verdict against part, in conspiracy, 354. DEFINITION, DEFINITIONS, (See under the several titles.) ■what is a, 221, note; nature and paucity of our legal, 866, note. DEGREE OF CARE, (See Cake— Negligence— Utmost Cake.) for servant, required of master, 645. in using public way, 1013. required in equipping and running railroad, 1023. to avoid fires from railroad locomotive, 1027. what, in the carriage of passengers, 1064, 1094. DEGREE OF NEGLIGENCE, what, deemed contributory, 459, 468. what, and how vary with cases, 438, 439, 441. what, actionable in lawyer, 705. DELAY, in repairing party-wall, 919. in telegraph message, 1205-1207. DELEGATING DUTY, master's authority as to, 656. DELIVERY, of baggage or goods to carrier, 1158, 1159. of guest's effects to innkeeper, 1177, 1178. what, of parcel to person addressed, 1186, 1187. DEMAND AND REFUSAL, conversion of goods by, 406. DEMURRER, in negligence cases, 442. DENIAL OF RIGHT, to goods, conversion by, 406. DEPOSITED, whether letters taken from post-offlce after, 1202. DEPOSITOR, check of, refusing, 491. DEPOSITS ON LAND. (See Land.) DEPOT, (See Passenger Depot — Station.) rights of traveller not finding train at, 1059. DEPRESSIONS IN OWN LAND, right of filling, 898. DEPUTY SHERIFF, (See Sheriff.) for neglect of, suit against sheriff, 628. DERELICT AT SEA, things, 934; salvage for, 934. DESTROYING PROPERTY, to save property, 163. " DETACHED," coupon ticket void if, 1084. DETAINING GOODS, after demand, 406. DICE. (See False Dice.) DICTA. (See Words of Judges.) • 742 INDEX OP SUBJECTS. DIS DIGGING AWAY, (See Excavation.) One's own land, to injury of another's, full, 905-913. DIMINUTION, of watercourse, by riparian proprietors, 890. DIPLOMA, of physician or surgeon, eiieot of, 709. DIRECTION TO PASSENGERS, (See Information.) railroad must give, 1089. DISABILITY, creating, in servant, actionable by master, 365. DISCHARGE AND EMPLOY, whether power to, makes vice-principal or fellow servant, 668. DISCHARGING PASSENGERS, (See Alighting — Disem- barking.) by raiboad, 1100; by street car, 1120, 1122. DISCHARGING PRISONER, not, as false imprisonment, 210. DISCIPLINE, (See Church Discipline — Voldntaky Asso- ciations.) • Of infancy, full, 545-548. DISCLOSING, or not, contents of package to carrier, 1155, 1188. DISCOMFORT, what produces, nuisance, 416. DISCONTINUANCE, of public way, effect of, 1001. DISCOVERED NEGLIGENCE, not contributory, 466 ; failure to discover, 466. DISCOVERED TRESPASSER, railroad's duty to, 1036, 1087. negligence in not discovering, 1037, note. DISCOVERING LAW, how of, 85. DISCRETION, (See Opinion.) as qualifying command of law, 118. acts of servant having a, bind master, 615. to do or not, effect of, 748. in nature of judicial, 786. DISCRETIONARY, statute construed as, 748. DISCRETIONARY POWERS, of municipal corporation, 743, 748. DISEASE, (See Contagious — Infectious — Sick Person.) insanity a, 505. DISEASED ANIMALS, permitting, to mingle with others or with men, 1227. DISEMBARKING, (See Alighting — Travelling.) by traveller, from carrier's vessel, 1139. DISGRACE OF FAMILY, element of damage for debauching, 379. DISHONESTY, written charge of, actionable, 282, 283 DISOBEDIENCE OF LAW, (See Obedience— Unlawful Act.) Consequences of, full, 131-141. DISOBEDIENCE OF ORDERS, when master liable for servant's acts in, 610. 743 DBA INDEX OP SUBJECTS. DISORDERLY PERSONS, exclude, from cars, 1118; from inn, 1168. DISQUALIFICATION FOR SERVICE, child's, as damage to parent, in suit for injury, 557; to infants, 571. DISREPUTABLE PLACE, imputation of keeping, in slander, 271. DISSENT, when participation inferred from lack of, 523. DISTILLERY, whether, nuisance, 426. DISTINCTIONS, some, in legal doctrine, necessarily shadowy, 936. DISTURBANCE, railroad to eject passenger making, 1115. DITCHES, (See Drain.) right to dig, on own land, 901. DIVERTING WATER, from watercourse, 892. DIVISIONS OF LAW, are for practical use, 8. DIVISIONS AND OUTLINES, 0/ the present work, full, 1-8. DO AS WILL, right to, 11. DOCK, whether nuisance, 426. DOCTRINE. (See Decisions.) DOCTRINE OF VOLUME, restated, 1283-1299. DOCUMENTS, carried by attorney, whether baggage, 1156, note. DOG, DOGS, (See Animal.) The rules of law specially applicable to, full, 1233-1241. bite from, upon one travelling on Sunday, 64. parting, when fighting, 181. when, nuisance, 413. infant setting, on neighbor's hogs, 550. biting minor child, 555. boy driving cattle with, contrary to orders, 610. fences not for protection against, 800. trapping, 853. how one travelling by rail with, 1157. DOG-SPEARS, (See Spking-guns.) protecting grounds by, 943, note. DOMESTIC ANIMALS, (See Animal — Fowls —Hens.) Rights and liabilities of owners of full, 1220-1229. DOMINANT LAND, (See Easement.) conveyance of, carries appurtenant ways, 867. DOMINION, usurping owner's, of goods, 929. gives right to wild animals, 1251. DONKEY, injuring, in public way, 464, 465. DRAIN, (See Cellar Drains — Ditches — Sewer.) whether, nuisance, 426. right to, as easement, 864. 744 INDEX OP SUBJECTS. DYN DRAINING, one's right of, his own land, 882. surface water into watercourse, 902. DRESS, woman's, when baggage, or not, 1156. DRIVER, liability of, for injuries, 182. in street, what is negligence of, 1021. of private or hired carriage, whether servant, and how, 1145. DRIVER OF COACH, not allow reins loose, 1064. DROVER'S TICKET, liability of raUroad to one riding on, 1076. DRUGGIST, (See Apothecary — Physician.) Professional liabilities of, full, 716. DRUNK, person on railroad track known to be, 1037. whether raih'oad carry person who is, 1061 ; getting fare from, 1095. DRUNKENNESS, (Seg Intent — Intoxication. ) Effect of, full, 511-515. charging preacher with, in slander, 271. DUST, nuisance by, 412. DUTY, DUTIES, (See Social Duty.) non-discharge of, consequences, 132. not negligence to presume one will do his, 445. actionable negligence must be in violation of, 446. not doing, actionable, 526. cheats in performance of, 698. municipal corporation consenting to, or not, 755-757. municipality liable for not doing, 754, 758. injury from non-discharge of, 757. ministerial officer not protected outside of, 793. ministerial officer not or negligently doing, 796. of telegraph to receive and transmit messages, 1205-1207. whether telegraph company owes, to third person not contracted with, 1211. DUTY IMPOSED BY LAW, (See Command.) Common carriers of passengers under what, full, 1058-1065. DUTY OF SERVANT, acts not within, 612. DUTY TO SPEAK, as justifying libel, 303-306. DWELLERS ALONG PUBLIC WAYS, PdgMs and liabilities of, full, 989-1001. DWELLING-HOUSE, (See Caller — Castle — Fokcb and Violence — Habitation — House.) entering one's, without objection, 50. misconduct in, after entry by permission, 392. trade nuisances to, 418-421. defined, law of the, as castle, 816. permission to enter, how, 823 ; ejecting trespasser from, 824. DYNAMITE BOMB, whether remove, from way, 430. 745 ELE INDEX OP SUBJECTS. EAKN MONEY, (See Labor.) ability to, as ground for damages, 374. EARNINGS, right of parent to child's, cease with support, 374-376. EARTH, casting, from own land on another's, 829. taking, from highway, 990 ; using, in repair, 990. EASEMENT, abutter having, in public way, 989, 991. EASEMENTS AND SERVITUDES, (See Dominant Land- Land — Lateral Support.) Law of, full, 861-925; namely, in general, 862-865; private ways, 866-876 ; under and upper waters, 877-903 ; partitions and supports, 904-919 ; light and air, 920-924. EAVES, projecting water from, as trespass, 821, 830. EDUCATION, (See Teacher and PnpiL.) For goiiemmental functions, full, 1315-1319, 1347-1350. EFFECT, (See Cause and.) Wrong, to be actionable, must have produced evil, full, 37-39. How proximate to its cause, full, 40-48. cheat must be the, of falsehood, 328, 333. EFFECTS OF NEGLIGENCE, Proximate and remote, full, 454-457. EFFIGY, libel by, 280. EGRESS AND INGRESS, what right of, in abutter on street, 992, 993. EJECT PASSENGER, (See Passenger— Travelling.) when and how, 1068, 1078-1080, 1082, 1083, 1095-1097 ; more partic- ularly explained, 1097. EJECTING, (See Expel Persons.) person from lands or house, and how, 823-825, 846. ELBOW, out at window of steam car, 1107 ; of street car, 1119. ELECTION, Between proceeding for tort or on contract, full, 72-78. of methods, to avoid injury, 104. between slander and malicions prosecution, 222. of defendants in tort, 521 ; injuries from public ways, 1002. between holding carrier on implied contract or law-imposed duty, 1058. to sue palace-car proprietor or railroad for loss of baggage, 1162. ELECTION OFFICERS, (See Officer.) liability of, for refusing vote, 31. ELEMENTS, the, injuring public way, 965. ELEMENTS OF NATURE, battery committed with, 192. ELEVATED RAILROAD, (See Railroad.) fire falling from, 46. requires legislative permission and compensation to abutters, 981. ELEVATOR, negligence in repairing, 483. not providing railings for, 850. 746 INDEX OP SUBJECTS. ERR EMANCIPATION, effect of, on parent's suit for injury to child, 559 ; on child's suit, 571. EMBANKMENT, when, protecting own land, 106. precautions in, agaiust freshets, 440. EMBARGO, nominal breach of, under stress of weather, 168. EMBARKING, by traveller, on carrier's vessel, 1139. EMERGENCIES, passenger carriers should anticipate, 1062. EMINENT DOMAIN. (See Public Use.) EMPLOY, threats not to, 144. EMPLOY AND DISCHARGE, whether power to, makes vice-principal or fellow-servant, 668. EMPLOYEE, (See Servant.) seducing away, 370-372 ; distinguished from apprentice, 370. action for debauching female, 379. EMPLOYER, when, master or not, 602-604. liability of, for employee's wilful wrongs, 614, note. EMPLOYER'S LIABILITY ACT, the English, 689 ; with us, 690. EMPLOYMENT, loss of, special damage in slander, 274. EN ROUTE, limited ticket expiring while passenger is, 1083. ENEMY. (See Public Enemy) ENFORCING LAWS, whether municipality liable for not, 752, 753. ENGINEER, jumping, or not, from train, 445. receiving passenger contrary to rule of road, 619. responsibility of, for lack of skill, — not insurer, 701. ENGLISH DECISIONS, weight.of, with us, 907. " ENORMOUS SWINE," words, in libel, 285. ENTERTAINMENT, (See Pastimes.) public, nuisance from, 421. ENTICEMENT, (See Seduction.) to enter unsafe premises, 853 ; same, outside of street, 994. ENTICING AWAY, (See Seduction.) Minor cMd, full, 373-377. EQUIPPING RAILROAD, (See Railroad.) Law of, full, 1023-1033. EQUITY, (See Bill in — Injunction.) remedy in, for trespass to land, 68. bill in, for deceit, 313. compelling discharge of mortgage, 492. adjusting use of subterranean water, 879, 883. ERECTION OF BUILDINGS, (See Building.) obstruction of street in the, 986. ERRONEOUS DECISION, (See Decisions.) of judge, as to his jurisdiction, 783. 747 EXP INDEX OP SUBJECTS. ERRONEOUS PROCEEDINGS, arrest after, 211. ESCAPED DEBTOR, receiver of, 28. ESCAPING, things from own land doing damage, 839, note, 841. animal, driven on highway, 1224. ESCAPING WATERS, liability for, 838-841. ESCORT, railroad's accountability to passenger's, 1109. ESTABLISHING, (See Laying Out.) Public ways, full, 957-988. ESTOPPEL, of father, to recover son's wages, 374, note. relation of master and servant by, 600, 601, 608, 609. fii corporation as to ultra vires acts, 733. EVIDENCE OF NEGLIGENCE, (See Negligence.) distinguished from negligence, 444. EVIL MOTIVES, (See Intent — Motive.) enforcing rights from, not actionable, 503. EX DELICTO, action, lies against infant, 565, 567. EXAMINER OF TITLES, responsibilities of, 700. EXCAVATION, EXCAVATIONS, (See Digging Awat.) On one^s own land, to injury of another's, full, 829, 905-913. making, outside of street lines, 977, 994; within street, 995. EXCAVATION IN STREET, injury from, in attempt to avoid danger, 452. EXCESS OF JURISDICTION, distinguished from absence of it, 783. EXCESSIVE FORCE, conductor ejecting passenger with, 1068. EXCESSIVE VIOLENCE, in repelling assault, 200. EXECUTION, EXECUTIONS, enforcing, on paid judgment, 490. whether several, against joint tort-fea-sors, 521. taking exempt effects on, 794. EXEMPLARY DAMAGES, (See Damage.) in malicious prosecution suit, 245. for debauching female servant, 379. no, in parent's suit for injury to child, 556. corporations may incur, 734. EXHAUSTED, non-liability for force which is, 44, 45. EXHIBITED, when railroad ticket is — taking up as waiver, 1096. EXHIBITIONS, (See Pastimes — Public Exhibitions.) city authorizing, 748. EXISTING FACT, (See Fact.) not opinion or promise, required in deceit, 324. EXPEL PERSONS, (See E.tecting.) right to, from place of entertainment, 262. EXPENSES, created by injury to child, parent recover, 558. EXPERT TESTIMONY, as to medical malpractice, 712. 748 INDEX OP SUBJECTS. FAL EXPIRED, employing another's servant after term has, 371. EXPLOSIONS, actionable or not, negligence, 445*. EXPLOSIVE ARTICLES, when selling, nuisance, 413. EXPOSED POSITION, conductor not permit, 1091, 1106. passenger occupying, 1106, 1107, 1119. EXPRESS CAR, passenger riding in, 1106. EXPRESS COMPANIES, (See Parcel.) are common carriers, 1185. EXPRESS MALICE, (See Malice.) meaning of, 257. EXPULSION, legislative power of, 776. EXPULSION FROM CAR, (See Eject Passekger.) how, explained, 1097. EXPULSION OF TENANT, as malicious prosecution, 243. EXTORTION, from arrested person, 210. EXTRA COSTS, what, and how treated, 244. EXTRAORDINARY CARE, required of passenger cairier, 1064. EXTRAORDINARY STORMS, (See Storm.) whether construct way with precautions against, 975. EXTRATERRITORIAL WRONGS, (See Abroad.) Doctrine of, full, 671, 1275-1282. FACT, (See Existing — Future — Law or Fact.) the, represented in deceit, 324-327. slander of title must be of a, 349. FAIR, horse injured by target-shooting at, 849. FALSE, representation in deceit must be, 324. FALSE BOOKS, charge of keeping, in slander, 271. FALSE DICE, winning by, as cheat, 321. FALSE IMPRISONMENT, (See Imprisonment — Malicious Prosecution.) Law of, full, 205-217. distinguished from malicious prosecution, 220. corporation may be chargeable with, 725. in foreign jurisdiction, 1277. FALSE-PRETENCE LAWS, as to stealing in authorship, 1385. FALSE PRETENCES, actionable cheats analogous to criminal, 322. railroad ticket as subject of criminal, 1077. FALSE STATEMENTS, (See Deceit.) when actionable or not, 315, 316. FALSE SUIT, slander by a, 222. FALSE TIME-TABLE, as cheat, 329. 749 PEM INDEX OP SUBJECTS. FALSEHOOD, (See Deceit — Kepresentation.) What the, in cheat', full, 322-332. FAMILY, (See Husband and Wife — Parent and Child — Seduction.) things for use of, may be traveller's baggage, 1156. FARE, FARES, (See Ticket — Travelling.) Bargainings and tickets between railroad and passenger about, full, 1072- 1084. Railroad conductor taking, full, 1095-1097. passenger declining to pay, then consenting, 1097. passenger's, pays also for baggage, 1153. FARES BEFORE TAKING CARS, rule of railroad requiring, 1080. FARES AND TICKETS, how, on street cars, 1125. FARM, misrepresentation as to, in deceit, 325. FARM CROSSINGS, of railroads, rights at, 1048. FATHER, (See Parent and Child.) rights of, for seduction of daughter, 57. whether child is servant to, 373. when, sue for debauching daughter, 379, 380. authority of, over infant, compared with mother's, 545. may sue corporation for enticing away child, 732. FAULT, must be, in contributory negligence, 468. liability for public way attaches in cases of, 965. FEALTY, whether corporation can do, 722 and note. FEAR. (See Sudden.) FEE, in whom the, of highway, 989, 1001. FEES, whether all lawyers entitled to, 704. right of physicians and surgeons to, 708. FELLOW SERVANT, SERVANTS, (SeeMASTEK and Servant.) Master's duty to provide suitable, full, 653-656. Doctrine of, full, 670-673 ; further expositions of, with intermingling doc- trines, full, 674-690. master's agents for non-assignable duties not, 647. negligence of, when not relieve master, 651. meaning of term, 660, 662. distinguished from vice-principal, 664, 665. one being both, and vice-principal, 664, 667. master's duty to servant as to, 683. injuring wife of servant, 686. FELONY, right to take life to prevent, 946. FEMALE. (See Consenting — DEBAtrCHiNG.) FEMALE CHILD, (See SKDroTioN.) Immorally seducing, full, 378-384. FEMALE PASSENGER, conductor taking liberties with, 1068. 760 INDEX OP SUBJECTS. ^"13 FENCE, (See Breaking — Railroad Fence.) removing, from beside railroad, cattle killed, 43. neglect of railroad to build required, 136. uses and purposes of the, 800. hoi-se kicking through, as trespass, 820. right to enter land to build, 822. right to compel adjoining owner to maintain, as easement, 864. relation of, to trespasses by animals, 1226. FENCING, when, excavations outside of street lines, 994. FENCING LANDS, (See Railroad Fence.) Uses and manner of, full, 800-812. FERRY, (See Public Way.) As carrier of passengers, full, 1140. diverting travellers from, as slander of title, 849. law of, as public way, 954. FERTILIZER FACTORY, whether, nuisance, 426. FIDELITY, lawyer's duty of, to client, 706. FIGHTING, dogs and men, parting, 181. hitting unmeant person in, 501. FIGHTING WITH PISTOLS, (See Assault and Battery.) and hitting passer-by, all, liable, 525. FINDER OF GOODS, rights of the, 936; what care of thing, 937. FINDING, the, in trover, 397. FINE, whether accusation of thing punishable by, is slander, 266. FINGER RINGS, may be traveller's baggage, 1156. FIRE, FIRES, (See Combustibles — Locomotive — Sparks Steam Engine.) On own land, spreading to another's, full, 833-837. From railroad locomotive, doctrine of full, 1027-1031. taking infected persons from house on, 125. destroying buildings to stop spread of, 126. trespass to extinguish, 163. carried by sudden wind, 169. whether presumption of negligence from, 443. negligent communication of, 445. negligently caused by child, 552. spreading because of defective water- works, 746. old doctrine of, escaping, 833, note, 839, note. wall left standing after, 843. FIRE DEPARTMENT, not agent of city, 762. FIRE ESCAPE, not providing, 850. FIRE-WORKS, city not liable for accident from, 752. FIREARMS, (See Loaded Firearms.) intrusting, to young children, 552. FISH BRINE, leaving, in street, 529. 751 FOK INDEX OP SUBJECTS. « FISHING, (See Hunting.) Lmc o/,fuU, 1253-1236. FISHING APPARATUS, may be traveller's baggage, 1156, note. FISHING RIGHTS, acquired in various ways, 1256. FLAGMAN, being guided by, in crossing railroad, 1044; absence of, 1044. FLAMES. (See Fike.) FLEXIBILITY, of common law rules, 1005. FLOGGING, teacher's right of, 596. FLOOD, trespass to save goods from, 163. FLOOR, ownership of thing picked up from, 936. FLOWING LAND, prescriptive right of, 893. FOOD, withholding, from arrested person, 210. FOOT, (See Pedestbian.^ Travelling on, full, 1148. putting, on another's land, 819. FOOT-TRAVELLERS, injuries to, 1148. FOOTWAY, not necessarily also for carriages, 871. FORCE, (See Combinations of Forces.) as element iu trespass, 389. whether fraud equivalent to, in entry, 816. FORCE, OVERWHELMING. (See Necessity.) FORCE AND VIOLENCE, (See Dwelling-house.) right to expel person entering by, 824, 825. FORCES AND PERSONS, Combining, full, 517-536; also, 39-45, 450-453. FORCIBLE DETAINER, breach of peace by a, 825. in defence of property, unlawful, 945. FORCIBLE ENTRY, may be indictable yet not actionable, 197. corporations may commit, 726. FOREIGN LANGUAGE, (See Language.) slander in, 24. FOREIGN LAW, wrong abroad contrary to, or not, 1280. FOREMAN, master providing incompetent, for workmen, 654. whether, is fellow servant, 666, 667. FORESEEN, result not, in negligence, 457. FORESIGHT, neglecting duty of, 580. FORFEITURE, not, by act from necessity, 168. of passage, through loss of ticket, 1096. FORGED ORDER, carrier delivering baggage on, 1152. FORGERY, passing a, viewed as negligence, 480. may be committed of railroad ticket, 1077. .FORGETFULNESS, persons combining in, 526. 752 INDEX OP SUBJECTS. PUT FORM, of personal property changed, effect on ownership, 939. FORNICATION, oral charge of, as slander, 267; special damage, 274. FOULING, underground waters, whether actionable, 886. FOUNDATION PRINCIPLES, (See Principles.) The, of non-contract law, full, 9-19. How technically limited, fuU, 20-79; namely, wrong and injury mu!:t combine, 22-34; their required magnitude, 35, 36; must he cause and effect, 37-39 ; proximity of effect to act, 40-48 ; consent or waiver, 49- 53; merits or demerits of party complaining, 54-65; limitations from procedure, 66-69; tort being also crime, 70, 71; being also a breach of contract, 72-78. FOUNDEROUS, rights when way is, 162. FOWLS, (See Domestic Animals.) how deal with trespassing, 943, 946. FOX, trespass in pursuit of, 1248. FRACTIONS OF DAY, in computation of time, 1083. FRAUD, (SeeDKCEiT.) to be actionable, must result in injury, 33. in form of conspiracy, 358. infants liable for, 565. supplying means to commit, 608, note. servaut liable for, in behalf of master, 625. corporation may be chargeable with, 730. entering dwelling house by, 816. effect of, on ownership of goods, 933. one getting permission by, to ride in cars, 1094. on carrier, as to contents of package, 1154, 1155; as to value, 1188. FRAUDULENT, representation in cheat must be, 329. FRAUDULENT SALES, as actionable deceit, 319. FREE TICKET, (See Fare — Gratuitous Carriage.) liability of railroad to one riding on, 1076, 1092. carrier not insure baggage of one riding on, 1153. FREIGHT AGENT, receiving passenger's baggage, 1158. FREIGHT CARS, riding on, 1078, 1081, 1106. FRESHETS, provisions against, in dams, &c., 440. FRIEND, relation of, as privilege in libel, 304. FRIEND OF PASSENGER, railroad's accountability to, at depot, 1109. FRIGHTENING HORSES, (See Horse.) by things in street, 976, 985. FRONT OF TRAIN, crossing railroad immediately in, 1045. FUNDAMENTAL PRINCIPLES. (See Foundation Principles ) FUTURE FACT, (See Fact.) statement of, in deceit, 324, 325. 48 753 GBA INDEX OP SUBJECTS. FUTURE OF OUR LAW, (See Codification— Common Law.) Conclusions as to the, full, 1300-1306, 1338-1350. GAME. (See Hunting ) GAMES. (See Pastimes.) GAS, sending servant into room where, is escaping, 649. fires negligently set by, 834. GAS COMPANY, as corporation, 768, note. GAS-HOUSE, whether, nuisance, 426. GATE, whether right to erect, across private, way, 874. effect of, at railroad crossing, 1044. GENTLEMEN, excluding, from ladies' waiting-room, 1087. GIVING INFORMATION, (See Information.) whether, will found malicious prosecution suit, 230. " GOOD," saying one is, in deceit, 825. GOOD FAITH, in claim of ownership, 343, 351. due from employer to infant, 547. GOODS, (See Merchandise — Unlading.) how one may use own, 102. obtaining, by fraudulent conspiracy, 358. one injuring another's, by wrongful act, 929. intermixtures of, 938. GOODS ABANDONED, law of, 935. GOVERNMENT, (See Codification — Common Law.) Influence on, of differing proposed legal reforms, full, 1307-1350 ; namely, law as embodied reason, two systems, 1308-1314; qualifying for gov- ernmental work, 1315-1319 ; further of common law and its needs, 1320-1326; our legal text-hooks and need of Jurists, 1327-1337; con- clusions as to reform demanded, 1338-1346 ; education for governmental functions, 1347-1350. right of, to change laws, 15. GOVERNMENTAL AGENCY, municipality as a, 749, 755-757, 758, note. GOVERNMENTAL CONTROL, (See Person — Property.) Of person and property, full, 91-96. GOVERNMENTAL FUNCTIONS, municipal corporation possesses, 738, 739, 743, 744, 749, 755. GRADE CROSSING, traveller's rights at a, 1048. GRADE OF STREET, (See Public Wat.) Doctrine of, full, 997-999. GRADES OF TRESPASS, on railroad track, varying, 1035. GRAIN, of different owners, intermingled by warehouseman, 938. GRANT, (See Contract.) nuisance authorized by, 420. 754 INDEX OP SUBJECTS. HEA GRANT — con^inuerf. private ways by, 869. easements in light and air by, 923. GRANTEE, of building, liabilities of, for its condition, 858. GRANTOR AND GRANTEE, liabilities as between, to third persons, 858. GRASS, on street, who own, 990. GRATUITOUS CARRIAGE, (See Fare — Free Ticket.) responsibility for negligence in, 1076. for baggage in, 1153 ; for parcel, 1189. GRAVEL IN STREET, using, in repair of street, 990. GROSS. (See In Gross.) GROSS, GROSSEST, in negligence, 441. GROSS NEGLIGENCE, railroad injuring trespasser on cars by, 1094. GROUNDS, about railroad station, how, 1086, 1099, 1100. GUARDING, dangerous places outside of street, 994. GUEST, (See Baggage — Inn — Traveller.) liability of innkeeper for goods of, 1166, 1171-1179. how conduct, innkeeper must receive, 1168; who is, 1169-1172. GUN, (See Loaded Firearms.) battery by noise from, 192. selling unsafe, as being safe, 321. GUN-CASE, may be traveller's baggage, 1156, note. GUN-POWDER, careless keeping of, nuisance, 417. GUNS AND NOISE, frightening away customers by, 421. GUTTER, whether, is obstruction in street, 975. HABITATION, (See Castle — Dwelling-house. ) trade nuisances to, 418. spring-guns to protect the, 847. HARBORING, apprentice, 369. HARM, (See Wilful Injury.) what the, in nuisance, 416 ; and whether, must be accomplished, 417. HARMFUL THING, annoyance from, nuisance, 421. HATCHWAY UNLIGHTED, injury from falling down, 927. HAWKING, in street, before one's house, 1011. HAYRICK, damage by spontaneous ignition of, 445, 884. HEADLIGHT, HEADLIGHTS, required, running cars without, 38, 1024. railroad servant injured because no, and because not lit, distin- guished, 672. HEALTH, (See Board of — III Health.) rendering atmosphere injurious to, 416. 755 HOB INDEX OP SUBJECTS. HEARERS, understanding of words by, in slander, 276, 277. HELPERS, legal treatises made by, 1336. HENS, (See Domestic Animals.) how deal with trespsissing, 943, 946. HERBAGE, removing, from street, 990. HEREDIT ABLE, whether private way in gross is, 868. HIGHWAY, (See Bridge — Condition — Ferry — Public Wat.) to be safe against horses taking fright in, 529, 748. leaving things in, 529-531. railroad frightening horses in, 611. setting trap near, when actionable, 853. and private way, distinguished, 866, note. meaning of term, 948, 949. obstructed by cars at crossing, 1048. animals escaping while driven on, 1224. HIRED GOODS, (See Bailee.) innkeeper's Hen on, 1181. HIRED HORSE, HORSES, (See Hobse.) tort of driving, contrary to contract, 76. negligence of driver furnished with, 1145. HIRED SERVANT, seducing away, 370-372. HIRER, (See Bailee.) of goods, what a conversion by, 405. of horse, responsibility of, 928. HISSING ACTOR, to ruin hun, 359. HITCHING-POST, whether, defect in street, 975. " HOARY-HEADED FILCHER," words, as libel, 283. HOGS, whether fences for protection against, 800, note. HOMAGE, whether corporation can do, 721, 722. how corporation hold lands in, 721. HOMICIDE, (See Killing — Murder.) in defence of self and castle, 944 ; of property, 945, 946. HONESTY OF UTTERANCE, in defamation privilege, 295. HONEY, ownership of, found in a tree, 1250. HOOPS, made from standing trees, ownership of, 939. HORSE, HORSES, (See Frightening — Hired — Skittish.) injuries from being run over by, 25 ; from, running away,' 182. riding a, after person, an assault, 191. striking a, on which one is riding, a batteiy, 192. taking fright and doing injury, 195. driving hired, contrary to agreement, 405. found, whether must feed, 446. injured by negligence as to fence, 456, 806. damage from, frightened, in street, 457. injuries to, hitched in public way, 465. 756 INDEX OP SUBJECTS. HUM HORSE, HORSE S — continued. frightened by things in street, 529, 531. infant shooting neighbor's, 550. frightened by minor child, 552. infant misusing hired, 567. driving, by infant, to place not agreed, 567. stable keeper's servant injuring, by exercise, 612. ■whether, is a " plant," 689, note. city licensing what will frighten, 748. in trespass, falling into a pit, 845. responsibility of hirer of, 928. liability for things in way frightening, 976, 985. imperfect in vision, taking, on highway, 1021. frightened in street by railroad, 1147. delivery of traveller's, to innkeeper, what, 1178. accustomed to kick, going at large, 1225. hirer of, overloading or iU-treating, 1228. HORSE CARS, steam railroad running, 733. occupying street by, and whether impose new servitude, 980. HORSE-RACE, false riding in, as cheat, 321. HORSE-RACING, on Sunday, 64. is not travelling, 1009. HORSE RAILROAD, (See Travelling.) TraveUing hy,futt, 1116-1126. HORSE-SHED, partly on street, abatement of, 430. HORSE-SHOE, loosening, as deceit, 332. HORSEBACIC, law of road as to persons on, 1016. HORSES AND DRIVER, liability of hirer of, for driver's negligence, 1145. HOTELS, (See Inn.) Law of, full, 1165-1181. HOUSE, (See Dwelling-house — Roof.) burned by railroad sparks, 464. falling for want of repair, 843, note. ^ setting trap near another's, when actionable, 853. whether lateral support for, 906-90S. by public way, dilapidated and liable to fall, 971. HOUSE-OWNER, and corporation, joint liability of, for defective sidewalk, 962. HOUSE OF REFUGE, as corporation, 768, note. HOUSES IN BLOCK, lateral support after sales of, 911, 916. HUMAN FORCES, The superior, full, 173, 174. HUMAN LIFE, (See Homicide — Life.) duty of preserving, 125. IMP INDEX OP SUBJECTS. HUMAN WELFARE AND LIFE, deemed in law the highest interest, 1064. HUNTING, (See Fishing.) Law of, full, 1244-1252. HUNTING PRIVILEGES, possible differences of, between England and United States, 1244. HUSBAND, when no action by, for seducing wife, 51. how, commit rape on wife, 525. HUSBAND AND WIFE, (See Coverture— Wife.) Torts by and between, full, 537-543. ICE, (See Slippery CouDiTroN — Snow.) injuries from, on sidewalk, 978. IDEA, IDEAS, wrongful, actionable as deceit, 314. false notions concerning, as to copyright laws, 1335, note. IDENTIFICATION, of infant, with one having care of it, 581, note. " IDENTIFIED WITH CARRIAGE," doctrine of, 1070. IGNITION. (See Spontaneous.) IGNORANCE, (See Knowledge.) imputation of, in slander, 271. lawyers responsible for, 704, 705. ILL CONDUCT, when municipal corporation not answerable for, 743. ILL FAME. (See Bawdy-house.) ILL HEALTH, (See Health.) as damage in seduction, 382. ILL REPUTE, not justify defamation, 293. ILLEGAL ACT, required, to make trespass ab initio, 394. ILLEGAL CONTRACT. (See Contract.) IMMORAL BOOK, piracy of, copyright in, 58. IMMORAL SHOW, indictable, 1262. IMMORALLY SEDUCING, (See Seduction.) Female child or servant, full, 378-384. " IMP OF HELL," words, in libel, 282. IMPASSABLE, travel on-private land when way is, 162. IMPEACHMENT, whether legislator liable to, 778; judges liable, 780. IMPENDING, in nuisance, harm only, 417. IMPERATIVE TERMS, of statute, interpreted discretionary, 748. IMPLIED NOTICE, of defect in way, 966. IMPRISONMENT, of servant, liability to master for, 365. whether one escaping from, entitled to conveyance, 1061. IMPROVEMENTS, municipal corporation's liability as to, 746. IMPUTED NEGLIGENCE, (See Negligence.) of person having care of infant, 581-583. doctrine of, in travelling, 1070. 758 INDEX OP SUBJECTS. INF IN GROSS, concerning, and private ways as, 867, 868. INANIMATE THING, co-operating with negligence, 452. INCAPACITY, of child to be contributorily negligent, 586. INCOMPETENT SERVANT, duty of master to discharge, 655. INCORPORATED TOWNS. (See Municipal Corporation.) INCORPOREAL HEREDITAMENT, whether private way is, 866, note, 868. INCREASED FARE, requiring, when paid in car, 1080. INCREASING FLOW OP STREAM, wrong of, prescriptive right of, 895. INDEMNITY, promised, for doing wrong, whether recoverable, 55. due master from servant, for conseouences of negligence, 630. INDEPENDENT CAUSES, (See Two Causes.) Combining in negligence, fuU, 450-453. INDEPENDENT FORCE, non-responsibUity for, and when, 42, 43, 528. taking occasion of negligence, 453. doctrine of, in contributory negligence, 463. INDICTABLE, (See Civil ok Criminal — Crime.) when, to disobey law, 132. whether corporation is, 722. obstructions of public ways, and civil remedy, 950. INDICTABLE NUISANCE, when private action for, 424. INDICTMENT, defects in, as to malicious prosecution, 228. what discharge from, in malicious prosecution, 248, 249. liable to, when civil action, 355. civil remedy by, for killing human being, 1274. INDUCEMENTS, holding out, to trespassing, 853, 854. INEVITABLE, (See Necessity.) injuries from unfounded lawsuits are among the, 223. INEVITABLE ACCIDENTS, (See Accident — Common — Wind.) Doctrine as to, full, 176-184. giving false information as, 316. in slander of title, 345. by and to infants, 575, 576. at railroad crossings, 1049. in passenger carriage, 1103. coach proprietor not liable for, to passenger, 1129. from one's domestic animals, 1221. *' INFAMOUS," whether crime charged must be, in slander, 266, 267. INFANCY, INFANT, (See Child — Minor — Teacher and Pupil.) Law of, full, 544-591; namely, restraints and discipline of, 545-548; parent's liability for torts of infant child, 549-552; rights of parent as to torts inflicted on infant child, 553-559; infant's liabilities for own 769 INJ INDEX OP SUBJECTS. INFANCY, INFANT — confinued. torts, 560-569 ; his rights as to torts inflicted on him by others, 570, 571 ; negligence of others to infants, their contributory negligence, and that of persons having a care of them, 572-590. detaining, from custodian, 208. wrongfully celebrating marriage of, 341. assumptions of risks by, servant, 676. INFANT SERVANT, under contract, enticing, from service, 371. INFECTION, trespass to prevent the spreading of, 164. INFECTIOUS DISEASE, (See CosiTAGions Disease — Sick Febson — Small-fox.) taking out person sick with, 125. INFERIOR RIGHT, must yield to superior, 105-107. INFERIOR AND SUPERIOR, distinction of, as between servants, 666. "INFERNAL VILLAIN," words, as libel, 283. INFIRM PASSENGER, getting fare from, 1095. special attention due, 1124. INFORMATION, (See Direction to Passenger — Giving In- formation.) Duty of master to impart, to servant, full, 651, 652. duty of railroad to impart, to passengers, 1081. INGRATITUDE, written charge of, actionable, 282. INGRESS AND EGRESS, right of abutter on street to, 992. railroad to furnish passengers suitable, 1090, 1099-1101. INHABITANT, INHABITANTS, constitute body of municipal corporation, 738, 739. whether notice of defect in way to, is notice to municipality, 966. INJUNCTION, (See Equity.) for trespass to land, 68. against conspiracy, 356. as remedy for nuisance, 417, 428, 429. ag^nst removing lateral support, 909. to prevent obstruction of navigable waters, 953. to abate private nuisance in street, 993. INJURED, professional accountability only to person, 702. INJURIES TO ANIMALS, how redressed, 1228. INJURIES TO BUILDINGS, considered as done to the land, 814. INJURIES FROM DOGS, owners responsible or not for, 1234-1239. INJURING FENCE, liabilities for, 805. INJURIOUS BY-LAW, municipal corporation not answerable for, 744. INJURY, (See Legal — Purposed — Wilful.) Person receiving the, in defamation, being or not in a condition to com- plain, full, 290-294. 760 INDEX OP SUBJECTS. INS INJURY— continued. to be actionable, must be legal, 26; nature of, 29. inflicting, by enforcing rights, 103. when implied from wrong, in slander, 275. must be, for deceit to be actionable, 317, 318. committing, by putting out dangerous articles, 413. whether negligence presumed from, 443. in negligence, must come from wrong, 448. rule that redress follows, 487, 494. actionable or not, according to case, 828, 829. INJURY AND WRONG, Must combine, to create liability, full, 22-34. INN, INNS, (See Baggage — Hotels — Traveller.) Law of, full, 1165-1181. entered by permission of law, misconduct in, 392. boarding-houses are not, 1182. INNKEEPER, duty of, to receive guest, 392. not paying biU of, as making trespass ab initio, 394. exposing guest to small-pox, 414. insane, responsible for guest's goods, 509. liable for assaults by servants on guests, 611. INNKEEPER AND OSTLER, liabilities of, 1113, note. INNOCENCE, essential, in malicious prosecution, 229. INSANE PASSENGER, how railroad treat, 1115. INSANITY, (See Drunkenness — Intent.) Effect of, full, 505-510. when negligently producing, not actionable, 44. INSPECTION, of railroad track, what, 1024. INSTIGATING SUIT, (See Suit.) when, actionable, 489. INSTRUCTION, INSTRUCTIONS, (See Knowledge.) Duty of master to impart, to seroant, full, 651, 652. servant disobeying, when master liable, 610. ma.ster's duty to furnish, to servant, 683. patient not obeying physician's, 714. INSULTS, railroad protect passengers from, 1090. INSURER, master is not, of servant against accidents, 683. professional person not, of his work, 701. carrier not, of safety of passengers, 1063, 1129. carrier is, of passenger's baggage, 1152. releasing carrier from liability as, by contract, 1160. innkeeper is, of guest's effects, 1173, 1174. carriers of parcels are, 1185. whether telegraph company is, of message, 1206. how far carrier of animals is, 1218. 761 IBB INDEX OP SUBJECTS. INTENT, (See Conscious Falsity — Drunkenness — Evil Mo- tives — Insanity — Intentional Tort — Malice — Motive — Premeditated Wrong — Purposed — Wilful Injury — Wilfulness.) The, in non-contract wrongs, full, 496-504. law of tort and crime distinguished as to, 16. in trespass to property, 30. in slander, and refusing vote, 31. in appropriating what is another's, 101. injuries from evil, or not evil, distinguished,. 142, 143. • essential in malicious prosecution, 145. evil, enhances wrong, 149. the, in assault, 194, 195. act taking eflect contrary to, 202. malice a species of evil, 231-237. proof of, 234, 235. evil, essential in deceit, 316, 324, 329. the, in slander of title, 348. the, differing, in the di&rent seductiolis, 371. insanity as taking away, 505-507; drunkenness as, 511. corporations capable of, 721-725. of makers of statute, considered as motive, immaterial, 777. not material in trespass to land, 819. INTENT TO COMMIT CRIME, oral charge of, not actionable, 263. INTENTIONAL TORT, (See Intent — Tort.) contributory negligence not bar action for, 475. INTERESTS, (See Own.) Man^s control over own, full, 97-109. What, subjects of deceit, full, 318-321. words in defence of one's, as defamation, 303. asserting title to protect one's own, 345, 346, 351. pursuing own, to injmy of another, not necessarily actionable, 828, 829, 842. INTERMEDIATE FORCE, (See New Force.) in transmitting fii-e, 835, 836. INTERMIXTURES, of goods, law of, 938. INTERPRETATION, of words, in slander and libel, 277, 309. INTOXICATION, (See Drunkenness.) matter for jury, 513. INVALID, law that is, is no law, 113. INVENTIONS, master need not always adopt newest, in machinery, 646. INVISIBLE, corporation as being, 720, note, 722, note. IRRESISTIBLE FORCE, (See Necessity.) excuses tort, 498. 762 INDEX OP SUBJECTS. jUO IRRESPONSIBLE FORCE, co-operating with negligence, 452. combining with responsible, 527. IRRIGATION, right to use running waters for, 890-892. ITCH, charging one with, whether actionable, 282. JARRING, another's premises, nuisance, 416 JETTISON, justification.of, 163. JOINDER, (See Combinations.) Of persons and things in tort, full, 517-536; also, 39-45, 450-453 ' JOINT TORTS, rule as to, 518-525. JOURNEYMEN, seducing, from employment, 370. JUDGE, JUDGES, (See Bldnders- Court ^Judiciai Func- tions—Judicial Reasoning — Language of — Law ob Fact — Reasoning of — Words of.) not answerable for defamatory words, 296. misapprehensions of, 463. of municipal corporation, not suable, 745. impeachment of, 780. reasonings of, antagonistic to law's, 839 and note, duty of, in pronouncing a decision, 1327. JUDGMENT, (See Own Judgment.) perjured witness procuring, 342. in replevin, effect of, 399. oflBcer not responsible for mistaken exercise of, 786. officer executing process on void, protected, 792. JUDICIAL, question of jurisdiction viewed as, 783. JUDICIAL ABATEMENT, of public nuisance, 429. JUDICIAL ACT, not subject of lawsuit, 745. JUDICIAL AUTHORITY, no, over legislature, 777. JUDICIAL DECISIONS, (See Decisions.) and the multitudes of, how regarded, 1320-1327, 1338, 1340. JpDICIAL FUNCTIONS, (See Court — Judge.) Doctrine of, full, 779-784; quasi-judicial, full, 785-790. JUDICIAL MIND, reasons not apprehended by the, not res judicata, 908, note. JUDICIAL OPINIONS, how limitations in, interpreted, 757, ^ote. JUDICIAL OVERSIGHTS, some causes of, 908. JUDICIAL POWERS, possessed by municipal corporation, 739, 745, 746. JUDICIAL PROCEEDINGS, (See Proceedings.) when loss from, actionable, 223, 224. JUDICIAL PROCESS, (See Process.) abuse of, actionable, 490. JUDICIAL REASONING, (See Judge — Reasoniijo.) distinguished from reasonings of the law, 976, note. 763 KNO INDEX OP SUBJECTS. JUGGLER, injared while monopolizing street, 1010. JUMPING FROM CAR, in sudden danger, 1108. JURISDICTION, arrest having, 211. want of, in malicious prosecution, 228. what, over pupils in school, 591. officer exceeding his, 773. judicial officers acting within, outside of, and in excess of their, dis- tinguished, 783. other officers acting outside of their, 788, 790. ministerial officer acting with or without, 792. no suit for extraterritorial wrongs without, 1276. JURIST, JURISTS, work of, distinguished from that of judge, 839, note, 843, note. civil law the work of, 1174, note, 1309. JURIST WORKS, WRITINGS, (See Law Learning — Text- books.) The common law's need of, full, 839, note, 908, 1327-1341. needed to develop the law's reasonings, 976. to ascertain and state rules, 1325. JUROR, (See Cockt or Jurt.) not answerable for defamatory words, 297. not for official acts, 781. JURY, (See Law or Fact.) as to probable cause in malicious prosecution, 240. how far libel a question for, 308, 309. JUSTICE OF PEACE, induced by falsehood to marry persons, 341. not liable to civil suit, 781. acting without jurisdiction, 783. JUSTIFICATION, JUSTIFICATIONS, Of slander and libel, full, 287-310. the, in slander of title, 351. foreign tort for which the foreign law has a, 1280. KICK, whether disposition to, is " defect " in a " plant," 689, note. KICKING DOG, as contributory negligence, 1236. KILLING, (See Homicide — Life.) Human being, actionable wrong of, full, 1267-1274; namely, oX common 'law, 1268-1270; under statutes, 1271-1273. statute against, human being, construed as local, 1281. KILLING DOG, actionable, 1239. KING DO NO WRONG, English rale of, 774. KINSHIP, duties of, as privilege in libel, 304. KNOWLEDGE, (See Bklief — Ignorance — Instruction — Intent — Mistake of Fact — Notice — Relationship.) whether, of the falsity in deceit, 330. 764 INDEX OF SUBJECTS. LAN KNOWLEDGE — continued. of services due, in seduction, 369, 372, 377. in action for debauching, 883, 384, 388. as element in tort, 502. or not, by master, of dangers to servant, 645, 650. master's, of defect in machinery, 678. KNOWN DEFECTS, (See Defects in Way.) as to care in using public way, 1013. LABOR, (See Earn Money.) inability to, as damage in seduction, 382. attempting to shift responsibility of, on capital, 690. LACES, may be traveller's