THE LAW OF TORTS:

A TEEATISE ON THE
PEINCIPLES OF OBLIGATIONS AEISING FKOM CIVIL
WBONGS IN THE COMMON LAW:
TO WHICH IS ADDED THE

DRAFT OF A CODE OF CIVIL WRONGS

PEEPAKED FOE THE GOVEENMENT OF INDIA.

BY

SIR FREDERICK POLLOCK, BART.

OF LINCOLN'S INN, BARRISTER- AT-LAW ;

CORPUS PROFESSOR OF JURISPRUDENCE IN THE UNIVERSITY OF OXFORD;

LATE FELLOW OF TRINITY COLLEGE, CAMBRIDGE; AND
HONORARY DOCTOR OF LAWS IN THE UNIVERSITY OF EDINBURGH.

Author of "Principles of Contract," "A Digest of the Law of Partnership ,"

SECOND EDITION,

LONDON :

STEVENS AND SONS, LIMITED,

119 & 120, CHANCERY LANE,
m imfr

1890.
 LONDON:
PBINTBD BY 0. F. EOWOETH, GEEAT NEW STREET, FETTEE LANE E.G.
 TO THE MEMOKY

OF

THE RIGHT HONOURABLE

SIR JAMES SHAW WILLES, KNT.

SOMETIME A JUSTICE OF THE COMMON BENCH,
A MAN COURTEOUS AND ACCOMPLISHED,
A JUDGE WISE AND VALIANT.
 TO THE HONOURABLE

OLIVER WENDELL HOLMES, JUNE.,

A JUSTICE OF THE SUPREME JUDICIAL COURT OF THE
COMMONWEALTH OF MASSACHUSETTS.

MY DEAR HOLMES,
A preface a formal and a tedious thing at best
is it ;

is at its worst when the author, as has been common in

law-books, writes of himself in the third person. Yet there
are one or two things I wish to say on this occasion, and
cannot well say in the book itself by your leave, therefore,
;

I will so far trespass on your friendship as to send the book

to you with an open letter of introduction. It may seem
a mere artifice, but the assurance of your sympathy will
enable me to speak more freely and naturally, even in print,
than if my words were directly addressed to the profession at
large. Nay more, I would fain sum up in this slight token
the brotherhood that subsists, and we trust ever shall,
between all true followers of the Common Law here and
on your side of the water; and give it to be understood,
for my own part, how much my work owes to you and to
others in America, mostly citizens of your own Common-
wealth, of whom some are known to me only by their published
writing, some by commerce of letters ;
there are some also,
fewer than I could wish, whom I have had the happiness of

meeting face to face.

WhenI came into your jurisdiction, it was from the

Province of Quebec, a part of Her Majesty's dominions
VI INTRODUCTION.

which governed, as you know, by its old French law,

is

lately repaired and beautified in a sort of Eevised Version

of

the Code Napoleon. This, I doubt not, is an excellent thing in

its place. And it is indubitable that, in a political sense, the

English lawyer who travels from Montreal to Boston

exchanges the rights of a natural-born subject for the comity
accorded by the United States to friendly aliens. But when
his eye is caught, in the every-day advertisements of the first

Boston newspaper he takes up, by these words " Common-

"
wealth of Massachusetts Suffolk to wit
: no amount of
politicalgeography will convince him that he has gone into
foreign parts and has not rather come home. Of Harvard
and its Law School I will say only this, that I have
endeavoured to turn to practical account the lessons of what
I saw and heard there, and that this present book is in some
measure the outcome of that endeavour. It contains the
substance of between two and three years' lectures in the
Inns of Court, and nearly everything advanced in it has been
put into shape after, or concurrently with, free oral exposition
and discussion of the leading cases.

My claim to your good will, however, does not rest on

these grounds alone. I claim
because the purpose of this
it

book is to show that there really is a Law of

Torts, not
merely a number of rules of law about various kinds of
torts that this is a true living branch of the Common Law,
not a collection of In such a
heterogeneous instances.
cause I make bold to count on your
sympathy, though I
will not presume on your final opinion. The contention is

certainly not superfluous, for

seems opposed to the weight
it

of recent opinion
among those who have fairly faced the
problem. You will recognize in my armoury some weapons
of your own forging, and
they are ineffective, I must have
if

handled them worse than I am

willing, in any reasonable
terms of humility, to
suppose.
 INTRODUCTION. Vll

It not surprising, in any case, that a complete theory

is

of Torts is yet to seek, for the

subject is altogether modern.
The earliest text-book I have been able to find a meagre
is

and unthinking digest of The Law "

of Actions on the Case
for Torts and Wrongs," published in 1720, remarkable
chiefly for the depths of historical ignorance which it occa-

sionally reveals. The really scientific treatment of principles

begins only with the decisions of the last fifty years their ;

development belongs to that classical period of our jurispru-

dence which in England came between the Common Law
Procedure Act and the Judicature Act. Lord Blackburn
and Lord Bramwell, who then rejoiced in their strength, are
still with us. It were impertinent to weigh too nicely the
fame of living masters ;
but I think we may securely antici-
pate posterity in ranking the names of these (and I am sure
we cannot more greatly honour them) with the name of their
colleague Willes, a consummate lawyer too early cut off, who
did not live to see the full fruit of his labour.
Those who knew Mr. Justice Willes will need no explana-
tion of this book being dedicated to his memory. But for
others I will say that he was not only a man of profound

learning in the law, joined with extraordinary and varied

knowledge of other kinds, but one of those whose knowledge
is radiant, and kindles To set down all I
'

answering fire.
owe to him is means, and might be beyond your
beyond my
patience but to you at least I shall say much in saying that
;

from Willes I learnt to taste the Year Books, and to pursue

the history of the law in authorities which not so long ago
were collectively and compendiously despised as " black
letter." It is strange to think that Manning was as one

crying in the wilderness, and that even Kent dismissed the

Year Books as of doubtful value for any purpose, and
certainly not worth reprinting. You have had a noble
revenge in editing Kent, and perhaps the laugh is on our
 INTRODUCTION.

side by this time. But

any man. still finds offence, you
if

and I are incorrigible offenders, and like to maintain one

another therein as long as we have breath and when you ;

have cast your eye on the historical note added to this book
by my friend Mr. F. W. Maitland, I think you will say that
we shall not want for good suit.
One more thing I must mention concerning "Willes, that
once and again he spoke or wrote to me to the effect of

desiring to see the Law of Obligations methodically treated

in English. This is an additional reason for calling him to
mind on the completion of a work which aims at being a

contribution of materials towards that end: of materials

only, for a book on Torts added to a book on Contracts does

not make a treatise on Obligations. Nevertheless this is a
book of principles if it is
anything. Details are used, not in
the manner of a digest, but so far as they seem called for to
develop and illustrate the principles; and I shall be more
than content if in that regard you find nothing worse than
omission to complain of. But the toils and temptations of
the craft are known to you at first hand I will not add the;

burden of apology to faults which you will be ready to forgive

without it. As to other readers, I will hope that some
students may be thankful for brevity where the conclusions
are brief, and that, where a favourite topic has invited expa-
tiation or digression, some practitioner may some day be
helped to his case by it. The work is out of my hands, and
will fare as it may deserve in your hands, at any rate, it is
:

sure of both justice and mercy.

I remain, yours very truly,

FEEDEEICK POLLOCK
LINCOLN'S INN,
Christmas Vacation, 1886.
 ADVERTISEMENT
TO THE SECOND EDITION.

THIS edition has been revised with regard to recent deci-

sions, and, in particular, several pages of the chapter on

Negligence have been re-written.

The references to the Law Journal are now brought down

to date.

The same forms of citation are used as in my book on

"
Principles of Contract," 5th ed., 1889.

My cousin Mr. Dighton N. Pollock, of Lincoln's Inn, has

given me valuable help in the revision and enlargement of

the Index.

F. P.
LINCOLN'S INN,
Easter, 1890.
 TABLE OF CONTENTS.

BOOK I.

GENERAL PART.

CHAPTER I.

THE NATUBE OP TOUT IN GENEBAL.

PAGE
Absence of authoritative definition . . . . . . . . . . 1

Historical distinctions . . . . . . . . . . . . . . 5
Personal wrongs . . . . . . . . . . . . . . . . 7

"Wrongs to property . . . . . . . . . . . . . . 7
Wrongs affecting person and property . . . . . . . . . . 7
Wilful wrongs . . . . . . . . . . . . . . . . 8

Wrongs unconnected with moral blame . . . . . . . . . . 9

Wrongs of imprudence and omission . . . . . . . . 10

Historical anomaly of law of trespass and conversion . , . . , . 12
Early forms of action . . . . . . . . . . . . ..13
Rationalized version of law of trespass . . . . . . . . . . 15
Analogies of Roman law . . . , . . . . . . . . 16
Dolus and Culpa . . . . . . . . . . . . . . 17
Liability quasi ex delicto . . . . . . . . . . . . . . 18
\J Summary of results . . . . . . . . . . . , . . ..18

CHAPTER II.

PRINCIPLES OF LIABILITY.

Want of generality in early law . . . . . . . . . . . . 21

General duty not to do harm in modern law . . . . . . 22
Breach of specific legal duty . . . . . . . . . . 23
Duty of respecting property . . . . . . . . . . 24
Duties of diligence . . . . . . . . . . . . . . 24
Assumption of skill . . . . . . . . . . . . . . 24
Exception of action under necessity . . . . . . . . . . 25
Xll TABLE OF CONTENTS.

PAGE
26
Liability in relation to consequences of act or default. . , . . .

Measure of damages . . . , . . . , . . . . . . 27
" Immediate cause " . . . . . . . . . . . . . . 28
29
Liability for consequences of wilful act . . . . . . . .

" Natural " . . 30

consequences . . . . . . . . . . . .

" Natural and " .. .. .. .. ..31

probable consequence
34
Liability for consequences of trespass . . . . . . . .

35
Consequences too remote . . . . . . . . . . . . , .

Liability for negligence . . . . . . . . . . . . . . 36

Contrasted cases of non-liability and liability : Cox v. Burbidge ;

Lee v. Riley 40

Metropolitan Rail. Co. v. Jackson . . . . . . . . 41

Non-liability for consequences of unusual state of things :

Blyth v.

Birmingham Waterworks Co. . . . . . . . . . . 42

Sharp v. Powell 42
Whether same rule holds for consequences of wilful wrong : Clark v.

Chambers . . . . . . . . . . . . . . . . 43
Consequences natural in kind though not in circumstance . . . . 45
" "
Damages for nervous or mental shock . . . . . . 45

CHAPTER III.

PEESONS AFFECTED BY TORTS.

1. Limitations of Personal Capacity.

Personal status immaterial in law of tort : but capacity material . . 48

Exceptions : Convicts and aliens . . . . . . . . . . . . 49
Infants . . . . . . . . . . . . . . . . 49
Married women the common law : . . , . . . . . . . 51
Married Women's Property Act, 1882 .. .. .. .. ..51
Common law liability of infants and married women . . . . . . 53
Corporations . . . . . . . . . . . . . . . . . . 53
Responsibility of public bodies for management of works under their
control . .. . . . . . . . . . . . . . . . 53

2. Effect of a Party's Death.

Actio personalia moritur cum persona , . . . . . . . . . 54
Qu. of the extension of the rule in Osborn v. G-illett . . . . . . 57
Exceptions : Statutes of Edw. III. giving executors right of suit for
trespasses . . . . . . . . . . . . . t 59
Of Will. IV. as to injuries to property . . . . . . . . 59
No right of action for damage to personal estate consequential on
personal injury .... . . . . . , 60
Lord Campbell's Act :
rights created by it 60
 TABLE OF CONTENTS. Xlll

PAGE
Construction . . . . . . . . . . . . . . . . . . 62
Interests of survivors distinct . . . . . . . . . . 63
Statutory cause of action is in substitution not cumulative . , 63
Scottish and American laws . . . . . . . . . . 64
Right to follow property wrongfully taken or converted . . 64
Rule limited to recovery of specific property or its value :
Phillips v.

Homfray . . . . . . . . ... . . . . . . 65

3. Liability for the Torts of Agents and Servants.

Command of principal does not excuse agent's wrong . . 66

Cases of special duty, absolute or in nature of warranty, distin-
guished . . . . . . . . . . . . . . . . 67
Modes of liability for wrongful acts of others : command and ratifi-

cation . . . . . . . . . . . . . . . . . , 68
Master and servant . . . . . . . . . . . . . . 69
Reason of master's liability . . . . . . . . . . . . 69
Who is a servant .. .. .. .. .. .. .. ..71
Specific assumption of control . . . . . . . . . . 73
Temporary transfer of service . . . . . . . . . . 74
"Power of controlling the work
" 74
explained . . . . . .

What is in course of employment . . . . . . . . . . 75

(a) Execution of specific orders . . . . . . . . 76
(b) Negligence in conduct of master's business . . . . 76
Departure or deviation from master's business . . 77
(c)
Excess or mistake in execution of authority . . . . 80
Interference with passengers by guards, &c. . . . . 80
Arrest of supposed offenders . . . . . . . . 81
Act wholly outside authority master not liable : . . . . 82
(d) Wilful trespasses, &c., for master's purposes .. ..83
Fraud of agent or servant . . . . . . . . 84
Liability of firm for fraud of a partner . . . . . . 86
Injuries to servants by fault of fellow- servants . . . . 87
Common law rule of master's immunity. . . . . . . . 87
Reason given in the later cases . . . . . . . . . . 88
Servants need not be about same kind of work . . . . . . . . 89
Provided there is a general common object . . . . . . . . 90
Relative rank of servants immaterial . . . . . . . . . . 91
Servants of sub -contractor. . . . . . . . . . . . . . 92
Volunteer assistant on same footing as servant . . . . . , 92
Exception where master interferes in person . . . . . . . , 93
Employers' Liability Act, 1880 93
Resulting complication of the law . . . . . . . . . . 94
 TABLE OF CONTENTS.

CHAPTER IV.

GENEBAL EXCEPTIONS.
PAGE
Conditions excluding liability for act prima facie wrongful . . . . 96
General and particular exceptions . . . . . . . . . . 97

1. Acts of State.
Acts of state 98
General ground of exemption
Local actions against viceroy or governor . . . . . . . . 100
Acts of foreign powers . . . . . . . . . . . . . . 101

Summary . . . . . . . , . . . . . . . . . . 102

2. Judicial acts.

Judicial acts . . . . . . . . . . . . . . . . 103

Liability by statute in special cases . . . . . . . . . . 104
Judicial acts of persons not judges . . . . . . . . . . 1 04

3. Executive acts.
Executive acts . . . . . . . . . . . . . . . . 105
Acts of naval and military officers .. .. .. .. ..107
Of other public authorities . . . . . . . . . . . . 108
Indian Act XVIII. of 1850 108

4. Quasi-judicial acts.

Acts of quasi- judicial discretion . . . . . . . . . . . . 108

Rules to be observed . . . . . . . . . . . . . . 109
Absolute discretionary powers .. .. .. .. .. ..110
Whether duty judicial or ministerial :
Ashby v. White . . . . Ill

5. Parental and Quasi -parental Aiithority.

Authority of parents .. .. .. .. .. .. ..Ill

Of custodians of lunatics .. .. .. .. .. .. ..112

6. Authorities of Necessity.
Of the master of a ship .. .. .. .. .. .. ..112

7. Damage incident to authorized acts.

Damage incidentally resulting from lawful act .. .. ..113

Damage from execution of authorized works .. .. .. ..114
No action for unavoidable damage .. .. .. .. ..115
Care and caution required in exercise of discretionary powers .. 116

8. Inevitable Accident.

Inevitable accident resulting from lawful act .. .. .. ..119

On principle such act excludes liability .. .. .. .. ..121
Apparent conflict of authorities . . . . . . . . . . . . 122
 TABLE OF CONTENTS. '

XV

PAOE
American decisions : The Nitro- Glycerine Case (Sup. Ct. U. S.) , . 123
Brown v. Kendall (Mass.) 125
Other American cases . . . . . . . . . . . . . . 125

English authorities : cases of trespass and shooting . . . . . . 127

Cases where exception allowed . . . . . . . . . . , . 130

9. Exercise of Common Rights.

.
Immunity in exercise of common rights . . . . . . . . 133

Digging wells, &c., in a man's own land . . . . . . . . 137

Chasemore v. Richards 137
Other applications of same principle .. .. .. .. ..138
Whether malice material in these cases .. .. ,. .. ..141
Roman doctrine of "animus vicino nocendi ".. .. .. ..141
No exclusive right to names . . . . , . . . . . . . 143

10. Leave and Licence : Volenti nonfit iniuria.

/* Consent or acceptance of risk

Express licence . . . .
..

. .
..

. .
..

. .
..

. .
..

. ,
..143
. . 144
Limits of consent . . . . . . . . . . . . . . . . 144
Licence obtained by fraud .. .. ,. .. .. .. .. 147
Extended meaning of volenti nonfit iniuria, . . . . . . . . 148
Relation of these cases to inevitable accident . . . . . . . . 149
Knowledge of risk opposed to duty of warning . . . . . . 150
Thomas v. Quartermaine . . . . . . . . . . . . . . 151
Distinction from cases where negligence is ground of action . . . . 152 ./

11. Works of Necessity .. ., ..153

12. Private Defence.

Self-defence 155
Killing of animals in defence of property . . . . . . . . 156
Assertion of rights distinguished from self-defence .. .. ..157
Injury to third persons in self-defence . . . . . . . . . . 158

13. Plaintiff a Wrong -doer.

Harm suffered by a wrong-doer . . . . . . . . . . . . 159
Sunday travelling : conflict of opinion in TJ. S. ,. .. ..161
Cause of action connected with unlawful agreement .. ,. .,161

CHAPTER V.

OF REMEDIES FOE TORTS.

Diversity of remedies . . . . . . . . . . . . . , 162

Self-help 163
Judicial remedies :
damages .. .. .. .. .. ..164
Nominal damages .. .. .. .. .. .. ,. ., 165
 XVI TABLE OF CONTENTS.

PAGE
Nominal damages possible only when an absolute right is infringed 166
Cases where the damage is the gist of the action . . . . . . 167
^Peculiarity of law of defamation .. .. .. .. .. ,.168
Ordinary damages .. .. .. .. .. .. .. ..169
Exemplary damages .. .. .. .. .. .. .. 170
Analogy of breach of promise of marriage to torts in this respect . . 172
Mitigation of damages .. .. .. .. .. .. ..173
Concurrent but severable causes of action .. .. .. ..173
Injunctions .. .. , . .. .. .. .. .. ..174
On what principle granted . . . . . . . . . . . . 174
Former concurrent jurisdiction of common law and equity to give
compensation for fraud , . . . . . . . . . . . ..175
Special statutory remedies when exclusive . . . . . . . . 176
Joint wrong-doers .. .. .. .. .. .. .. .. 178
Bules as to contribution and indemnity .. .. .. .. ..179
" "
Supposed rule of trespass being merged in felony . . . . . . 180
No known means of enforcing the rule if it exists .. .. ..181
Locality of wrongful act as affecting remedy in English Court . . 183
Acts not wrongful by English law .. .. .. .. ..183
Acts justified by local law. .. . .. .. .. .. .. 183
Act wrongful by both laws . . . . . . . . . . . . 184
Phillips v. Eyre 185
Limitation of actions .. .. .. .. .. .. ..188
Suspension of the statute by disabilities .. .. .. .. ..188
Special protection of justices, constables, &c. . . . . . . . . 189
Exception of concealed fraud . . . . . . . . . . . . 189
Conclusion of General Part .. .. .. .. .190

BOOK II.
SPECIFIC WRONGS.

CHAPTEE VI."

PERSONAL WRONGS.

I. Assault and Battery.

What is a battery 191
What an assault . . . . . . . . . . . . . . . . 192
Excusable acts .. .. .. .. .. .. .. .. 194
Self-defence 196
Menace distinguished from assault .. .. .. .. ..196
Summary proceedings when a bar to civil action . . . . . . 197
 TABLE OF CONTENTS. XVH

II. False Imprisonment. PAGE

What is false imprisonment . . . . . . . . . . . . 197
Justification of arrest and imprisonment . . . . . . . . 199
Who is answerable . . . . . . . . . . . . . . . . 200
Reasonable and probable cause . . . . . . . . . . . . 202

III. Injuries in Family Relations.

Protection in personal relations . . . . . . . . . . . . 203

Historical accidents of the common law herein . . . . . . . . 204
Trespass for taking away wife, &c., and per quod servitium amisit . . 205
' '
Criminal conversation" . . . . . . . . . . . . . . 206
Enticing away servants . . . . . . . . . . . . . . 206
Actions for seduction in modern practice . . . . . . . . 208
Damages . . . . . . . . . . . . . . . . . . 209
Services of young child . . . . . . . . . . . . . . 210
Capricious operation of the law .. .. .. .. .. ..210
Constructive service in early cases .. .. .. .. ..211
Intimidation of servants and tenants . 212

i CHAPTER VII.

DEFAMATION, ir

Civil and criminal jurisdiction .. .. .. .. .. ..214

Slander and libel 214

1. Slander.
When slander is actionable .. .. .. .. .. ..216
" " ..216
Meaning of prima facie libellous .. .. .. ..

Special damage .. .. .. .. .. .. .. .. 217

Repetition of spoken words .. .. .. .. .. ..218
Special damage involves definite temporal loss . . . . . . . . 218
Imputation of criminal offence .. .. .. .. .. ..219
Charges of mere immorality not actionable . . . . . . . . 220
Imputation of contagious disease .. .. .. .. ,.221
Evil- speaking of a man in the way of his business . . . . . . 221
Words indirectly causing damage to a man in his business . . . . 223

2. Defamation in general.
Defamation . . . . . . . . . . . . . . . . . . 224
"Implied malice" .. .. 224
What is
publication . . . . . . . . . . . . . . 224
Vicarious publication . . . . . . . .
% . . . . . . 226
Construction of words : Innuendo .. .. .. .. ..227
Libellous tendency must be probable in law and proved in fact . . 228
Repetition and reports may be libellous .. .. .. .. .. 229
p. b
 TABLE OF CONTENTS.

3. Exceptions.
PAGE
23(
Exceptions : fair comment . . . .

232
What is open to comment, matter of law . . . . .

Whether comment is fair, matter of fact

232

Justification on ground of truth 233

Must be . . . 23^
substantially complete . . . . . . .

Defendant's belief immaterial . . . . . . . . 235

235
Parliamentary and judicial immunity . , . . . . . .

Other persons in judicial proceedings .. .. .. ,.236

Reports of officers, &c. . . . . . . . . . 237
" ..237
Qualified immunity of privileged communications" ..

Conditions of the privilege .. .. .. .. .. ..238

" " 238
Express malice .. . . . . . . . . . .

What are privileged occasions . . . . . . . . . . . . 239

Moral or social duty . . . . . . . . . . . . . . 239
Self -protection 240
Information for public good . . . . . . . . . . . . 241
Fair reports 242
Parliamentary papers . . . . . . . . . . . . . . 242
Parliamentary debates and judicial proceedings . . . . , . 242
Volunteered reports . . . . . . . . . . . . . . 244
Excess of privilege . . . , . . . . . . . . . . . . 245
Honest belief is not necessarily reasonable belief . . . . . . 245
Power of jury in assessing damages . . . . . . . . . , 246
Statutory defences . . . . . . . . . . . . . . . . 246
Limits of interrogatories in action for libel . . . . . . . . 246

CHAPTER VIII.
WEONGS or FBAUD AND MALICE.

I. Deceit.
Nature of the wrong . . . . . . . . . . . . . . 247
Concurrent jurisdiction of common law and
equity . . . . . . 247
Difficulties of the subject complication with contract
:
. . . 248
Questions of fraudulent intent . . . . . . . . . . 249
Fraud of agents . . . . . . . . . . . , . . . . 250
General conditions of right of action .. .. .. .. ..250
(a) Falsehood in fact . . . . . . . . , . . t 252
Misrepresentations of law . . . . . . . . . . 253
Falsehood by garbled statements . . . . . . 254
(b) Knowledge or belief of defendant . . , . . . . 254
Representations subsequently discovered to be untrue . . 257
Reckless assertions . . . . , . . . . . 259
Breach of special duty to give correct information 259 . .

False assertion as to matters within

party's former know-
ledge .
t 260
 TABLE OF CONTENTS. XIX

PAGE
(c) Intention of the statement .. .. .. .. ..261
Representations to class : Polhill v. Walter .. .. ..263
Denton v. G. N. R. Co 263
Peek v. Gurney . . . . . . . . . . . . . . 264
(d) Reliance on the representation . . . . . . . . 264
Means of knowledge immaterial without independent -in-

quiry . . . . . . . . . . . . . . . . 265
Perfunctory inquiry will not do . . . . . . . . 266
Ambiguous statements .. .. .. .. .. ..267
(e) Lord Tenterden's Act 268
Quaere as to law under Judicature Acts . . . . . . 269
Misrepresentation by agents .. .. .. .. ..270
Liability of corporations herein . . . . . . . . 272
Reason of an apparently hard law . . . . . . . . 273

II. Slander of Title.

Slander of title 273
Recent extensions of the principle . . . . . . . . . . 274
Trade marks and trade names . . . . . . . . . . . . 276

III. Malicious Prosecution and Abuse of Process.

iMalicious prosecution .. .. .. .. .. .. ..277
Malicious civil proceedings . . . . . . . . . . . . 278

IV. Other malicious Wrongs.

Conspiracy . . . . . . . . . . . . . . . . . . 280
Malicious interference with one's occupation . . . . . . . . 284
Contract 285
Or franchise 285
Maintenance . . 286

CHAPTER IX.

WRONGS TO POSSESSION AND PEOPEETY.

I. Duties regarding Property generally.

Absolute duty to respect other's property 287

Title, justification, excuse. . .. .. .. 287

Title dependent on contract . . . . . . . . 288
faith 289
Exceptional protection of certain dealings in good . . . .

Common law 290

rights and remedies . . . . . . . .

Possession and detention .. .. .. .. .. ..291

293
Trespass and conversion . . . . . . . . . .

Alternative remedies. . . . . . . . . . . 294

XX TABLE OF CONTENTS.

II. Trespass. PAGE

What shall be said a trespass . . . . . . . . . . . . 295
Quaere concerning balloons . . . . . . . . . . . . 296

Trespass to goods . . . . . . . . . . . . . . . . 297

III. Injuries to Reversion.

Wrongs to an owner not in possession . . . . . . . . . . 298

IV. Waste.
What is waste 300
Modern law of waste : tenants for life . . . . . . . . . . 302
Landlord and tenant . . . . . . . . . . . . . . 303

V. Conversion.

Relation of trover to trespass . . . . . . . . . . . . 303

What amounts to conversion . . . . . . . . . . . . 305
Acts not amounting to conversion .. .. .. .. ..307
Dealings under authority of apparent owner . . . . . . . . 308
Acts of servants . . . . . . . . . . . . . . . . 309
Redelivery by bailees .. .. .. .. .. .. .. 310
Abuse of limited interest .. .. .. .. .. .. ..311
Conversion by estoppel . . . . . . . . . . . . . . 314

VI. Injuries between Tenants in Common.

Trespasses between tenants in

. -
common .. .. .. .. ..314

VII. Extended protection of Possession.

Rights of de facto possessor against strangers . . . . . . . . 315

Rights of owner entitled to resume possession .. .. ,. ..317
Rights of derivative possessors .. .. ,. .. .. ..318
Possession derived through trespasser .. .. .. .. ..319

VIII. Wrongs to Easements, $c.

Violation of incorporeal rights . . . . . . . . . . . . 320

IX. Grounds of Justification and Excuse.

Licence . . . . . . . . . . . . . . . . . . 322
Revocation of licence . . . . . . . . . . . . . . 323
Distinction from grant as regards strangers . . . . . . . . 326
Justification by law .... . . . . . . . . . . 327
Re-entry herein of forcible entry
: . . . . . . . . . . 327
Fresh re-entry on trespasser .. .. .. .. .. .. 330
Recaption of goods .. ., .. .. .. .. .. .. 331
 TABLE OF CONTENTS. XXI

PAGE
Process of law :
breaking doors . . . . . . . . . . . . 332
Distress . . . . . . . . . . . . . . . . . . 334
Damage feasant . . . . . . . . . . . . . . . . 334
Entry of diatrainor . . . . . . . . . . . . . . . . 335
Trespasses justified by necessity . . ... . . . . . . . . 336
Fox-hunting not privileged . . . . . . . . . . . . 338
Trespass ab initio . . . . . . . . . . . . . . . . 338

X. ^Remedies.

Taking or retaking goods . . . . . . . . . . . . . . 340

Costs where damages nominal .. .. .. .. .. ..341
Injunctions . . . . . . . . . . . . . . . . . . 342
Effect of changes in procedure . . . . . . . . . . . . 343

CHAPTER X.
NUISANCE.

Nuisance, public or private . . . . . . . . . . . . 344

Private right of action for public nuisance . . . . . . . . 345
Special damage must be shown . . . . . . . . . . . . 346
Private nuisance, what . . . . . . . . . . . . . . 348
Kinds of nuisance affecting
1. Ownership .. ., .. .. .. .. .. 349
2. Jura in re aliena . . .. .. .. .. .. .. 350
3. Convenience and enjoyment . . . . . . . . . . 350
Measure of nuisance . . . . . . . . . . . . . . 350
Injury to health need not be shown . . . . . . . . . . 351
Plaintiff not disentitled by having come to the nuisance . . . . 351
Innocent or necessary character of offensive occupation, or conveni-
ence of place, no answer . . . . 353 . . . . . . . .

Modes of annoyance . . . 354 . . . . . . . . . . .

Injury common to the plaintiff with others . . . . . . . . 356

Injury caused by independent acts of different persons . . . . 356
Obstruction of lights . . . . . . . . . . . . . . 357
Nature of the right to light 357
Any substantial diminution is a wrong . . . . . . . . . . 358

Supposed rule as to angle of forty-five degrees . . . . . . 358

Enlargement or alteration of lights . . . . . . . . . . 359

" Nuisance " to market or .. .. .. .. .. .. 360
ferry
Remedies for nuisance . . . . . . . . . . . . . . 361
Abatement . . . . . . . . . . t . . . . . 361
Notice to wrong-doer . . . . . . . . . . . . . . 362
Nuisances of omission . . . . . . . . . . . . . . 362
Old writs 364
 XX11 TABLE OF CONTENTS.

PAGE
Damages . . . . . . . . . . . . . . . . . . 364
Injunctions .. ,. .. .. .. .. .. .. .. 365

Difficulty or expense of abatement no answer . . . . . . . . 369

Parties entitled to sue for nuisance . . . . . . . . . . 370
Parties liable . 371

CHAPTER XI.
NEGLIGENCE.

. I. The general Conception.

Omission contrasted with action as ground of
General duty of caution in acts . . . .
liability
. . . .
. .

. .
.

. .
. 373
374
\
Overlapping of contract and tort .. .. .. .. ,. ..375
Definition of negligence . . . . . . . . , . , . . . 376
Standard of duty is external . . , . . . . . . . . . 378
Diligence includes competence . . . . . . . . . , . . 380

II. Evidence of Negligence.

Negligence a question of mixed fact and law . . . . 380

Burden of proof .. .. .. .. .. .. .. .. 381
"Where there is a contract or undertaking . . , . . . . . 383
Things within defendant's control . . . . . . . . . . 384
Common course of affairs judicially noticed . . . . . . . . 385
On evidence sufficient in law, question is for jury . . . . . . 385
Metropolitan R. Co. v. Jackson . . . . . . . . . . , , 386
Cases of level crossings . . . . . . . . . . . . . . 388
"Invitation to alight
" . . . . . , . . . . . . 390
Complications with contributory negligence . . . . . . . . 391
"Evidence of negligence: " Smith v. L. & S. W. R. Co. . . . . 391
No precise general rule . . . . 393
. . . . . . . . . .

Due care varies as apparent risk: application of this to accidents

through personal infirmity . . . . 393 . . . . . . , .

Distinction where person acting has notice of special danger to infirm

or helpless person . . . . . . .
. . 395 . , . . .

III. Contributory Negligence.

Actionable negligence must be proximate cause of harm: where

plaintiff's own negligence proximate cause, no remedy . . . . 395
Tuff v. "Warman 397
Radley v. L. & N. W. R. Co 398
Proximate " or " decisive
' ' " cause .. .. .. .. .. 401
Self -created disability to avoid consequences of another' s negligence . . 401
 TABLE OF CONTENTS.

PAGE
Earlier illustrations : Davies v. Mann . . . . . , . . , . 402
Butterfield v. Forrester . . . . . . . . . . . . . . 403
The exploded doctrine of " identification " . . . . . . . . 406
Accidents to children in custody of adult . . . . . . . . 409
Children, &c., unattended. .. .. . .. .. .. .. 410
Child v. Hearn .. .. ,. .. .. .. .. ..411
Admiralty rule of dividing loss ......... . ..412

IV. Auxiliary Rules and Presumptions.

Action under difficulty caused by another's negligence , . . . 413
No duty to anticipate negligence of others .. .. .. ..414
Choice of risks under stress of another's negligence , . . . . . 415
Clayards v. Dethick . . . . . . . . . . . . . . 415
Doctrine of New York Courts .. .. .. .. .. ..417
Separation of law and fact in United States .. .418

CHAPTER XII.
DUTIES OF INSURING SAFETY.

Exceptions to general limits of duties of caution . . . . . . 420

Rylands v. Fletcher
Exception of act of God . . . . . . . . . . , . . ,
421
427
1
Act of stranger, &c. . . . . . . . . . . . . . . 429
Authorized works . . . . . . . . . . . . . . . . 429
G. "W. R. Co. of Canada v. Braid 430
Other cases of insurance liability 431
Duty keeping in cattle
of . . . . . . . . . , . . . . 432
Dangerous or vicious animals .. .. .. .. .. .,433
Fire, firearms, &c. .. .. .. .. .. .. .. .. 434
Duty of keeping in fire . . . . . . . . . . , . , , 435
Carrying fire in locomotives . . . . . . . . , . . . 436
Fire-arms Dixon v. Bell
: . . . . . . . . . . . . , , 437
Explosives and other dangerous goods . . . . . . . , . . 438
Gas escapes . . . . . . . . . . . . . . . . . , 438
Poisonous drugs : Thomas v. Winchester 439
Difficulties felt in England :
George v. Skivington 440
Duties of occupiers of buildings in respect of safe repair . . . , 442
Modern date of the settled rule Indermaur v. Dames : . . , . 442
Persons entitled to safety . . . . . . . , . . . . . . 444
Duty in respect of carriages, ships, &c 446
Limits of the duty . . . . . . . . . . . . . . . . 448
Volenti nonjit iniuria .. .. .. .. .. .. .. 448
Duty towards passers-by . . , . . . . . . . . . . . 449
 TABLE OF CONTENTS.

PAGE
450
Presumption of negligence (res ipsa loquitur]
Distinctions . . . . . . . . . . . . 452
Position of licensees . . . . . . . . . . 453
Host and guest 455
" " ..456
Liability of licensor for ordinary negligence .. ..

Owner not in occupation . . . . . . . . . . . . . . 456

CHAPTER XIII.

SPECIAL RELATIONS OF CONTRACT AND TOET.

Original theory of forms of action . . . . . . . . . . 457

Actions on the case . . . . . . . . . . . . . . . . 458
Causes of action : modern classification as founded on contract or tort 459
Classes of questions arising .. .. .. .. .. .,460

1. Alternative Forms of Remedy on the same Cause of Action.

One cause of action and alternative remedies . . . . . . . . 460

Common law doctrine of misfeasance . . . . . . . . . . 460
Special duty of carriers and innkeepers by custom of the realm . . 463
Alternative of form does not affect substance of duty or liability . . 464
In modern law obligation wholly in contract . . . . . . . . 466
Limits of the rule . . . . . . . . . . . . . . . . 466

2. Concurrent Causes of Action.

Cases of tort, whether contract or no contract between same parties 468

Contract " implied in law
" and waiver of tort. . . . . . . . 469
Implied warranty of agent's authority . . . . . . . . . . 470
Concurrent causes of action against different parties . . . . . . 471
Foulkes v. Metropolitan Dis. R. Co. . . . . . . . . . . 472
Causes of action in contract and tort at suit of different plaintiffs . . 473
Alton v. Midland R. Co. qu. whether good law:
. . . . . . 474
Winterbottom v. Wright, &c. . . . . . . . . . . . . 477
Concurrence of breach of contract with delict in Roman law. . .. 478

3. Causes of Action in Tort dependent on a, Contract not between the same

Parties.

Causes of action dependent on a collateral contract . . . . . . 479

What did Lumley v. Gye decide ? . . . . . . . . . . 479
Special damage . . . . . . . . . . . . . . . . 430
Malice . . . . . . . . . . . . . . . . . , 480
Question of remoteness of damage .. .. .. .. ..481
Motive as an ingredient in the wrong . . . . . . . . . . 432
American doctrine . . . . . . . . . . . , . . , 433
 TABLE OF CONTENTS. XXV

PAGE
Wilful interference with contract .. .. .. .. ..483
Damage to stranger by breach of contract . . . . . . . , 484
Position of receiver of erroneous telegram : different views in

England and United States . . . . . . . . . . . . 485

The conflict considered on principle . . . . . . . . . . 487
Uncertainty still remaining in English doctrine . . . . . . 489
Character of morally innocent acts affected by extraneous contract . . 489

4. Measure of Damages and other incidents of the Remedy.

Measure of damages .. .. .. .. .. .. .. 491
Rule as to consequential damage .. .. .. .. .. ..492
Penal character of action for breach of promise of marriage . . . . 493
Contracts on which executors cannot sue . 494

APPENDIX.
A. Historical note on the classification of the forms of personal
action. (By Mr. F. W. Maitland.) 497
B. Employers' Liability Act, 1880 505
C. Statutes of Limitation :

21 James I., c. 16, ss. 3, 7 511

4 & 5 Anne, c. 3, s. 19 512
19 & 20 Viet. c. 97 (Mercantile Law Amendment Act), s. 12. . 513
T>. Contributory negligence in Roman law . . . . . . . . 514

INDIAN CIVIL WRONGS BILL.

PREFATORY NOTE 517

GENEEAL PAET
Chap. I. General principles of liability . . . . . . . . 521
II. General exceptions .. ., .. .. .. .. 530

SPECIAL PAET
III. Assault and false imprisonment . . . . . . . . 541
IV. Defamation 543
V. Wrongs against good faith . . . . . . . . 554
VI. Wrongs to property . . . . . . . . . . 559
VII. Nuisance . . . . . . . . . . . . . . 564
'VIII. Negligence 570
IX. Of damages for civil wrongs .. .. .. ..581
 INDEX OF CASES.

ABDUL HAKIM v. Tej Chander A.-G. v. Gas Light and Coke Co.,
Mukarji, 551. 117.
Abraham v. Reynolds, 455. v. Horner, 321.
Abrath v. N. E. Rail. Co., 277, v. Sheffield Gas Co., 366.
557, 558. v. Tomline, 134.
Ackers v. Howard, 111. Austin v. Dowling, 201.
Acton v. Blundell, 137, 138. v. G. W. Rail. Co., 464, 468,
Adams v. L. & Y. Rail. Co., 415. 469.
Adamson v. Jarvis, 179, 530. Aynsley v. Glover, 357, 358.
Addie v. Western Bank of Scot-
land, 85.
Agincourt, The, 113. B.
Alderson v. Waistell, 121.
Aldred's Case, 353, 566. Backhouse v. Bonomi, 167, 189.
Aldrich v. Wright, 156. Baddeley v. Earl Granville, 448,
Alexander v. N. E. Rail. Co., 234. 506.
Southey, 306.
v. Baker v. Sebright, 302.
Allbutt v. General Council of Baldwin v. Casella, 434.
Medical Education, 109, 243. v. Elphinston, 225.
Allen v. L. & S. W. Rail. Co., 82, Ball, Ex parte, 181, 182.
528. Ray, 355.
v.
v. Martin, 343. Ballacorkish Mining Co. v. Harri-
Allsop Allsop, 219.
v. son, 137.
Alton v. M. Rail. Co., 474, 494. Ballantine v. Golding, 187.
Amann v. Damm, 553. Ballard v. Tomlinson, 138, 427.
Ambergate v. M. Rail. Co., 334. Balme v. Hutton, 107, 306.
Ames v. Union Rail. Co., 475. Bamford v. Turnley, 353, 354, 566.
Anderson v. Radcliffe, 320. Bank of New South Wales v.
Anthony v. Haney, 332. Owston, 83.
Applebee v. Percy, 434. Barker v. Braham, 68.
Arlett v. Ellis, 362. Barnes v. Ward, 159, 449, 579.
Armory v. Delamirie, 316. Barnett v. Guildford, 320.
Armstrong v. L. & Y. Rail. Co., 573. Barry v. Croskey, 251.
Arnolds. Holbrook, 336. Barton v. Taylor, 108.
Ash v. Dawnay, 339. Barton's Hill Coal Co. v. Reid, 71.
Ashby v. White, 111, 167, 285. Bar wick v. English Joint Stock
Asher v. Whitlock, 316. Bank, 69, 85, 272, 273, 526.
Ashworth v. Stanwix, 93. Bastard v. Hancock, 503.
Atkinson v. Newcastle Waterworks Batchelor v. Fortescue, 455.
Co., 24, 176, 177. Baten's Case, 350, 364.
Attack v. Bramwell, 339. Bayley v. M. S. & L. R. Co., 80,
A. G. v. Cambridge Consumers' 81, 528.
Gas Co., 366. Beaumont v. Greathead, 166.
v. Colney Hatch Lunatic Becher v. G. E. Rail. Co., 473.
Asylum, 370. Beckett v. M. Rail. Co., 347, 564.
XXV111 INDEX OF CASES.

Beokham v. Drake, 494. Brooker v. Coffin, 220.

BeddaU v. Maitland, 328, 329. Broughton v. Jackson, 202.
Beddow v. Beddow, 174. Brown v. Boorman, 462.
Bellv. M. Rail. Co., 172. v. Eastern and Midlands

Benjamin v Storr, 348, 564.

. Rail. Co., 47.
Benton v. Pratt, 275, 483. v. Kendall, 122, 125, 128,
Bernina, The, 397, 404, 418, 572. 426, 535.
Berringer v. G. E. Kail. Co., 472. v. Notley, 343.
Berry v. Da Costa, 172, 493. Browne v. Dawsou, 331.
Bessey v. Olliott, 129. Brownlie v. Campbell, 248.
Betts v. Gibbins, 179, 530. Brunsden v. Humphrey, 173.
Bhugwan Meetha v. Kasheeram Brunswick, Duke of, v. King of
Govurdhun, 533. Hanover, 101.
Bhyran Pershad v. Isharee, 542. v. Harmer,
Biddle v. Bond, 311. 225.
Bird v. Holbrook, 149, 159. Bryant v. Herbert, 15, 500, 502,
v. Jones, 198. 504.
Biscoe v. G. E. Kail. Co., 116, 117, Lefever, 357.
v.
534. Bubb Yelverton, 303.
v.
Blades v. Higgs, 319, 332. Buckley v. Gross, 316.
Blad's Case (Blad v. Bamfield), Bullers v. Dickinson, 359.
183, 186. Buhner v. Buhner, 61.
Blair Bromley, 86.
v. Burdett v. Abbot, 333.
Blake v. Barnard, 193. Burger v. Carpenter, 483.
v. M.
Rail. Co., 62. Burgess v. Burgess, 143.
Blakemore v. Bristol and Exeter v. Gray, 74.
Kail. Co., 455. Burling v. Read, 361.
Blamires v. L. & T. Kail. Co., 178. Burnand v. Haggis, 50.
Blisset v. Daniel, 110. Burns v. Poulsom, 77.
Bloodworth v. Gray, 221. Buron v. Denman, 100.
Blyth v. Birmingham Waterworks Buiroughes v. Bayne, 300, 306.
Co., 36, 42, 376, 393. Burrowes v. Lock, 175, 260, 486.
Bolch v. Smith, 454, 581. Burrows v. Erie Rail. Co., 417.
Bolingbroke v. Swindon Local Bush v. Steinman, 73.
Board, 83. Butterfield v. Forrester, 403, 404,
Borrows v. Ellison, 189. 573.
Boson v. Sandford, 503. Byrne v. Boadle, 450, 570, 580.
Boston & Albany R. K. Co. v. Bywell Castle, The, 413, 574.
Shanly, 438.
Bourne v. Fosbrooke, 316.
Bowen v. Hall, 285, 475, 476, 489.
Bower v. Peate, 453. C.
Bowker v. Evans, 55.
Bowyer v. Cook, 331, 341. Cabell v. Vaughan, 503.
Box v. Jubb, 429. Calder v. Halket, 104.
Bradlaugh v. Gossett, 108. Caledonian Kail. Co. v. Walker's
Newdegate, 286.
v.
Trustees, 115.
Bradshaw v. L. & Y. Kail. Co., 60. Calliope, The, 446, 447.
Bridge v. Grand Junction Kail. Campbells. Spottiswoode, 230, 231.
Co., 403, 404, 413. Cape v. Scott, 334.
Bridges v. N. L. Kail. Co., 386, Capital and Counties Bank v.
391.
Henty, 227, 544, 548.
Briggs v Union Street Kail., 414.
.
Carey v. Ledbitter, 354.
Brinsmead v. Harrison, 178, 307. Carpue v. L. & B. Rail. Co., 384.
British Mutual Banking Co. v.
Carrington v. Taylor, 204.
Charnwood Forest K. Co., 84, 86. Carslake v. Mapledoram, 221.
Broadbent v. Ledward, 500. Carstairs v. Taylor, 429.
Broder v. Saillard, 353, 355, Carter v. Drysdale, 509.
Bromage v. Prosser, 224. Castle v. Duryee, 125, 126.
 INDEX OF CASES. XXIX

Central Ran. Co. of Venezuela v. Cory ton v. Lithebye, 502.

Kisch, 267. Cotterell v. Jones, 280.

Chamberlain v.Boyd, 219. Cotton v. Wood, 381, 382, 571.
v. Hazelwood, 207. Couch v. Steel, 177.
v. Wniiamson, 56, 493, Coulter v Express Co., 417.
.

494, 503. Courtenay v. Earle, 462.

Chapman v. Auckland Union, 365. Coward t;. Baddeley, 194, 541.
Rothwell, 444, 579.
r. Cox v. Burbidge, 40, 432, 525.
Charles v. Taylor, 91. v. G. W. Rail. Co., 506.
Chasemore v. Richards, 137, 141, Cox head v. Richards, 240, 553.
424, 536. Crabtree v. Robinson, 335.
Chatham Furnace Co. v Moffatt,
. Cracknell v. Corporation of Thet-
256. ford, 116.
Chicago M. & S. Ran. Co. v. Ross, Crafter v. Metrop. Rail. Co., 385,
95. 393.
Chifferiel v. Watson, 169. Cripps v. Judge, 505.
Child v. Hearn, 411, 434. Croft v. Alison, 77.
v. Sands, 503. Crossley v. Lightowler, 352, 568.
Chinery v. Viall, 312, 465. Crowhurst v. Amersham Burial
Christopherson v. Bare, 195. Board, 426, 427.
Chunder Narain Singh v. Brijo Crump v. Lambert, 351, 354.
Bullub Gooyee, 531. Cullen v. Thomson's Trustees and
City of London Brewery Co. v. Kerr, 66.
Tennant, 357, 358. Cundy v. Lindsay, 289, 490.
Clark v. Chambers, 39, 40, 43, 44, Cutts v. Spring, 316.
45, 409, 411, 524.
v.Molyneux, 241, 246.
v. Woods, 106.
Clarkson v. Musgrave, 509. D.
Clayardsv. Dethick, 415, 417, 574,
575. Dalston v. Janson, 462.
Cleather v. Twisden, 86. v. Angus, 321, 357.
Clements v. Flight, 500. v. S. E. Ran. Co., 63.
Cliff v. M. Rail. Co., 571. Dalyell v. Tyrer, 73, 471, 472.
Closson v. Staples, 279. Danby v. Lamb, 500.
Clough v. L. & N. W. Ran. Co., Dand v. Sexton, 298.
252. Daniel t. Met. Rail. Co., 414.
Clowes Staffordshire Potteries
v. Darley Main Colliery Co. v.
Waterworks Co., 369. Mitchell, 189, 523.
Cockle v. S. E. Ran. Co., 390. Davey v. L. & S. W. Rail. Co.,
Cole v. Turner, 191, 194, 541. 389.
Collector of Sea Customs v. Punniar Davies, Ex parte, 311.
Cluthambaram, 531. v. Mann, 402, 403, 405,
Collen v. Wright, 58, 470. 573.
Collins v. Evans, 179, 254. v Marshall, 147.
.

Collis v. Selden, 478. v. Snead, 240, 554.

Commissioners of Sewers v. Glasse, v. Solomon, 219.
362. v. Wniiams, 361.
Commonwealth v. Collberg, 145. Davis v. Duncan, 232.
v. Pierce, 379. v. Gardiner, 221.
Cook v. N.Met. Tramways Co., 510. v. Saunders, 131.
Cooke v. Forbes, 366. v. Shepstone, 233, 242.

Cooper v. Crabtree, 343. Dawkins v. Antrobus, 110, 533.

v. Willomatt, 308, 311. v. Lord Paulet, 237.
Corby v. Hill, 327, 449, 454, 579. v. Lord Rokeby, 105, 236.
Cornfoot v. Fowke, 270, 271. v. Prince Edward of Saxe-
Cornish v. Accident Insurance Weimar, 105, 236.
Co., 152. Day v. Brownrigg, 143, 276.
v. Stubbs, 324, 563. Dean v. Bennett, 110.
XXX INDEX OF CASES.

Dean v. Peel, 209. Elliott, Ex parte, 183.

v. St. Paul Union Depot Co., v.Hall, 446, 578.
447. Ellis v. G. W. Rail. Co., 390.
Dean of St. Asaph's Case, 127. v. Loftus Iron Co., 41, 432.
Deane v. Clayton, 156. v. Sheffield Gas Consumers'
Degg v. M. Rail. Co., 92. Co., 69.
Denison v. Ralphson, 501. Emblen v. Myers, 172, 582.
Denton v. Gr. N. Rail. Co., 261, mmens v. Pottle, 226.
263, 272, 468, 485. England v. Cowley, 307.
Deny v. Peek, 250, 251, 255, 259, Entick v. Carrington, 10, 100, 295.
260, 263, 264, 271, 554. European and Australian Royal
De "Wahl v. Braune, 49. Mail Co. <o. Royal Mail Steam
Dhurmchund v. Nabhaee Goobal- Packet Co., 311.
chund, 533. Evans Bicknell, 268.
v.

Dickenson v. N. E. Rail. Co., 61. v. 259.

Edmonds,
Dickeson v. Watson, 129. v. "Walton, 208.
Dickon v. Clifton, 462. Eyre, Ex parte, 87.
Dicks v. Brooks, 274, 275.
Dickson v. Dickson, 483.
v. Reuters' Telegram Co.,
484, 489. F.
Ditcham v. Bond, 207.
Dixon v. Bell, 127, 409, 437, 441, Fairhurst v. Liverpool Adelphi
577. Loan Ass., 50, 51.
Dobell v. Stevens, 266. Falvey v. Stanford, 165.
Dobree v. Napier, 186. Farrant v. Barnes, 438, 577.
Donald 0. Suckling, 311, 560. Farwell v. Boston & Worcester
Doss v. Secretary of State in Coun- Railroad Corporation, 70, 88, 90.
cil of India, 99. Fay v. Prentice, 349, 566.
Doughty v. Firbank, 506. Feltham v. England, 91.
Doulson v. Matthews, 185. Fenn Bittleston, 313.
v.

Doyley v. Roberts, 222. Fergusson v. Earl of Kinnoul, 522.

Drake, Ex parte, 307. Filer v. N. Y. Central R. R, Co.,
Dreyfus v. Peruvian Guano Co., 417.
169, 365. Filliter v.Phippard, 435.
Dublin, &c., Rail. Co. v. Slattery, Fine Art Society v. Union Bank of
389, 405, 414. London, 306.
Du Boulay v. Du
Boulay, 143. Finlay v. Chirney, 54.
Duckworth v. Johnson, 62. Firbank' s Executors v. Humphreys,
Dunn v. Birmingham Canal Co., 253, 261.
430. Firth v. Bowling Iron Co., 427.
Dunston v. Young, 107. Fishery. Keane, 110, 533.
Dyer v. Hargrave, 266. Fitz v. Hobson, 564.
Fitzjohn v. Mackinder, 200, 278.
Fivaz v. Nicholls, 161.
E.
Fleming Dollar, 234.
v.

Eager v. Grimwood, 209. Hislop, 352, 365.

v.
Ecclesiastical Commissioners v. v. M. S. & L. Rail. Co.,

Kino, 359. 466, 476, 489, 504.

Eckert v. Long Island Rail. Co., Fletcher, Ex parte, 331.
417. v. Bealey, 366.

Edgington v. Fitzmaurice, 251, v. Rylands, 421, 425.

253 259 v. Smith, 424.
Edwards v. L. & N. "W. Rail. Co., Flewsterv. Royle, 201.
82. Fogg v. Boston & Lowell Rail. Co.,
v.M. RaU. Co., 278. 53.
Edwick v. Hawkes, 328, 329. Forsdike v. Stone, 171.
Elias v. Snowdon Slate Quarries Fouldes v. Willoughby, 298, 307.
Co., 302. Foulger v. Newcomb, 223.
 INDEX OF CASES. XXXI

Foulkes v. Met. D. Rail. Co., 446, Grainger Hill, 198.

v.

447, 468, 472, 474, 476, 489, 578. Grand Trunk Rail, of Canada v.
Francis v. Cockrell, 442, 446, 580. Jennings, 63.
Franconia, The, 61. Gray v. Pullen, 67.
Franklin v. S. E. Eail. Co., 62, 63. G. W. Rail. Co. of Canada v. Braid,
Fray v. Blackburn, 104. 430.
Freke v. Calmady, 301. Greene v. Cole, 300.
Fremantle v. L. & N. W. Rail. Greenland v. Chaplin, 37.
Co., 430, 577. Greenslade v. Halliday, 363.
Fritz v. Hobson, 348, 356, 365, 494, Greenwood v. Hornsey, 359.
503. Gregory v. Duke of Brunswick,
Frogley v. Earl of Lovelace, 323. 281, 285.
v. Piper, 76, 527.
Griffin v. Coleman, 199, 200.
Griffiths v. Dudley, 506.
a. v. London & St. Katha-
Docks Co., 92.
rine
Gallagher v. Piper, 91. Grinham v. Willey, 201.
G-andy v. Jubber, 371, 569. Grinnell v. "Wells, 209, 210.
G-anesh Singh v Ram Raja, 529.
. Guille v. Swan, 34.
Garland v. Carlisle, 333. Gully v. Smith, 23.
Garnett v. Bradley, 166. Gwinnell v. Earner, 371, 372, 669.
Garret v. Taylor, 212.
Gas Light & Coke Co. v. Vestry of
St. Mary Abbott's, 118.
Gaunt v. Fynney, 366. H.
Gautret v. Egerton, 453.
Gaylard v. Morris, 298. Hadley Baxendale, 27, 492, 493.
v.
Geddis v. Proprietors of Bann Re- Hailes Marks, 202.
v.

servoir, 115, 116. Halford v. E. J. Rail. Co., 571.

Gee v. Met. Rail. Co., 153, 414, Hallv. Fearnley, 131.
415, 574. v, Hollander, 210.

Gehanaji bin Kes Patil v. Ganpati Halley, The, 75, 183, 184, 185, 186.
bin Lakshuman, 565. Halliday v. Holgate, 311.
George and Richard, The, 39, 61. Halsey v. Brotherhood, 274.
v. Skivington, 440, 477. Hambly v. Trott, 64, 65, 501, 502.
Gibbons v. Pepper, 131. Hamilton v. Pandorf, 429.
Gibbs v. Guild, 190. Hammack v. White, 25, 381, 382,
v. G. W. Rail. Co., 506. 570, 571.
Gibson v. Evans, 227. Hammersmith Rail. Co. v. Brand,
Girish Chunder Das v. Gillanders 115, 116, 436.
& Co., 526. Hardman v. Booth, 490.
Gladwell v. Steggall, 461, 464. v. Johnson, 86.
Glasier v. Rolls, 255. Harper v. Charlesworth, 316.
Glasspoole v. Young, 107, 332. v. Luffkin, 208.
Gledstane v. Hewitt, 500. Harris v. Brisco, 286.
Gloucester Grammar School Case, v. De Pinna, 357, 359.
135 Mobbs, 37, 348.
v.
Glover v. L. & S. W. Rail. Co., 35. Harrison v. Bush, 241.
Goff v. G. N. Rail. Co., 82. Harrop v. Hirst, 321, 348, 350, 356,
Goffin v. Donnelly, 236. 566.
Goldsmid v. Tunbridge "Wells Im- Hart v. Gumpach, 237.
provement Commissioners, 366. v. "Wall, 227.
Goodson v. Richardson, 342. Hartley v. Cummings, 207.
Goodwin v. Cheveley, 335, 433. Harvey v. Brydges, 330.
Gorham v. Gross, 425, 453. v. Dunlap, 125.
Gorrisv. Scott, 24, 44, 178. Harvey, 333.
v.
Gosden v. Elphick, 201. Haskin v. Royster, 483.
Graham v. Peat, 316. Hatchard v. Mege, 59.
XXX11 INDEX OF CASES.

I.
Haycraft y. Creasy, 252.
Hayes v. Michigan Central Rail-
road Co., 38. Ibbotson v. Peat, 284.
v. Goodwin. 524.
Hayn Culliford, 446, 447.
v. Illidge
Ilott v. Wilkes, 149.
Hayward v. Hayward, 243. Inchbald v. Barrington, 354.
Healdv. Carey, 308.
Heaven v. Pender, 374, 375, 440, Indermaur v. J)ames, 443, 448, 578.
Inderwick v. Snell, 110, 532.
445, 580.
Innes v. Wylie, 194.
Hedges v. Tagg, 209.
Helsham v. Blackwood, 235. Irwin v. Dearman, 210.
Hendriks v. 277.
Montagu, Ivay v. Hedges, 455.
Henwood v. Harrison, 230, 232.
Hepburn v. Lordan, 365.
Hermann Loog v. Bean, 174. J.
Heske v. Samuelson, 505.
Hetherington v. N. E. Rail. Co., Jackson v. Adams, 220.
63. Jacobs v, Seward, 314.
Hewitt v. Isham, 326. James v. Campbell, 130.
Hfflv. Bigge, 101. v. Jolly, 553.
v. New River Co., 37, 45, 525. Jeffries v. G. W.
Rail. Co., 316, 317.
Hillard v. Richardson, 73. Jenner v. A'Beckett, 233.
Hinde v. Bandry, 551. Jennings v. Rundall, 50, 465.
Hiort Bott, 287, 304, 305, 559.
v. JinaRanchhodv. JohhaGhella, 565.
t,.L. &N. W. RaH. Co., 307. Job Potton, 301, 315.
v.
Hogg v. Ward, 199. Joel Morison, 77.
v.
Hole v. Barlow, 354. John v. Bacon, 442.
Holford v. Bailey, 318, 321, 539. Johnson v. Emerson, 280.
Hollins v. Fowler, 10, 287, 289, 305, v. Lindsay, 74, 92.
306, 491, 561. v. Pie, 50, 53.
Holmes v. Mather,
25, 121, 130, v. Stear, 312.
132, 150, 152, 426. Johnstone v. Sutton, 107.
v. N. E. Rail. Co., 445.
Jones v. Bird, 379.
v. Wilson, 331. v. Blocker, 483.
Hollywood v. Honywood, 302. v. Boyce, 415, 417.
Hope v. Evered, 201. v. Chappell, 301, 348, 370.
v. G. N. R. Co., 321.
Hopkins v. Corporation of Liverpool,
Home v. M. Rail. Co., 492, 493.
73, 74.
Horsfall v. Thomas, 265. v.FestiniogRail. Co., 436, 577.
Hotchkys, Re, 301. v. Gooday, 175.
'Houldenv. Smith, 103. 308, 559.
v. Hough,
Houldsworth v. City of Glasgow v. Jones, 361.
Bank, 85, 272. v. Powell, 353.
Hounsell v. Smyth, 453, 581. v. Starly, 483.
Howard v.Shepherd, 478. Jordin v. 156.
Crump,
Howe v. Finch, 505.
Huber v. Steiner, 187.
Huckle v. Money, 170.
Hughes v. Macfie, 409. K.
v. Percival, 453.
Humphries v. Cousins, 425. Kane v. N. Central Rail. Co., 419.
Hurdman v. N. E. Rail. Co., 138, Karim Buksh v. Budha, 565.
425. Kashiram Krishna v. Bhadu
Hurst v. Taylor, 449. Bapuji, 547.
Hutchins v. Hutchins, 282. Kearneys. L. B. & S. C. RaU. Co.,
Hyams v. Webster, 67. 450, 580.
Hyde v. Graham, 323, 326. Keeble v. Hickeringill, 140, 213,
Hydraulic Engineering Co. v. 284, 285.
McHaffie, 492. Keen v. Millwall Dock Co., 507.
Hyman v. Nye, 448. Keighly v. Bell, 108.
 INDEX OF CASES. XXX111

Kelk v. Pearson, 357, 358, 365. Lumleyr. Gye, 58, 206, 207, 212,
Kellard v. Rooke, 510. 213, 285, 479, 480, 482, 483.
Kelly, v. Sherlock, 166, 232. Lyde v. Barnard, 269.
v. Tinling, 232. Lyell v. Ganga Dai, 124, 438, 577.
Kemp v. Neville, 104. Lynch Knight, 218, 219, 481.
v.
v. Nurdin, 39, 524.
Kenyon v. Hart, 296.
Kettle v. Bromsall, 500. Lyonv. Fishmongers' Co., 348, 564.
Kiddle v. Lovett, 507.
King v. London Improved Cab Co.,
75. M.
Kirk v. Gregory, 287.
v. Todd, 66. Macdougall v. Knight, 243.
Macfadzen v. Olivant, 206.
L. Mackay v. Commercial Bank of
New Brunswick, 85, 272.
Labouchere v. Wharncliffe, 110, Maddison v. Alderson, 87.
533. Madras Rail. Co. v. Zemindar of
Lambert Bessey, 129.
v. Carvatenagaram, 429, 575, 577.
Lancashire Waggon Co. v. Fitz- Malachy v. Soper, 274.
hugh, 308. Manchester Bonded Warehouse Co.
Lanfranchi v. Mackenzie, 358. v. Carr, 301.
Langridge v. Levy, 262, 441, 477, South Junction Rail.
557. Co. v. Fullarton, 47.
Laughton v. Bishop of Sodor and Manganv. Atterton, 410, 524.
Man, 241, 246. Manley v. Field, 208.
Lax v. Corporation of Darlington, Manzoni v. Douglas, 382.
153, 417, 446, 447, 574. Marsh v. Billings, 275.
Lea v. Charrington, 201. v. Keating, 180, 183.
Leame v. Bray, 130. Marshall v. York, Newcastle &
Le Mason v. Dixon, 503. Berwick Rail. Co., 469, 473, 475.
Lee v. Riley, 40, 41, 525. Marshalsea, The, 106.
Leeson v. General Medical Council, Martin v. G. I. P. R. Co., 473, 474.
109. v. Payne, 209.

Leggott v. G. N. Rail. Co., 60. Marzetti v. Williams, 465.

Lempriere v. Lange, 51. Masper v. Brown, 197.
Lewis v. Levy, 243. Maund v. Monmouthshire Canal
Leyman v. Latimer, 221, 235. Co., 53.
Liggins v. Inge, 325. May v. Burdett, 433.
Limpus v. London General Omni- Mayor of Colchester v. Brooke, 403.
bus Co., 83. M'Cully v. Clark, 385, 570.
Lingwood v. Stowmarket Co., 365. M'Kenzie v. McLeod, 528.
Lister v. Ferryman, 202, 203. M'Manus v. Crickett, 84.
Little v. Hackett, 73, 397, 404, 406. McGiffen v. Palmer's Shipbuilding
Lock v. Ashton, 201. Co., 505.
L. & B. Rail. Co. v. Truman, 118, McLaughlin v. Pryor, 74.
119, 534. McMahon Field, 492.
v.

London, Mayor of, v. Cox, 106. McPherson v. Daniels, 224, 229.

L. &N. W.
Rail. Co. v. Bradley, 116. Meade's and Belt's Case, 195.
Longmeid v. Holliday, 441, 477. Mears v. Dole, 425.
Lonsdale, Earl of, v. Nelson, 349, v. L. & S. W. Rail. Co., 304.

361, 363, 566. Meghraj v. Zakir Hussain, 530.

Lord v. Price, 304. Mellor v. Spateman, 356.
Losee v. Buchanan, 425, 436. v. Watkins, 324.
v. Clute, 448. Membery v. G. W. R. Co., 150, 151.
Lovell v. Howell, 89. Mennie v. Blake, 299, 319, 563.
Lowe v. Fox, 51. Merest v. Harvey, 171.
Lows Telford, 328, 329.
v. Merivale v. Carson, 230, 231, 233,
Lowther v. Earl of Radnor, 104. 550.
Luby v. Wodehouse, 101. Merryweather v. Nixon, 179.
P.
XXXIV INDEX OF CASES.

Mersey Docks Trustees v. Gibbs, National Plate Glass Insurance Co.

54, 86, 115, 522. v. Prudential Assurance Co., 359.

Metropolitan Association v. Fetch, Neate v. Denman, 109.

371. Nelson v. Liverpool Brewery Co.,
Metropolitan Asylum District v. 372, 569.
Hill, 117, 118. Newson v. Pender, 359.
Metropolitan Bank v. Pooley, 280, Newton v. Harland, 330.
286. Nichols v. Marsland, 121, 428, 575.
Metrop. Bail. Co. v. Jackson, 41, NilmadhabMookerjee v.Dookeeram
385, 386. Khottah, 547.
v. Wright, 165. Nitro- Glycerine Case, 123, 132,
Midland Ins. Co. v. Smith, 182. 426, 577.
Millen v. Fawdry, 433. Norris v. Baker, 361.
Miller v. David, 222. North Eastern Rail. Co. v. "Wanless,
Mills, Case of, 135. 386, 388, 414.
v.
Armstrong-, 397, 406, 409, Northampton's, Earl of, Case, 229.
418, 572, 573. Nugent v. Smith, 427, 466.
v. Graham, 500. Nuttall v. Bracewell, 327.
Millward v. M. Kail. Co., 506. Netting Hill, The, 492.
Mitchell v. Crassweller, 77, 78.
v. Darley Main Colliery Co.,
167.
Moffatt v. Bateman, 446, 455, 469, O.
581.
Mogul Steamship Co. v. McGregor,
Low & Co., 136, 141, 175. Oakey v. Dalton, 59.
Moorcock, The, 446, 447. Ormerod v. Todmorden Mill Co.,
Moore v. Metrop. Rail. Co., 82. 327.
v. Rawson, 357, 359. Osborn v. GiUett, 57, 58, 205.
v. Robinson, 292. Osborne v. Jackson, 506, 510.
Morgan v. Lond. Gen. Omnibus Co., Oxley v. Watts, 339.
510.
v.ValeofNeathRail.Co., 90.
Morris v. Platt, 125.
Moses v. Macferlan, 470.
P.
Mostyn v. Fabrigas, 101, 185.
Mott v. Shoolbred, 370, 568.
Mouse's Case, 154. Paley v. Garnett, 505.
M. Moxham, The, 183, 185. Palmer v. Thorpe, 221.
Moyle v. Jenkins, 507. Pappa v. Rose, 105.
Muhammad Ismail Khan v. Mu- Parankusam Narasaya Pantula v.
hammad Tahir, 547. Stuart, 542.
Muhammad Yusuf v. P. & 0. Co., Pardo v. Bingham, 188.
529 Parker v. First Avenue Hotel Co..
Mullen v. St. John, 452. 359.
Mulligan Cole, 227.
v. Parkes v. Prescott, 226.
Mulliner v. Florence, 312. Parkins v. Scott, 218, 229.
Mumford v. Oxford, 370. Parlement Beige, The, 102.
Munday v. Thames Ironworks Co., Parnell v. Walter, 246.
508. Parry v. Smith, 439.
Munster v. Lamb, 236, 551. Parvals v. Mannar, 544.
Murphy v. Deane, 383. Pasley v. Freeman, 252, 260.
Murray v. Currie, 72, 74. Patrick v. Colerick, 332, 563.
v. Hall, 315. Paul v. Summerhayes, 338.
Pease v. Gloahec, 489.
Peek v. Derry, 176, 255. ^*~*
N. v. Gurney, 66, 175,
251, 264,
556.
Nash v. Lucas, 335. Pendlebury v. Greenhalgh, 73.
 INDEX OF CASES. XXXV

Pennington v. Brinsop Hall Coal E.

Co., 369.
Penruddock's Case, 349, 364, 372, Eadley v. L. & N. W. Eail. Co.,
566. 397, 398, 404, 405.
Perry v. Fitzhowe, 361, 362. Eaffey v. Henderson, 326.
Perry man v. Lister, 203. E. Eagunada Eau v. Nathamuni
Phillips v. Barnet, 52. Thathamayyangar, 531.
v. Eyre, 101, 184, 185, 186, Eaj Chunder Eoy v. Shama Soon-
187, 188. dari Debi, 280, 558.
v. Homfray, 65, 502. Eaj Koomar Singh v. Sahebzada
v. L. & S. W. Eail. Co., Eoy, 569.
165, 170. Eajmohun Bose v. E. I. Eail. Co.,
Pickard v. Smith, 442. 118, 534.
Pickering v. James, 111. Eamsden v. Dyson, 326.
v. 296.
Eudd, Eandall v. Newson, 448.
Piggott v. E. C. Eail. Co., 430. Eani Shamshoondri Deba v. Dubhu
Pilcher v. Eawlins, 289. Mundul, 526.
Pilgrim v. Southampton, &c. Co., Eashdall v. Ford, 254.
343. Eaymondv. Fitch, 494.
Pinchon's Case, 59, 502. Eayner v. Mitchell, 79.
Pippin v. Sheppard, 461. Eea v. She ward, 335.
Pitumber Doss v. Dwarka, 547. Eead v. Coker, 193.
Playford v. U. K. Electric Tele- Edwards, 433.
v.

graph Co., 485. v. G. E. Eail. Co., 64.

Plimmer v. Mayor of "Wellington, Eeadhead v. Midland Eail. Co., 448.
326. Eedgrave v. Hurd, 258, 266, 557.
Polhill v. Walter, 251, 263, 554, 556. Eeece v. Taylor, 196.
Ponnusamy Tevar v. Collector of Eeese Eiver Silver Mining Co. v.
Madura, 523. Smith, 259.
Pontifex v. Bignold, 168. Eeg. v. Burdett, 547.
v. M. Eail. Co., 504. v. Commissioners of Sewers
Potter v. Brown, 187. for Essex, 425, 428.
v. Faulkner, 92, 126, 127. v. Coney, 145, 146.
Potts v. Smith, 358. v. Cotesworth, 192.
Poulton v. L. & S. W.
Eail. Co., 82. v. James, 193.
Powell v. Deveney, 40. v. Judge of City of London
v. Fall, 436. Court, 508.
Powys v. Blagrave, 301. v. Latimer, 29, 130.
Pozzi v. Shipton, 464, 466. v. Lesley, 186.
Praed v. G-rahain, 246. v. Lewis, 145.
Pralhad Maharudra v. A. C. Watt, v. Orton, 147.
530. v. Eiley, 332.
Presland v. Bingham, 360. v. Sankara, 554.
Pretty v. Bickmore, 371, 372, 569. v. Smith, 29.
Priestley v. Fowler, 87. v. St. George, 193, 541.
Proctor v. Webster, 241. v. Train, 345.
Pulling v. G. E. Eail. Co., 60. v. Williams, 54.
PurceU v. Sowler, 229, 232, 550. Eeinhardt v Mentasti, 353.
.

Pursell v. Home, 192. Eex Pease, 116, 118.

v.

Pym v. G. N. Eail. Co., 62, 63. Eeynell v. Sprye, 258.

Eeynolds v. Edwards, 341.
Eice v. Manley, 275, 483.
v. Shute, 503.
Q. Eich v. Basterfield, 372, 569.
v. Pilkington, 503.
Quarman v. Burnett, 73, 442. Eicket v. Met. Eail. Co., 347, 348,
Quartz Hill, &c. Co. v. Beall, 174. 564.
v. Eyre, 279. Eiding v. Smith, 218, 223.
Eist v. Faux, 209.
c2
XXXVI INDEX OF CASES.

Robert Marys' Case, 205. Secretary of State in Council of

Roberts v. Roberts, 219. India v, Kamachee Boye Sahaba,
v. Rose, 364. 99.
v. 318.
Wyatt, Selby v. Nettleford, 338.
Robinson v. Cone, 411. Semayne's Case, 333.
v. Kilvert, 354. Seroka v. Kattenburg, 52.
Robson v. N. E. Rail. Co., 153, Seshaiyangar v. R. Ragunatha
391, 416, 574. Row, 531.
Rogers v. Rajendro Dutt, 139, 140, Seton v. Lafone, 33, 314.
141,536. Seward v. The Vera Cruz, 61.
v. Spence, 171, 317. Seymours. Greenwood, 81, 83.
Romney Marsh, Bailiffs of, v. Shaffers v. Gen. Steam Navigation
Trinity House, 39. Co., 510.
Roope v. D'Avigdor, 182. Shama Churn Bose v. Bhola Nath
Rose v. Miles, 347, 564. Dutt, 526.
v. N. E. Rail. Co., 417. Sharp v. Powell, 42, 43, 44, 45, 525.
Rosenberg v. Cook, 316. Shaw v. Port Philip Gold Mining
Rosewell v. Prior, 372, 569. Co., 85.
Ross v. Rugge-Price, 176. Shepheard v. Whitaker, 223.
Rourke v. White Moss Colliery Co., Sheridan v. New Quay Co., 311,
74. 561.
Rust v. Victoria Graving Dock Sherrington's Case, 502.
Co., 169. Shipley v. Fifty Associates, 425.
Ryder v. Wombwell, 387. Shotts Iron Co. v. Inglis, 354.
Rylands v.
Fletcher, 11, 18, 130, Simkin v. L. &N. W. Rail. Co., 47.
131, 150, 421, 422, 423, 424, 425, Simpson v. Savage, 370.
426, 427, 430, 431, 436, 437, 442, Siner N. E. Rail. Co., 390.
v.
575. Singer Manufacturing Co. v. Loog,
277.
v. "Wilson,
276.
S.
Singleton v. E. C. Rail. Co., 410.
Six Carpenters' Case, The, 339.
Sadler v. Henlock, 72. Skeltonv. L. & N. W. Rail. Co.,
v. S. Staffordshire Tram- 394.
ways Co., 436. Skinner v. L. B. & S. C. Rail. Co.,
St. Helen's Smelting Co. v. Tip- 384.
ping, 351, 352, 367, 566, 567. Skipp v. E. C. Rail. Co ,
92.
St. Pancras, Vestry of v. Batter- Slade'sCase, 461.
bury, 177. Slim v. Croucher, 175, 260.
Salvin v. North Brancepeth Coal Smith v. Boston Gas Co., 438.
Co., 351, 353, 369, 566. v. Brown, 61.
Sanders v. Stuart, 489. t>.
Chadwick, 251, 259, 264,
Sandfordv. Clarke, 371. 267.
Saner v. Bilton, 301. v. Cook, 432.
Satku Valad Kadir Sausare v. v. Earl Brownlow, 361.
Ibrahim Aga Valad Mirz& Aga, v. Green, 32, 493.
565. v. L. & S. W. Rail. Co., 376,
Savile or Savill v. Roberts, 280. 391, 430, 571.
Saxby v. Manchester and Sheffield v. London and St. Katharine
Rail. Co., 372. Docks
Co., 445, 580.
Scott v. London Docks Co., 384, v. Milles, 294.

451, 571. v. Sydney, 201.

v. Pape, 359. Sneesby v. L. & Y. Rail. Co., 32.
v. Seymour, 184. Soltau v. De Held, 354, 566.
v. Shepherd, 30, 44, 129, 158, Somerville v. Hawkins, 241, 553.
524, 540. Southcote v. Stanley, 455, 580.
Stansfield, 103, 104, 236.
v. Speight v. Oliviera, 208.
Seaman v. Netherclift, 236, 551. Spill r. Maule, 241, 246.
 INDEX OF CASES. XXXV11

Staight v. Burn, 360. Tipping v. St. Helen's Smelting

Steele v. Brannan, 244. Co., 352.
Stephens v. Elwall, 306, 310. Tod-Heatly v. Benham, 351.
v. Myers, 193. Todd Flight, 371, 569.
v.
Stetson v. Faxon, 347, 564. Tollit v. Sherstone, 478.
Stevens v. Jeacocke, 177. Tompson v. Dashwood, 226, 245.
- v. Tozer v. Child, 111, 286.
Sampson, 231, 244, 551.
Stevenson v. Watson, 105. Traill v. Baring, 258.
Steward v. Young 274. 1

,
Tuberville v. Savage, 194.
Stewart v. Wyoming Ranch e Co., v. Stamp, 435.
254. Tucker v. Linger, 303.
Stikeman v. Dawson, 50. Tuff v. Warman, 397, 402, 572.
Stone v. Denny, 256. Tullidge v. Wade, 171, 207.
v. Hyde, 509. Tunney v. M. Rail. Co., 89, 529.
Storey v. Ashton, 78, 528. Turberville v. Stainpe, 71, 577.
Street v. Union Bank, 143. Turner v. Ringwood Highway
Sturgesv. Bridgman, 351, 352, 567. Board, 346, 350.
Sullivan v. Spencer, 101. v. S. P. & D. Rail. Co., 529.
v. Waters, 442, 453. Twomley v. Central Park R. R.
Sutton v. Town of Wauwatosa, 161. Co., 417.
Swann v. Phillips, 269. Twycross v. Grant, 56, 59.
Sweeny v. Old Colony and New- Tyrringham's Case, 335.
port R. R. Co., 450.
Swift v. Jewsbury, 269.
Swinfen v. Bacon, 341.
U.
Swire v. Francis, 272.
Udell v. Atherton, 250.
Underwood v. Hewson, 129.
Usill v. Hales, 243.
T.

Westmoreland, 101. V.
Tandy v.

Tapling v. Jones, 359, 360.

Tarini Charan Bose v.
Vallance v. Falle, 177.
Debnrayan
Vandenburgh v. Truax, 33, 524.
Mistri, 561.
Tarleton v. McGawley, 213, 284. Vaspor v. Edwards, 335, 341.
Tarry v. Ashton, 452, 580. Vaughan v. Menlove, 377, 378.
Tattan v. G. W. Rail. Co., 464. v. Taff Vale Rail. Co.,
116, 430, 436, 577.
Taylor v. Ashton, 255, 259.
v. Greenhalgh, 73.
Vernon v. Keys, 253.

156. Vicars v. Wilcocks, 44, 217, 218,

v. Newman,
481.
Terry Hutchinson, 209, 210.
v.
Tharsis Sulphur Co. v. Loftus, 105. Victorian Ry. Commissioners v.

Thomas v. Quartermaine, 92, 150, Coultas, 46.

151, 152, 448, 505, 506, Vinayab Disakar v. Bai Itcha, 531.
507. Vithoba Malhari v. Corfield, 531.
v. Sorrell, 323.

V.Winchester, 439, 440,441,

477, 578. W.
Thompson Gibson, 371.
v.
v. Ross, 209. Waite v. N. E. Rail. Co., 409, 573.
Thorley's Cattle Food Co. v. Mas- Wakelin v. L. & S. W. Rail. Co.,
sam, 174, 275. 380, 382, 389, 404, 571.
Thorogood v. Bryan, 406, 412. Wakeman v. Robinson, 131.
Thorpe v. Brumfitt, 357. Walker v. Brewster, 355.
Thrussell v. Handyside, 152, 153. v. Cronin, 483.
Tillett v. Ward, 433, 525. v. Needham, 500.

Timothy v. Simpson, 200. Wallis v. Harrison, 323.

XXXV111 INDEX OF CASES.

Walsh v. Whiteley, 505. Wilbraham v. Snow, 304.

Walter*?. Selfe, 351, 566. Wilkes v. Hungerford Market Co.,

Wandsworth Board of Works v. 347, 564.
United Telephone Co., 296. Wilkins v. Day, 348.
Wanless v. N. E. Rail. Co., 571, Wilkinson v, Haygarth, 315.
574. Williams v. East India Co., 577.
Ward v. Hohhs, 24. ,. G-. W. Rail. Co., 38,
Lloyd, 182.
v. 39, 386.
Warlow v. Harrison, 257. v. Jones, 79.
Warner v. Eiddiford, 198. v. Smith, 243.
Wason v. Walter, 231, 242, 551. Williamson v. Allison, 252j 257,
Watkin v. Hall, 229, 549. 462.
Weaver v. Ward, 128, 129. v. Freer, 225, 245, 554.
Webh v. Beavan, 220. Willis Maclachlan, 103.
v.
v. Bird, 357. Wilson v. Barber, 319.
Weblin v. Ballard, 505, 507. v. McLaughlin, 307.
Weems v. Mathieson, 92. v. Merry, 89, 91.
Weir v. Bell, 250. v. Newberry, 426, 429.
Weldon v. De Bathe, 52. v. Tumman, 69.
v. Neal, 190. Waddell, 425.
v.
v. Winslow, 51. Winsmore v. Greenbank, 207.
Welfare v. L. & B. Bail. Co., 452. Winter v. Brockwell, 325.
Wellock v. Constantine, 182. Winterbottom v. Derby, 347, 565.
Wells v. Abrahams, 182. v. Wright, 448, '477.
Wenman v. Ash, 226. Wood v. Leadbitter, 323, 324, 325,
Wennhak v. Morgan, 172, 226. 326.
West v. Nibbs, 334, 340. Waud, 352.
v.

Smallwood, 201.
v. Woad, 110, 568.
v.
Western Bank of Scotland v. Addie, Woodhouse v. Walker, 60, 300, 301.
255, 272. Woodley v. Metr. Dist. Rail. Co.,
West London Commercial Bank v. 150.
Kitson, 253. Woodward v. Walton, 207.
Whalley v. L. & T. Rail. Co., 159. Worth v. Gilling, 434.
Whatman v. Pearson, 78. Wren v. Weild, 274.
Wheeler v. Mason Manufacturing Wright v Leonard, 53.
.

Co., 95. v. Pearson, 434.

Whitaker v. Forbes, 184. v. Ramscot, 298.
White v.Bickmore, 372.
v. France, 445.
v. Jameson, 569.
v. Lang, 161.
v. Spettigue, 180. Y.
Whitham v. Kershaw, 169, 172,
176, 582. Yarborough v. Bank of England,
Whittaker, parte, 252.Ex 63.
Wiggett v. Fox, 92. Yarmouth v. France, 150, 151, 152,
Wigsell v. School for Indigent 448, 505, 507, 510.
Blind, 176. Yates v. Jack, 358.
 YEAR BOOKS CITED.

PAGE

--
22

48
Ass.

Edw.
.

III.
100, pi. 67
102,
20,
....................................
76 .... ............. e ..................
8 .................................... 318
53
212

--
2

___
11
Hen. IV. 18,
1-2,
-
-
5
2
................................ 435,464
.................................... 211

--- 47,
75,
21 ................................ 135, 535
16 ............... ..................... 339

__
19
-
----
Hen.
:
VI. 33,
45,
68 .................................... 433
94 ................................ 205,318

--
--
66, 10 .................................... 56

__
21 26, 9 ............ . ....................... 212
22 14, 23 .................................... 135
31 .................................... 211

--
--
33 27, 12 .................................... 300
212

37
39 --- - 37,
7,
26 .................................... 337
12 .................................... 324
6
___
-- -
Edw. IV. 7,
8
18 .................................... 128
.................................... 337
8
9 __
__
23,
35,
41 .................................... 154
10 ......... ...................... 332,337
.

9 .................................... 319
12
14 ---
____
13,
7, 13 ......................... .......... 212
.

32
17
20 ---
___
1

11, 10
....................................
.................................... 433
9 .................................... 328
21 765,
7
9 --
Hen. VII.

---
22, 3 .................................... 310
4 .................................... 212

--
7,

15 10, 18 ............................... ..... 362

16
21 __ -
___
2,

27,
7 .................................... 319
............................ 128,154,337
5

27
___
--
28
39,
.................................... 127
50 .................................... 155
49 .................................... 319

__
39,
12 Hen. VIII. 2 .................................... 154
27 27, 10 ............................ 346,348,564
 THE LAW OF TORTS.

CHAPTER I.

THE NATURE OF TORT IN GENERAL.

OUR first difficulty in dealing with the law of torts is to What is a

fix the contents and boundaries of the subject. If we
are asked, What are torts ? nothing seems easier than to
answer by giving examples. Assault, libel, and deceit are
torts. Trespass to land and wrongful dealing with goods
"
by trespass, conversion," or otherwise, are torts. The
creation of a nuisance to the special prejudice of any

person is a tort. Causing harm by negligence is a tort.

So is, in certain cases, the mere failure to prevent acci-
dental harm arising from a state of things which one has
brought about for one's own purposes. Default or mis-
carriage in certain occupations of a public nature is like-

wise a tort, although the same facts may constitute a

breach of contract, and may, at the option of the aggrieved

party, be treated as such. But we shall have no such

easy task if we are required to answer the question, What
is a tort ? in other words, what principle or element is
common to all the classes of cases we have enumerated, or

might enumerate, and also distinguishes them as a whole

from other classes of facts giving rise to legal duties and
liabilities ? It from a simple matter to define a
is far
contract. But we have this much to start from, that there
p. ){
6 THE NATURE OF TOUT IN GENERAL.

are two parties, of whom

one agrees to terms offered by
the other. There are variant and abnormal forms to be
dealt with, but this is the normal one. In the law of torts

we have no such starting-point, nothing (as it appears at

first but a heap of miscellaneous instances. The
sight)
word itself will plainly not help us. Tort is nothing but
the French equivalent of our English word ivrong, and was

freely used by Spenser as a poetical synonym for it. In

common speech everything is a wrong, or wrongful, which
is thought to do violence to any right. Manslaying, false
witness, breach of covenant, are wrongs in this sense.
But thus we should include all breaches of all duties, and
therefore should not even be on the road to any distinction

that could serve as the base of a legal classification.

History In the history of our law, and in its existing authorities,

of English
we ma7 & n & some little help, but, considering the magni-
classifica-
^U(j e o f ^e subj e ct, singularly little. The ancient common
law knew nothing of large classifications. There were
forms of action with their appropriate writs and process,
and authorities and traditions whence it was known, or in
theory was capable of being known, whether any given
set of facts would fit into any and which of these forms.
No doubt the forms of action fell, in a manner, into

natural classes or groups. But no attempt was made to

discover or apply any general principle of arrangement.
In modern times, that is to say, since the Restoration, we
find a certain rough classification tending to prevail (a).
is assumed, rather than distinctly asserted or established,

that actions maintainable in a court of common law must

be either actions of contract or actions of tort. This divi-
sion is exclusive of the real actions for the recovery of

() Appendix A.
 LIMITS OF TERMINOLOGY.

land, already becoming obsolete in the seventeenth century,

and finally abolished by the Common Law Procedure
Act, with which we need not concern ourselves : in the
old technical terms, it is, or was, a division of personal
actions only. Thus torts are distinguished from one im-
portant class of causes of action. Upon the other hand,

they are distinguished in the modern law from criminal

offences. In the medieval period the procedure whereby
redress was obtained for many of the injuries now classi-
fied as torts boreplain traces of a criminal or quasi-
criminal character, the defendant against whom judgment

passed being liable not only to compensate the plaintiff,

but to pay a fine to the king. Public and private law
were, in truth, but imperfectly distinguished. In the
modern law, however, it is settled that a tort, as such, is

not a criminal offence. There are various acts which may

give rise both to a civil action of tort and to a criminal

prosecution, or to the one or the other, at the injured

party's option ;
but the civil suit and the criminal prose-
cution belong to different jurisdictions, and are guided by
different rules of procedure. Torts belong to the subject-
matter of Common Pleas as distinguished from Pleas of
the Crown. Again, the term and its usage are derived
wholly from the Superior Courts of Westminster as they
existed before the Judicature Acts. Therefore the law
of torts is necessarily confined by the limits within which
those Courts exercised their jurisdiction. Divers and

weighty affairs of mankind have been dealt with by other

Courts in their own fashion of procedure and with their
own terminology. These lie wholly outside the common
law forms of action and all classifications founded upon
them. According to the common understanding of words,
breach of trust is a wrong, adultery is a wrong, refusal to

pay just compensation for saving a vessel in distress is a

B2
4 THE NATURE OF TORT IN GENERAL.

wrong. An order may be made compelling restitution

from the defaulting trustee a decree of judicial separation
;

may be pronounced against the unfaithful wife or husband ;

and payment of reasonable salvagemay be enforced against

the ship-owner. But that which is remedied in each case
is not a tort. The administration of trusts belongs to the
law formerly peculiar to the Chancellor's Court ;
the settle-
ment of matrimonial causes between husband and wife to

the law formerly peculiar to the King's Ecclesiastical

Courts and the adjustment of salvage claims to the law
;

formerly peculiar to the Admiral's Court. These things

being unknown to the old common law, there can be no
question of tort in the technical sense.

Exclusive Taking into account the fact that in this country the

separation of courts and of forms of action has disap-

peared, though marks of the separate origin and history

of every branch of jurisdiction remain, we may now say
this much. A
an act or omission giving rise, in
tort is

virtue of the common law jurisdiction of the Cogrt _to a a

civil remedy which is not_an_action_ofj3ontract. To that

extent we know what a tort is not. We are secured
against a certain number of obvious errors. "We shall not
imagine (for example) that the Married Women's Property
Act of 1882, by providing that husbands and wives can-
not sue one another for a tort, has thrown doubt on the

possibility of a judicial separation. But whether any

definition can be given of a tort beyond the restrictive

and negative one that a cause of action (that is, of a

it is

"personal" action as above noted) which can be sued on

in a court of common law without alleging a real or sup-

posed contract, and what, if any, are the common positive

characters of the causes of action that can be so sued

upon :-i these are matters on which our books, ransack

 HISTORICAL DISTINCTIONS.

them as we will, refuse to utter any certain sound what-

ever. If the collection of rules which we call the law of
torts is founded on any general principles of duty and
liability, those principles have nowhere been stated with

authority. yet more remarkable, the want

And, what is

of authoritative principles appears to have been felt as a

want by hardly any one (b).

We have no right, perhaps, to assume that by fair Are any

^GnGr&l
means we shall discover any general principles at all. The principles

history of English usage holds out, in itself, no great

encouragement. In the earlier period we find a current
distinction between wrongs accompanied with violence and

wrongs which are not violent a distinction important for

;

a state of society where open violence is common, but of

little use for the arrangement of modern law, though it is
still prominent in Blackstone's exposition (c) Later we .

find a more consciously and carefully made distinction be-

tween' contracts and causes of action which are not con-
tracts. This is very significant in so far as it marks the
ever gaining importance of contract in men's affairs.

That which is of contract has come to fill so vast a bulk in

the whole frame of modern law that it may, with a fair

appearance of equality, be set over against everything

which independent of contract. But this unanalysed
is

remainder is no more accounted for by the dichotomy of

the Common Law Procedure Act than it was before. It

may have elements of coherence within itself, or it may

not. If it has, the law of
body of law capable
torts is a

of being expressed in a systematic form and under appro-

priate general principles, whether any particular attempt

(b} The first, or almost the first, See the chapter on Liability in his
writer who has clearly called at- "Elements of Law."
tention to it is Sir William Markby. (c) Comm. iii. 118.
6 THE NATURE OF TORT IN GENERAL.

so to express it be successful or not. If not, then there is

no such thing as the law of torts in the sense in which

there is a law of contracts, or of real property, or of trusts,
and when we make use of the name we mean nothing but
a collection of miscellaneous topics which, through his-
torical accidents, have never been brought into any real

classification.

The The only way to satisfy ourselves on this matter is to

O*OTlpYQ OT
torts in examine what are the leading heads of the English law of
ll

law! torts as commonly received. If these point to any sort of

common principle, and seem to furnish acceptable lines of

construction, we may proceed in the directions indicated ;

well knowing, indeed, that excrescences, defects, and ano-

malies will occur, but having some guide for our judgment
of what is normal and what is exceptional. Now the civil
wrongs for which remedies are provided by the common
law of England, or by statutes creating new rights of
action under the same jurisdiction, are capable of a three-
fold division according to their scope and effects. There
are wrongs affecting a man in the safety and freedom of
his own person, in honour and reputation (which, as men

esteem of things near and dear to them, come next after

the person, if after it at all), or in his estate, condition,

and convenience of life generally : the word estate being

here understood in its widest sense, as when we speak of
" afflicted or distressed in
those who are mind, body, or
estate." There are other wrongs which affect specific pro-

perty, or specific rights in the nature of property :

property,
again, being taken in so large a sense as to cover possessory
rights of every kind. There are yet others which may
affect, as the case happens, person or property, either or
both. We may exhibit this division by arranging the
familiar and typical species of torts in groups, omitting
 CLASSIFICATION OF TORTS. 7
*.

for the present such as are obscure or of little practical

moment.

GROUP A.
Personal Wrongs. Personal
wrongs.
1. Wrongs affecting safety and freedom of the person :

Assault, battery, false imprisonment.

2. Wrongs affecting personal relations in the
family :

Seduction, enticing away of servants.

3. Wrongs affecting reputation :

Slander and libel.

4. Wrongs affecting estate generally :

Deceit, slander of title.

Malicious prosecution, conspiracy.

GrROUP B.

to Wrongs to
Wrongs Property.
property.
1. Trespass: (a) to land.

(b) to goods.
Conversion and unnamed wrongs ejusdem generis.
Disturbance of easements, &c.
2. Interference with rights analogous to property, such
as private franchises, patents, copyrights.

GTROUP C.

Wrongs to Person, Estate, and Property generally. Wrongs 1

affecting
1. Nuisance. person and
property.
2. Negligence.
3. Breach of absolute duties specially attached to the
occupation of fixed property, to the ownership and,
custody of dangerous things, and to the exercise
of certain public callings. This kind of liability
8 THE NATURE OF TORT IN GENERAL.

be seen hereafter, partly from ancient

results, as will
rules of the common law of which the origin is still

doubtful, partly from the modern development of

the law of negligence.

All the acts and omissions here specified are undoubtedly

torts, or wrongs in the technical sense of English law.

They are the subject of legal redress, and under our old
judicial system theprimary means of redress would be an
action brought in a common law court, and governed by
the rules of common law pleading (c).
We put aside for the moment the various grounds of
justification or excuse which may be present, and if present
must be allowed for. It will be seen by the student of

Roman law that ourincludes approximately the same

list

matters (d) as in the Roman system are dealt with (though

much less fully than in our own) under the title of obliga-
tions ex delicto and quasi ex delicto. To pursue the com-

parison at this stage, however, would only be to add the

difficulties of the Roman classification, which are consider-

able, to those already on our hands.

Character The groups above shown have been formed simply with
ful acts, reference to the effects of the wrongful act or omission.
n T

the several
-^ u^ ^
ev aPP ear on further examination, to have certain
>

classes. distinctive characters with reference to the nature of the

act or omission itself. In Group A., generally speaking,
wrongs.

(c) In some cases the really ef- (d) Trespass to land may or may
fectual remedies were administered not be an exception, according to
by the Courtof Chancery, but only the view we take of the nature of
as auxiliary to the legal right. the liabilities enforced by the pos-
which it was often necessary to sessory remedies of the Roman law.
establish in an action at law before Some modern authorities, though
the Court of Chancery would inter- not most, regard these as ex delicto.

fere.
 MORAL ELEMENTS. 9

the wrong is wilful or wanton. Either the act is intended

to do harm, or, heing an act evidently likely to cause harm,
it is done with reckless indifference to what may befall
by
reason of it. Either there is deliberate injury, or there is

something like the self-seeking

indulgence of passion, in
contempt of other men's rights and dignity, which the
Greeks called t//3pr. Thus the legal wrongs are such as to
be also the object of strong moral condemnation. It is

needless to show by instances that violence, evil-speaking,

and deceit, have been denounced by righteous men in all
ages. If anyone desires to be satisfied of this, he may
open Homer or the Psalter at random. What is more, we
have here to do with acts of the sort that are next door to
crimes. Many of them, in fact, are criminal offences as
well as civil wrongs. It is a common border land of
criminal and civil, public and private law.

In Group B. this element is at first sight absent, or at Wrongs

any rate indifferent. Whatever may or might be the case

in other legal systems, the intention to violate another's

rights, or even the* knowledge that one is

violating them,
blame,

isnot in English law necessary to constitute the wrong of

trespass as regards either land or goods, or of conversion as

regards goods. On
the contrary, an action of trespass or
of ejectment, which is a special form of trespass has for
centuries been a common and
convenient method of trying
an honestly disputed claim of right. Again, it matters not
whether actual harm is done. " By the laws of England,
every invasion of private property, be it ever so minute, is
a trespass. No man can set his foot upon my ground
without my licence, but he is liable to an action, though
the damage be nothing ;
which
proved by every de-
is

claration in trespass, where the defendant is called upon to

answer for bruising the grass and even treading upon the
 10 THE NATURE OF TOUT IN GENERAL.
"
soil (/). Nor is this all; for dealing with another man's
goods without lawful authority, but under the honest and
even reasonable belief that the dealing is lawful, may be
an actionable wrong notwithstanding the innocence of the
mistake (g). Still less will good intentions afford an excuse.
I find a watch lying in the road ; intending to do the
owner a good turn, I take it to a watchmaker, who to the
best of my knowledge is competent, and leave it with him
to be cleaned. The task isbeyond him, or an incompetent
hand is employed on it, and the watch is spoilt in the
"

attempt to restore it. Without question the owner may

hold me In one word, the duty which the law of
liable.

England enforces is an absolute duty not to meddle with-

out lawful authority with land or goods that belong to
others. And the same principle applies to rights which,
though not exactly property, are analogous to it. There
are exceptions, but the burden of proof lies on those who
claim their benefit. The law, therefore, is stricter, on the
face of things, than morality. There may, in particular
circumstances, be doubt what is mine and what is my
neighbour's but the law expects me at my peril to know
;

what is my neighbour's in every case. Reserving the expla-

nation of this to be attempted afterwards, we pass on.

Wrongs of In Group C. the acts or omissions complained of have a

dence and kind of intermediate character. They are not as a rule
wilfully or wantonly harmful but neither are they morally
;

indifferent, save in a few extreme cases under the third head.

The party has for his own purposes done acts, or brought
about a state of things, or brought other people into a
situation, or taken on himself the conduct of an operation,
which a prudent man in his place would know to be

(/) Per Cur. Entlck v. Carring- (g] See Hollins v. Fowler, L. E.

ton, 19 St. Tr. 1066. 7 H. L. 757, 44 L. J. Q. B. 169.
 MORAL ELEMENTS. 11

attended with certain risks. A man who fails to take

order, in things within his control, against risk to others

which he actually foresees, or which a man of common
sense and competence would in his place foresee, will

scarcely be held blameless by the moral judgment of his

fellows. Legal negligence and similar wrongs
liability for

corresponds approximately to the moral censure on this

kind of default. The commission of something in itself

forbidden by the law, or the omission of a positive and

specific legal duty, though without any intention to cause

harm, can be and is, at best, not more favourably con-

sidered than imprudence if harm happens to come of it ;

and here too morality will not dissent. In some condi-

tions, indeed, and for special reasons which must be con-
sidered later, the legal duty goes beyond the moral one.
There are cases of this class in which liability cannot be

avoided, even by proof that the utmost diligence in the way

of precaution has in fact been used, and yet the party
liable has done nothing which the law condemns (h).

Except in these cases, the liability springs from some

shortcoming in the care and caution to which, taking human
affairs according to the common knowledge and experience
of mankind, we deem ourselves entitled at the hands of
our fellow-men. a point, though not an easily
There is

defined one, where such shortcoming gives rise even to

criminal liability, as in the case of manslaughter by negli-

gence.

We have, then, three main divisions of the law of torts. Relation

In one of them, which may be said to have a quasi- Of torts to

(h) How far such a doctrine can has been explicitly affirmed by the
be theoretically or historically justi- House of Lords: Rylands v. Flet-
fied is not an open question for chcr (1868) L. R. 3 H. L. 330,
English courts of justice, for it 37 L. J. Ex. 16L
12 THE NATURE OF TORT IN GENERAL.

the semi- criminal character, there is a very strong ethical element.

ethical .

precept In another no such element is apparent. In the third such

non laedere. an element is present, though lessmanifestly so. Can we
find any category of human duties that will approxi-

mately cover them all, and bring them into relation with

any single principle? Let us turn to one of the best-

known sentences in the introductory chapter of the Insti-
"
tutes, copied from a lost work of Ulpian. luris praecepta
sunt haec honeste vivere, alterum non laedere, suum
:

cuique tribuere." Honcste vivere is a vague phrase enough ;

it may mean refraining from criminal offences, or possibly

general good behaviour in social and family relations.

Suum cuique tribuere seems to fit pretty well with the law
of property and contract. And what of alterum non
laedere? "Thou shalt do no hurt to thy neighbour."
Our law of torts, with all its irregularities, has for its
main purpose nothing than the development of this
else

precept (i).
This exhibits it, no doubt, as the technical

working out of a moral idea by positive law, rather than

the systematic application of any distinctly legal con-

ception. But all positive law must pre-suppose a moral

standard, and at times more or less openly refer to it ;
and
the more so in proportion as it has or approaches to having
a penal character.

Historical The real difficulty of ascribing any rational unity to our

of tow of l aw f torts is made by the wide extent of the liabilities

trespass mentioned under Group B., and their want of intelligible
version. relation to any moral conception.
A right of property is interfered with " at the peril of

(i) Compare the statement of of Ely, -who was a learned civilian :

"duty towards my neighbour," in "To hurt nobody by word nor

the Church Catechism, probably deed : to be true and just in all
from the hand of Goodrich, Bishop my dealing ..."
 FORMS OF ACTION. 13

the person interfering with it, and whether his interference

"
be for his own use or that of anybody else (&).
And whether the interference be wilful, or reckless, or
innocent but imprudent, or innocent without imprudence,
the legal consequences and the form of the remedy are
for English justice the same.

The truth is that we have here one of the historical Early

anomalies that abound in English law. Formerly we
actlon -
had a clear distinction in the forms of procedure (the
only evidence we have for much of the older theory of the
law) between the simple assertion or vindication of title
and claims for redress against specific injuries. Of course
the same facts would often, at the choice of the party

wronged, afford ground for one or the other kind of claim,

and the choice would be made for reasons of practical con-

venience, apart from any scientific or moral ideas. But the

distinction was in itself none the less marked. For asser- Writs of

tion of title to land there was the writ of right ;

and the writs of

writ of debt, with its somewhat later variety, the writ of

detinue, asserted a plaintiff's title to money or goods in orpunish-

a closely corresponding form (/). Injuries to person or
property, on the other hand, were matter for the writ
of trespass and certain other analogous writs, and (from
the 13th century onwards) the later and more compre-

(k) Lord O'Hagan, L. R. 7 salutem :

Praecipe N. quod iuste
H. L. at p. 799. R. centum
et sine dilations reddat

(1} The -writ of right (Glanvill, marcas quas ei debet, ut dicit, et

Bk. i. c. 6) runs thus "Rex vice-
: unde queritur quod ipse ei iniuste
comiti salutem :
Praecipe A. quod deforceat. Et nisi fecerit, sum-
sine dilatione reddat B. unamhidam mone eum," &c. The writs of
terrae in villa unde idem B.
ilia, covenant and account, which were
queritur quod praedictus A. ei de- developed later, also contain the
forceat : et nisi fecerit, summone characteristic words iuste et sine

eum," &c. The writ of debt (Bk. dilatione.

x. c. 2) thus: "Rex vicecomiti

 THE NATURE OF TORT IN GENERAL.

hensive writ of trespass on the case (m). In the former

kind of process, restitution is the ohject sought; in the
latter, some redress or compensation which, there is great
reason to believe, was originally understood to he a sub-
stitute for retaliation or private vengeance. Now the writs
of restitution, as we may collectively call them, were asso-
ciated with many cumbrous and archaic points of proce-

dure, exposing a plaintiff to incalculable and irrational

risk while the operation of the writs of penal redress was
;

by comparison simple and expeditious. Thus the interest

of suitors led to a steady encroachment of the writ of tres-

pass and its kind upon the writ of right and its kind.
Not only was the writ of right first thrust into the back-
ground by the various writs of assize forms of possessory
real action which are a sort of link between the writ of
right and the writ of trespass and then superseded by
the action of ejectment, in form a pure action of trespass ;

but in like manner the action of detinue was largely sup-

planted by trover, and debt by assumpsit, both of these
new-fashioned remedies being varieties of action on the
case (n). In
the distinction between proceedings
this way
taken on a disputed claim of right, and those taken for
the redress of injuries where the right was assumed not to
be in dispute, became quite obliterated. The forms of

(m} Blackstone, iii. 122 ;

F. N. trespass itself is by no means one
B. 92. The mark of this class of of the most ancient see F. W.
:

actions is the conclusion of the Maitland in Harv. Law Rev. iii.

writ contra pacem. "Writs of assize, 217 219.

including the assize of nuisance, (n] For the advantages of suing

did not conclude, but show
so in case over the older forms of
analogies of form to the writ of actions, see Blackstone, iii. 153,
trespass in other respects. Actions 155. The reason given at p. 152
on the case might be founded on for the wager of law (as to which,
other writs besides that of trespass, see Co. Litt. 295 a) being allowed
e. g. deceit, which contributed in debt and detinue is some one's

largely to the formation of the idle guess, due to mere ignorance

action of assumpsit. The writ of of the earlier history.
 ANOMALIES OF TRESPASS. 15

action were the sole embodiment of such legal theory as

existed ;
and therefore, as the distinction of remedies was
lost,the distinction between the rights which they pro-
tected was lost also. By a series of shifts and devices
introduced into legal practice for the ease of litigants a

great bulk of what really belonged to the law of property

was transferred, in forensic usage and thence in the tra-

ditional habit of mind of English lawyers, to the law of

torts. It will be observed that in our early forms of action

contract, as such, has no place at all (o) ;

an additional
proof of the relatively modern character both of the im-
portance of contract in practical life, and of the growth of
the corresponding general notion.

We are now independent of forms of action.

Trespass Ration-
and trover have become historical landmarks, and the version of
question whether detinue is, or was, an action founded trespass.
on contract or on tort (if the foregoing statement of the
history be correct, it was really neither) survives only to
raise difficulties in applying certain provisions of the
County Courts Act as to the scale of costs in the Superior
Courts (p). It would seem, therefore, that a rational

exposition of the law of torts is free to get rid of the

extraneous matter brought in, as we have shown, by the

practical exigency of conditions that no longer exist. At

the same time a certain amount of excuse may be made
on rational grounds for the place and function of the law
of trespass to property in the English system. It appears

morally unreasonable, at first sight, to require a man at

his peril to know what land and goods are his neighbour's.

(o) Except what may be implied tract: F. N. B. 119; Blackstone,

from the technical rule that the iii. 156.
word debet was proper only in an (p) Bryant v. Herbert (1878) 3
action for a sum of money between C. P. Div. 389, 47 L. J. C. P.
the original parties to the con- 670.
16 THE NATURE Ob' TORT IN GENERAL.

But it is not so evidently unreasonable to expect him to

know what is his own, which is only the statement of the
same rule from the other side. A man can but seldom go
by pure unwitting misadventure beyond the limits of his
own dominion. Either he knows he is not within his

legal right, or he takes no heed, or he knows there is a

doubt as to his right, but, for causes deemed by him
sufficient, he is content to abide (or perhaps intends to

provoke) a legal contest by which the doubt may be

resolved. In none of these cases can he complain with
moral justice of being held to answer for his act. If not
wilfully or wantonly injurious, it is done with some want
of due circumspection, or else it involves the conscious
acceptance of a risk. A form of procedure which attempted
to distinguish between these possible cases in detail would
for practical purposes hardly be tolerable. Exceptional
cases do occur, and may be of real hardship. One can
only say that they are thought too exceptional to count in
determining the general rule of law. From this point of
view we can accept, though we may not actively approve,
the inclusion of the morally innocent with the morally

guilty trespasses in legal classification.

Analogy We may now turn with profit to the comparison of the

Roman Roman system with our own. There we find strongly
tionf ;
marked the distinction between restitution and penalty,
dehcto.
which was apparent in our old forms of action, but became
obsolete in the manner above shown. Mr. Moyle (q) thus
describes the specific character of obligations ex delicto.
" Such
wrongs as the withholding of possession by a
defendant who bona fide believes in his own title are not
delicts, at any rate in the specific sense in which the term
is used in the Institutes ; they give rise, it is true, to a

(q) In his edition of the Institutes, note to Bk. iv. tit. 1, p. 497.
 DOLUS AND CULPA. 17

right of action, but a right of action is a different thing

from an obligatio ex delicto ; they are redressed by mere
reparation, by the wrong-doer being compelled to put the
other in the position in which he would have been had the

wrong never been committed. But delicts, as contrasted

with them and with contracts, possess three peculiarities.
The obligations which arise from them are independent,
and do not merely modify obligations already subsisting ;

they always invoice dolus or culpa ; and the remedies by which

they are redressed are penal."

The Latin dajus. as a technical term, is not properly Dolus and

cupa
rendered by "fraud" in English; its meaning is much
" un-
wider, and answers to what we generally signify by
lawful intention." Culpa is exactly what we mean by
"
negligence," the falling short of that care and circum-
spection which is due from one man to another. The
rules specially dealing with this branch have to define the
measure of care which the law prescribes as due in the case
in hand. The Roman conception of such rules, as worked
out by the lawyers of the classical period, is excellently
" ad
illustrated by the title of the Digest legem Aqui-
liam," a storehouse of good sense and good law (for the
principles are substantially the same as ours) deserving
much more attention at the hands of English lawyers than
it has received. It is to be observed that the Roman
theory was built up on a foundation of archaic materials
by no means unlike our own the compensation of the
;

civilized law stands instead of a primitive retaliation which

was still recognized by the law of the Twelve Tables. If

then we put aside the English treatment of rights of

property as being accounted for by historical accidents,

we find that the Roman conception of delict altogether
supports (and by a perfectly independent analogy) the
p. c
18 THE NATURE OF TORT IN GENERAL.

conception that appears really to underlie the English law

of tort. Liability for delict, or civil wrong in the strict
sense, is the result either of wilful injury to others, or
wanton disregard of what is due to them (dolus), or of a
failure to observe due care and caution which has similar
though not intended or expected consequences (culpa).
We have, moreover, apart from the law of trespass, an
Liability exceptionally stringent rule in certain cases where liability
wane* is attached to the befalling of harm without proof of

either intention or negligence, as was mentioned under

Group of our provisional scheme. Such is the case of
the landowner who keeps on his land an artificial reservoir

of water, if the reservoir bursts and floods the lands of his

neighbours. Not that was wrong of him

it to have a
reservoir there, but the law says he must do so at his own
risk (r) This kind of liability has its parallel in Homan
.

law, and the obligation is said to be not ex delicto, since

true delict involves <Veither dolus or ctilpa, but quasi ex
delicto (s). Whether
avoid the difficulty of proving
to

negligence, or in order to sharpen men's precaution in

hazardous matters by not even allowing them, when harm
isonce done, to prove that they have been diligent, the
mere fact of the mischief happening gives birth to the
obligation. In the cases of carriers and innkeepers a
similar liability a very ancient part of our law.
is What-
ever the original reason of it may have been as matter of

history, we may be was something quite unlike

sure that it

the reasons of policy governing the modern class of cases

of which Hi/lands v. Fletcher (t) is the
type and leading

(r) Rylands v. Fletcher) L. B. that the application of the term in

3 H. L. 330, 37 L. J. Ex. 161. the Institutes is not quite con-
(s) Austin's perverse and unin- sistent or complete. See Mr.
telligent criticism of this perfectly Moyle's notes on I. iv. 5.
rational terminology has been (t) L. K. 3 H. L. 330. See Ch.
treated with far more respect than XII. below,
it deserves. It is true, however,
 RELATION OF WRONG TO DAMAGE. 19

authority ; by such reasons, nevertheless, the rules must

be defended as part of the modern law, if they can be
defended at all.

On the whole, the result seems to be partly negative, but Summary,

also not to be barren. It is hardly possible to frame a
definition of a tort that will satisfy all themeanings in
which the term has been used by persons and in documents
of more or less authority in our law, and will at the same
time not be wider than any of the authorities warrant.
But appears that this difficulty or impossibility is due to
it

particular anomalies, and not to a total want of general

principles. Disregarding those anomalies, we may try to
sum up the normal idea of tort somewhat as follows :

Tort an act or omission (not being merely the breach

is

of a duty arising out of a personal relation, or undertaken

by contract) which is related to harm suffered by a deter-

minate person in one of the following ways :

(a) It may be an act which, without lawful justification

or excuse, is intended by the agent to cause harm,
and does cause the harm complained of.
(b) It may be an act in contrary to law, or an
itself

omission of specific legal duty, which causes harm

not intended by the person so acting or omitting.

(c) It may be an act or omission causing harm which the

person so acting or omitting did not intend to

cause, but might and should with due diligence
have foreseen and prevented.
(d) It may, in special cases, merely in not
consist

avoiding or preventing harm which the party was

bound, absolutely or within limits, to avoid or

prevent.
A special duty of this last kind may be (i) absolute,
20 THE NATURE OF TORT IN GENERAL.

(ii)
limited to answering for harm which is assignable to

negligence.
In some positions a man
becomes, so to speak, an insurer
to the public against a certain risk, in others he warrants
care
only that all has been done for safety that reasonable
can do.
Connected in principle with these special liabilities, but
running through the whole subject, and of constant occur-
rence in almost every division of it, is the rule that a
master is answerable for the acts and defaults of his ser-
vants in the course of their employment.
This is indication rather than definition : but to have

guiding principles indicated is

something. We are en-
titled, and in a manner bound, not to rush forthwith into
a detailed enumeration of the several classes of torts, but to
seek first the common principles of liability, and then the
common principles of immunity which are known as matter
of justification and excuse. There are also special condi-

tions and exceptions belonging only to particular branches,

and to be considered, therefore, in the places appropriate to
those branches.
 CHAPTEE II.

PRINCIPLES OF LIABILITY.

THERE no express authority that I know of for stating "Want

is of

as a general proposition of English law that it is a wrong

to do wilful harm to one's neighbour without lawful justi- law<

fication or excuse. Neither is there any express authority

for the general proposition that men must perform their
contracts. Both principles are, in this generality of form
or conception, modern, and there was a time when neither
was true. Law
begins not with authentic general princi-
ples, but with enumeration of particular remedies. There
is no law of contracts in the modern lawyer's sense, only a

list of certain kinds of agreements which may be enforced.

Neither is there any law of delicts, but only a list of cer-
tain kinds of injury which have certain penalties assigned
to them. Thus in theAnglo-Saxon and other early Grer-
manic laws we find minute assessments of the compensation
due for hurts to every member of the human body, but
there is no general prohibition of personal violence and a ;

like state of things appears in the fragments of the Twelve

Tables (a). Whatever agreements are outside the specified
V

(a) In Gaius iii. 223, 224, the gards the stage of development at-
contrast between the ancient law tained, the law of Justinian, and
of fixed penalties and the modern often that of Gaius, is far more
law of damages assessed by judicial modern than the English law of
authority is clearly shown. The the Year-Books.
student will remember that, as re-
22 PRINCIPLES OF LIABILITY.

forms of obligation and modes of proof are incapable of

of
enforcement; whatever injuries are not in the table
compensation must go without legal redress.
The phrase
damniim sine iniuria, which for the modern law is at best
has meaning and substance enough in such a
insignificant,

system. Only that harm which falls within one of the

categories of wrong-doing entitles the person

specified

aggrieved to a legal remedy.

General Such is not the modern way of regarding legal duties or

to do harm remedies. It not only certain favoured kinds of agree-

is
in modem
men fa^ are protected, but all agreements that satisfy
certain general conditions are valid and binding, subject
to exceptions which are themselves assignable to general
principles of justice and policy. So we can be no longer
satisfied in the region of tort with a mere enumeration of

actionable injuries. The whole modern law of negligence,

with its developments, enforces the duty of fellow-

many
citizens to observe in varying circumstances an appropriate

measure of prudence to avoid causing harm to one another.

The situations in which we are under no such duty appear
at this day not as normal but as exceptional. man cannot A
keep shop or walk into the street without being entitled to
expect and bound to practise observance in this kind, as we
shall more fully see hereafter. If there exists, then, a

positive duty to avoid harm, much more must there exist

the negative duty of not doing wilful harm ; subject, as all

general duties must be subject, to the necessary exceptions.

^The three main heads of duty with which the law of torts
is concerned namely, to abstain from wilful injury, to
respect the property of others, and to use due diligence to
avoid causing harm to others are all alike of a comprehen-
sive nature. As our law of contract has been generalized
by the doctrine of consideration and the action of assumpsit,
 SPECIFIC DUTIES. 23

so has our law of civil wrongs by the wide and various

application of actions on the case (b).

The commission of an act specifically forbidden by law, Acts in

or the omission or failure to perform any duty specifically specific

le s alduty -
imposed by law, is generally equivalent to an act done with
intent to cause wrongful injury. Where the harm that
ensues from the unlawful act or omission is the very kind
of harm which it was the aim of the law to prevent (and
this is the commonestthe justice and necessity of
case),
this rule are manifest without further comment. Where
a statute, for example, expressly lays upon a railway com-

pany the duty of fencing and watching a level crossing,

this a legislative declaration of the diligence to be
is

required of the company in providing against harm to

passengers using the road. Even if the mischief to be
prevented is not such as an ordinary man would foresee as
the probable consequence of disobedience, there is some
default in the mere fact that the law is disobeyed ;
at any
rate a court of law cannot admit discussion on that point ;

and the defaulter must take the consequences. The old-

fashioned distinction between mala prohibita and mala in se
is long since exploded. The simple omission, after notice,
to perform a legal duty, may be a wilful offence within the

meaning of a penal statute (c) . As a matter of general

policy, there are so temptations to neglect public

many
duties of all kinds for the sake of private interest that the
addition of this quasi-penal sanction as a motive to their
observance appears to be no bad thing. Many public

duties, however, are wholly created by special statutes. In

(b} The developed Roman law pluribus modis admitti iniuriam

had was on the
either attained or manifestum est" I. iv. 4, 1.
:

point of attaining a like generality Gutty v. Smith, 12 Q. B. D.

(c)

of application. "Denique aliis 121, 53 L. J. M. C. 35.

24 PRINCIPLES OF LIABILITY.

such cases not an universal proposition that a breach

it is

of the duty confers a private right of action on any and

every person who suffers particular damage from

it. The
extent of the liabilities incident to a statutory duty must
be ascertained from the scope and terms of the statute
itself. Acts of Parliament often contain special provisions
for enforcing the duties declared by them, and those provi-

sions maybe so framed as to exclude expressly, or by

implication, any right of private suit (d). Also there is no

cause of action where the damage complained of "is some-
thing totally apart from the object of the Act of Parlia-
ment," as being evidently outside the mischiefs which it

was intended to prevent. What the legislature has declared

to be wrongful for a definite purpose cannot be therefore
treated as wrongful for another and different purpose (c).

Duty of As duty of respecting proprietary rights, we have

to the

already mentioned that it is an absolute one. Further

illustration is reserved for the special treatment of that

division of the subject.

Duties of Then we have the general duty of using due care and
diligence.
caution. What is due care and caution under
given cir-
cumstances has to be worked out in the special treatment
of negligence. Here we may say that, generally speaking,
the standard of duty is fixed by reference to what we
should expect in the like case from a man of ordinary

sense, knowledge, and prudence.

Moreover, if the party has taken in hand the conduct of

anything requiring and knowledge, we require

special skill
of him a competent measure of the skill and knowledge

(d} Atkinson v. Newcastle Water- (e)

Gorris v. Scott (1874) L. R.
works Co. (1877) 2 Ex. Div. 441, 9 Ex.125, 43 L. J. Ex. 92; Ward
46 L. J. Ex. 775. v. Hobbs (1878) 4 App. Ca. 13, 23,
48 L. J. Q. B. 281.
 DILIGENCE AND COMPETENCE. 25

usually found in persons who undertake such matters.

And this is hardly an addition to the general rule for a ;

man of common sense knows wherein he

competent and is

wherein not, and does not take on himself things in which

he is incompetent. If a man will drive a carriage, he is
bound have the ordinary competence of a coachman
to ;

if he will handle a ship, of a seaman if he will treat a ;

wound, of a surgeon if he will lay bricks, of a bricklayer

; ;

and so in every case that can be put. Whoever takes on

himself to exercise a craft holds himself out as possessing
at least the common skill of that craft, and is answerable

accordingly. If he fails, it is no excuse that he did the

best he, being unskilled, actually could. He must be
reasonably skilled at his peril. As the Romans put it,
imperitia culpae admimeratur (/) . A good rider who goes
out with a horse he had no cause to think ungovernable,

and, notwithstanding all he can do to keep his horse in

hand, run away with by the horse, is not liable for what
is

mischief the horse may do before it is brought under con-

trol again (g) ;
but if a bad rider run away with by a
is

horse which a fairly good rider could have kept in order,

he will be liable. An exception to this principle appears Exception
to be admissible in one uncommon but possible kind of
circumstances, namely, where in emergency, and to avoid
imminent risk, the conduct of something generally en-
trusted to skilled persons taken by an unskilled person
is
;

as if the crew of a steamer were so disabled by tempest

or sickness that the whole conduct of the vessel fell upon
an engineer without knowledge of navigation, or a sailor
without knowledge of steam-engines. So if the driver
and stoker of a train were both disabled, say by sunstroke

(/)*D. 50. 17, de div. reg. iuris (g} Hammack v. White (1862) 11
antiqui, 132 ;
cf.D. 9. 2, ad legem C. B. N. S. 588, 31 L. J. C. P.
Aquiliam, 8. Both passages are 129 ;
Holmes v. Mather (1875) L. R.
from Gains. 10 Ex. 261, 44 L. J. Ex. 176.
26 PRINCIPLES OF LIABILITY.

or lightning, the guard, who is presumably unskilled as

concerns driving a locomotive, is evidently not bound to

perform the driver's duties. So again, a person who is

" first
present at an accident requiring immediate aid," no
skilled aid being on the spot, must act reasonably accord-

ing to common knowledge if he acts at all but he cannot ;

be answerable to the same extent that a surgeon would

be. There does not seem to be any distinct authority for
such cases ;
but we may assume it to be law that no more
isrequired of a person in this kind of situation than to
make a prudent and reasonable use of such skill, be it
much or little, as he actually has.

Liability We shall now consider for what consequences of his

to conse- acts and defaults a man is liable. When complaint is

made that one person has caused harm to another, the first
default.
question is whether his act (ti) was really the cause of that
harm in a sense upon which the law can take action. The
harm or loss may be traceable to his act, but the connexion

may be, in the accustomed phrase, too remote. The

maxim "In iure non remota causa sed proxima spectatur "
is Englished in Bacon's constantly cited gloss "It were :

infinite for the law to judge the causes of causes, and their

impulsions one of another : therefore it contenteth itself

with the immediate cause ;

and j udgeth of acts by that,
without looking any further degree" (i). Liability
to

must be founded on an act which is the "immediate cause"

of harm or of injury to a right.
Again, there may have
been an undoubted wrong, but it may be doubted how
much of the harm that ensues is related to the wrongful

(h) For shortness' sake I shall belongs to the law of torts, or

of ten use the word " act
" alone as raises a question of the measure

equivalent to "act or default." of damages. There could be no

(i)
Maxims of the Law, Reg. 1 .
stronger illustration of the ex-
It is remarkable that not one of tremely modern character of the
the examples adduced by Bacon whole subject as now understood.

fv
 MEASURE OF DAMAGES. 27

act as its " immediate cause," and therefore is to be counted

in estimating the wrong-doer's liability. The distinction^
of proximate from remote consequences is needful first to
ascertain whether there is any liability at all, and then, if

it is established that wrong has been committed, to settle

the footing on which compensation for the wrong is to be
awarded. The normal form of compensation for wrongs, Measure of
as for breaches of contract, in the procedure of our Superior

Courts of common law

has been the fixing of damages in

money by a jury under the direction of a judge. It is

the duty of the judge (k) to explain to the jurors, as a
matter of law, the footing upon which they should
calculate the damages if their verdict is for the plain-
tiff. This footing or scheme is called the "measure of
damages." Thus, in the common case of a breach of con-
tract for the sale of goods, the measure of damages is
the difference between the price named in the contract and
the market value of the like goods at the time when the
contract was broken. In cases of contract there is no
trouble in separating the question whether a contract has
been made and broken from the question what is the
proper measure of damages (/). But in cases of tort the
primary question of liability may itself depend, and it
often does, on the nearness or remoteness of the harm com-

plained Except where we have an absolute duty and

of.

an act which manifestly violates it, no clear line can be

drawn between the rule of liability and the rule of com-

pensation. The measure of damages, a matter appearing

at first sight to belong to thelaw of remedies more than

of
" antecedent rights," constantly involves, in the field of

(k] Hadley v. Baxendak (1854) must, indeed, often turn on the

9 Ex. 341, 23 L. J. Ex. 179. measure of damages. But this
(I) "Whether it is practically need not concern us here,
worth while to sue on a contract
 PRINCIPLES OF LIABILITY.

torts, points that are in truth of the very substance of the

"
law. It is under the head of " measure of damages that
these for the most part occur in practice, and are familiar
to lawyers but their real connexion with the leading
;

principles of the subject must not be overlooked here.

Meaning The meaning of the term " immediate cause" is not

of "imme-
diate capable of perfect or general definition. Even if it had an
cause.'*
ascertainable logical meaning, which is more than doubtful,
it would not follow that the meaning is the same.
legal
In fact, our maxim only points out that some consequences
are held too remote to be counted. What is the test of
remoteness we still have to inquire. The view which I
shall endeavour to justify is that, for the purpose of civil

those consequences, and those only, are deemed

liability,
" "
immediate," proximate," or, to anticipate a little,
" natural and
probable," which a person of average com-
petence and knowledge, being in the like case with the
person whose conduct is complained of, and having the like
opportunities of observation, might be expected to foresee

as likely to follow upon such conduct. This only where

is

the particular consequence is not known to have been in-

tended or foreseen by the actor. If proof of that be forth-
" "
coming, whether the consequence was immediate or not
does not matter. That which a man actually foresees is
to him, at all events, natural and probable.

Liability In the case wrong-doing we have an act in-

of wilful

sequences
tended to do harm, and harm done by it. The inference
of wilful
liability from such an act (given the general rule, and

assuming no just cause of exception to be present) may

seem a plain matter. But even in this first case it is not
so plain as it seems. We have to consider the relation of
that which the wrong-doer intends to the events which in
 CONSEQUENCES. 29

fact are brought to pass by his deed a relation which is ;

not constant, nor always evident. A

man strikes at another
with his fist or a stick, and the blow takes effect as he meant
it to do.Here the connexion of act and consequence is
plain enough, and the wrongful actor is liable for the re-
sulting hurt. But the consequence may be more than was it extends
6
intended, or different. And it may be different either in cense?
respect of the event, or of the r
person affected. Nym
*
q uei)ces
not m-
quarrels with Pistol and knocks him down. The blow is tended,

not serious in itself, but Pistol on a heap of stones

falls

which cut and bruise him. Or they are on the bank of a

deep ditch Nym does not mean to put Pistol into the
;

ditch, but his blow throws Pistol off his balance, whereby
Pistol does fall into the ditch, and his clothes are spoilt.
These are simple cases where a different consequence from
that which was intended happens as an incident of the same
action. Again, one of Jack Cade's men throws a stone at
an alderman. The stone misses the alderman, but strikes
and breaks a jug of beer which another citizen is carrying.
Or Nym and Bardolph agree to waylay and beat Pistol
after dark. Poins comes along the road at the time and

place where they expect Pistol and, taking him for Pistol,
;

Bardolph and Nym seize and beat Poins. Clearly, just as

much wrong isdone to Poins, and he has the same claim to
redress, as if Bardolph and Nym meant to beat Poins, and
not Pistol (m) .
Or, to take an actual and well-known case

(m) In criminal law there is some doubtful whether he can be said

difficulty in the case of attempted to have attempted to kill either X.
personal offences. There is no or Z. Cf. R. v. Latimer (1886) 17
doubt that if A. shoots and kills Q. B. D. 359, 55 L. J. M. C. 135.
or wounds X., under the belief In Germany there is a whole litera-

that the man he shoots at is Z., ture of modern controversy on the

he is in no way excused by the mis- subject. See Dr. R. Franz, Vor-< '

take, and cannot be heard to say stellung und Wille in der modernen
that he had no unlawful intention Doluslehre," Ztsch. f iir die gesamte
astoX. R. v. Smith (1855) Dears.
: Strafrechtswissenschaft, x. 169.
559. But if he misses, it seems
30 PRINCIPLES OF LIABILITY.

in our books (w),Shepherd throws a lighted squib into a

building full of people, doubtless intending it to do mis-

chief of some kind. It falls near a person who, by an

instant and natural act of self-protection, casts it from him.
A third person again does the same. In this third flight

the squib meets with Scott, strikes him in the face, and
explodes, destroying the one eye. Shepherd sight of

neither threw the squib at Scott, nor intended such grave

harm to any one but he is none the less liable to Scott.
;

And so in the other cases put, it is clear law that the

wrong-doer is liable to make good the consequences, and it

is likewise obvious to common sense that he ought to be.

He do harm, and having begun an act of
went about to

wrongful mischief, he cannot stop the risk at his pleasure,

nor confine it to the precise objects he laid out, but must
abide it fully and to the end.

"Natural This principle is commonly expressed in the maxim that

" a man is
quences:"
1 -C
presumed to intend the natural consequences of
-A-*
"
the role to
<
m '

s ac ^ s a proposition which, with due explanation and

:

the actor's
intention.
within due limits, is acceptable,
x but which in itself is

ambiguous. To start from the simplest case, we may know

that the man intended to produce a certain consequence, and
did produce it. And we may have independent proof of
the intention ;
as if he announced it beforehand by threats
or boasting of what he would do. But oftentimes the act
itself is the chief or sole proof of the intention with which
it is done. If we see Nym walk up to Pistol and knock
him down, we infer that Pistol's fall was intended by Nym

(ri)
Scott v. Shepherd, 2 W. Bl. tion is in this case about as ob-
892 ;
and in 1 Sm. L. C. No doubt vious asit can be it was, however,
;

was entertained of Shepherd's lia- not necessary, squib -thro wing, as

bility ;
the only question being in Nares J. pointed out, having been
what form of action he was liable. declared a nuisance by statute.
The inference of wrongful inten-
 CONSEQUENCES. 31

as the consequence of the blow. We may be mistaken in

thisjudgment. Possibly Nym is walking in his sleep, and
has no real intention at all, at any rate none which can be

imputed to Nym awake. But we do naturally infer inten-

tion, and the chances are greatly in favour of our being

right. So nobody could doubt that when Shepherd threw

a lighted squib into a crowded place he expected and meant
mischief of some kind to be done by it. Thus far it is a
real inference, not a presumption properly so called. Now
take the case of Nym knocking Pistol over a bank into the
ditch. We will suppose there is nothing (as there well may
be nothing but Nym's own worthless assertion) to show
whether Nym knew the ditch was there or, if he did know, ;

whether he meant Pistol to fall into it. These questions

are like enough to be insoluble. How shall we deal with

them ? We shall disregard them. From Nym's point of

view his purpose have been simply to knock Pistol
may
down, or to knock him into the ditch also from Pistol's ;

point of view the grievance is the same. The wrong-doer

cannot call on us to perform a nice discrimination of that
which is willed by him from that which is only conse-

quential on the strictly wilful wrong. We say that inten-

tion presumed, meaning that it does not matter whether
is

intention can be proved or not nay, more, it would in the

;

majority of cases make no difference if the wrong-doer

could disprove Such an explanation as this " I did
it.

mean to knock you down, but I meant you not to fall into
the ditch" would, even if believed, be the lamest of

apologies, and it would no less be a vain excuse in law.

The habit by which we speak of presumption comes Meaning

probably from the time when, inasmuch as parties could turalTnd

not give evidence, intention could hardly ever be matter probable"
COHSG
of direct proof. Under the old system of pleading and quence.
32 PRINCIPLES OF LIABILITY.

" the
procedure, Brian 0. J".
might well say, thought of
" more in our maxim
man is not triable (o). Still there is

than this. For although we do not care whether the man

intended the particular consequence or not, we have in
mind such consequences as he might have intended, or,
without exactly intending them, contemplated as possible ;

so that it would not be absurd to infer as a fact that he

either did mean them to ensue, or recklessly put aside the

risk ofsome such consequences ensuing. This is the limit

introduced by such terms as "natural" or more fully,
"natural and probable" consequence (p). What is

natural and probable in this sense is commonly, but not

always, obvious. There are consequences which no man

could, with commonand observation, help foreseeing.
sense
There are others which no human prudence could have
foreseen. Between these extremes is a middle region of
various probabilities divided by an ideal boundary which
will be differently fixed by different opinions and as we ;

approach this boundary the difficulties increase. There is

a point where subsequent events are, according to common

understanding, the consequence not of the first wrongful

act at all, but of something else that has happened in the

meanwhile, though, but for the first act, the event might
or could not have been what it was (q) . But that point
cannot be defined by science or philosophy (r) ;
and even if it

(o) Year-Book 17 Edw. IV. 1, normal or likely to a plain man's

translated in Blackburn on Sale, knowledge and experience,
(q) Thus Quain J. said (Sneesly
at p. 193 in 1st ed., 261 in 2nd ed.

by Graham. v. L. $ Y. Rail. Co., L. E. 9 Q. B.

(p) "Normal, or likely or pro- at p. 268) : "In tort the defendant

bable of occurrence in the ordinary is liable for all the consequences
course of things, would perhaps of his illegal act, where they are
be the better expression" Grove : not soreir.ote as to have no direct
J. in Smith v. Green, 1 C. P. D. connexion with the act, as by the
at p. 96. But what is normal or lapse of time for instance."
a " The doctrine of
likely to specialist may not be (r) causation,"
 CONSEQUENCES. 33

could, the definition would not be of much use for the

guidance of juries. If English law seems vague on these

questions, because, in the analysis made necessary by
it is

the separation of findings of fact from conclusions of law,

it has grappled more closely with the inherent vagueness
of facts than any other system. may now take some We
illustrations of the rule of " natural and probable conse-
"
quences as it is generally accepted. In whatever form
we state it, we must remember that it is not a logical
definition, but only a guide to the exercise of common
sense. The lawyer cannot afford to adventure himself
with philosophers in the logical and metaphysical con-
troversies that beset the idea of cause.

In Vandenburgh v. Truax(s), decided by the Supreme

'

Court of New York in 1847, the plaintiff's servant and the Truax.
defendant quarrelled in the street. The defendant took
hold of the servant, who broke loose from him and ran
" the defendant took
away ; up a pick-axe and followed
the boy, who fled into the plaintiff's store, and the de-
fendant pursued him there, with the pick-axe in his hand."
In running behind the counter for shelter the servant
knocked out the faucet from a cask of wine, whereby the
wine ran out and was lost. Here the defendant (whatever
the merits of the original quarrel) was clearly a wrong-
doer in pursuing the boy the plaintiff's house was a;

natural place for his servant to take refuge in, and it was
"
also natural that the servant, fleeing for his life from a
man in hot pursuit armed with a deadly weapon," should,
in his hasty movements, do some damage to the plaintiff's

property in the shop.

said Fry L. J., "involves much B. 415.

difficulty in
philosophy as in (s) 4 Denio, 464. The decision
law": Seton
Lafone (1887) 19
v. seems to be generally accepted as
Q. B. Div. at p. 74, 56 L. J. Q. good law.
P. T>
34 PRINCIPLES OF LIABILITY.

v. There was a curious earlier case in the same State (t) ,

where one Guille, after going up in a balloon, came down

in- Swan's garden. A
crowd of people, attracted by the
balloon, broke into the garden and trod down the vege-
tables and flowers. Guille's descent was in itself plainly
a trespass and he was held liable not only for the damage
;

done by the balloon itself but for that which was done by
" If his descent under such circumstances
the crowd.

would, ordinarily and naturally, draw a crowd of people

about him, either from curiosity, or for the purpose of

rescuing him from a he ought

perilous situation ;
all this

to have foreseen, and must be responsible for" (u). In both

these cases the squib case was commented and relied on.

Similarly it has many times been said, and it is undoubted

law, that if a man lets loose a dangerous animal in an
inhabited place he is liable for all the mischief it

may do.

Liability The balloon case illustrates what was observed in the

for conse-
quences of first chapter on the place of trespass in the law of torts.
The trespass was not in the common sense wilful Guille ;

certainly did not mean to come down into Swan's garden,

which he with some danger to himself. But
did, in fact,
a man who goes up in a balloon must know that he has to
come down somewhere, and that he cannot be sure of
coming down in a place which he is entitled to use for
that purpose, or where his descent will cause no damage
and no objection. Guille's liability was accordingly
excite
the same as if the balloon had been under his control, and
he had guided it into Swan's garden. If balloons were as

(t) Guille v. Swan (1822) 19 Trustees v. Moss (1889), 17 Ct. of

Johns. 381. Sess. C. 4th S. 32, is hardly so
(w) Per Spencer C.J. It appeared strong, for there a parachute
that the defendant (plaintiff in descent was not only contemplated
error) had called for help but this ; but advertised as a public enter-
was treated as immaterial. The tainment.
recent Scottish cage of Scott's
 REMOTENESS OF DAMAGE. 35

manageable as a vessel at sea, and by some accident which

could not be ascribed to any fault of the traveller the

steering apparatus got out of order, and so the balloon

drifted into a neighbour's garden, the result might be
different. So, if a landslip carries away my land and
house from a hillside on which the house is built, and
myself in the house, and leaves overlying a neighbour's
all

field in the valley, it cannot be said that I am liable for

the damage to my
neighbour's land indeed, there is not;

even a technical trespass, for there is no voluntary act at

all. But where trespass to property is committed by a
voluntary act, known or not known to be an infringement
of another's right, there the trespasser, as regards liability
for consequences, is on the same footing as a wilful
wrong-doer.

A simple example of a consequence too remote to be

Conse-

ground for liability, though it was part of the incidents remote :

following on a wrongful act, is afforded by Glover v. ZAS.JT.

London and South Western Railway Company (c]. The Rmlt Co -

being a passenger on the railway, was charged

plaintiff,

by the company's ticket collector, wrongly as it turned out,

with not having a ticket, and was removed from the train
by the company's servants with no more force than was

necessary for the purpose. He left a pair of race-glasses

in the carriage, which were lost; and he sought to hold
the company liable not only for the personal assault com-
mitted by taking him out of the train, but for the value of
these glasses. The Court held without difficulty that the
" " "
loss was not the necessary consequence or immediate
"
result of the wrongful act : for there was nothing to show
that the plaintiff was prevented from taking his glasses

(v) (1867) L. B. 3 Q. B. 25, 37 L. J. Q. B. 57.

3)2
36 PRINCIPLES OP LIABILITY.

with him, or that he would not have got them if after

leaving the carriage he had asked for them.

Question Jn criminal law the question not ^infrequently occurs, on

of what is .
,
.

killing in a charge of murder or manslaughter, whether a certain act

" immediate cause " of the death of the
law!" or neglect was the
deceased person. We shall
not enter here upon the cases
on this head ;
but the comparison of them will be found in-
teresting. They are collected by Mr. Justice Stephen (x) .

Liability The doctrine of "natural and probable consequence" is

I0r H62TiJL
g-ence most clearly illustrated, however, in the law of negligence.
P 8
on pro- For there the substance of the wrong itself is failure to
babihty of
conse-
acr w{. ^
^Q foresight it has been defined as " the omis-
:

quence, gion to do something which a reasonable man, guided upon

capability those considerations which ordinarily regulate the conduct

foreseen ^ human affairs, would do, or doing something which a

ky a
reasonable
,, prudent
r and reasonable man w ' Now a
would not do" (y).
man. reasonable man can be guided only by a reasonable esti-
mate of probabilities. If men went about to guard them-
selves against every risk to themselves or others which
might by ingenious conjecture be conceived as possible,
human affairs could not be carried on at all. The reason-
able man, then, to whose ideal behaviour we are to look as
the standard of duty, will neither neglect what he can fore-
cast as probable, nor waste his anxiety on events that are
barely possible. He
order his precaution by the
will
measure of what appears likely in the known course of
things. This being the standard, it follows that if in a

particular case (not being within certain special and more

stringent rules) the harm complained of is not such as a

{x] Digest of the Criminal Law, This is not a complete definition,

Arts. 219, 220. since a man is not liable for even

(y) Alderson B. in Blyth v. wilful omission without some ante-

Birmingham Waterworks Co. (1856) cedent ground of duty. But of
11 Ex. 781; 25 L. J. Ex. 212. that hereafter.
 PROXIMATE OR REMOTE CAUSE. 37

reasonable man in the defendant's place should have fore-

seen as likely to happen, there is no wrong and no liability.
And the statement proposed, though not positively laid
" that a
down, in Greenland v. Chaplin (s), namely, person
is expected to anticipate and guard against all reasonable
consequences, but that he is not, by the law of England,
expected to anticipate and guard against that which no
reasonable man would expect to occur," appears to contain
the only rule tenable on principle where the liability is
founded solely on negligence. " Mischief which could by
no have been foreseen, and which no reasonable
possibility

person would have anticipated," may be the ground of

legal compensation under some rule of exceptional severity,
and such rules, for various reasons, exist ;
but under an
ordinary rule of due care and caution it cannot be taken
into account.

We shall now give examples on either side of the line. Examples:

In Hill v. New River Company (a) the defendant company New Ewer
,

'

had in the course of their works caused a stream of water

to spout up in the middle of a public road, without making
any such as fencing or watching it, for the
provision,
safety of persons using the highway. As the plaintiff's
horses and carriage were being driven along the road, the
horses shied at the water, dashed across the road, and fell

intoan open excavation by the roadside which had been

made by persons and for purposes unconnected with the
water company. Itwas argued that the immediate cause
of the injuries to man, horses, and carriage ensuing upon
this fall was not the unlawful act of the water company,
but the neglect of the contractors who had made the cutting
in leaving it open and unfenced. But the Court held that

(z) Per Pollock

C. B. (1850) 5 Harris v. Mobls (Denman J. 1878)
Ex. at p. 248. 3 Ex. D. 268, which, perhaps,

(a) 9 B. & S. 303 (1868) ; cp. goes a step farther,

38 PRINCIPLES OF LIABILITY.

the " proximate cause" was "the first negligent act which
drove the carriage and horses into the excavation." In
fact, it was a natural consequence that frightened horses
should bolt off the road ;
it could not be foreseen exactly
where they would go off, or what they might run against
or fall into. But some such harm as did happen was
probable enough, and it was immaterial for the purpose
in hand whether the actual the ground was
state of

temporary or permanent, the work of nature or of man.

If the carriage had gone into a river, or over an embank-

ment, or down a precipice, it would scarcely have been

possible to raise the doubt.

Williams Williams Great Western Railway Company (b) is a

v.
V. (jr. W
Rail. Co. stronger case, if not an extreme one. There were on a
portion of the company's line in Denbighshire two level
crossings near one another, the railway meeting a carriage-
road in one place and a footpath (which branched off from
the road) in the other. was the duty of the company
It
under certain Acts to have gates and a watchman at the
road crossing, and a gate or stile at the footpath crossing ;

but none of these things had been done.

" On 22nd December, 1871, the plaintiff, a
the child of
four and a-half years old, was found lying on the rails by
the footpath, with one foot severed from his body. There
was no evidence to show how the child had come there,
beyond this, that he had been sent on an errand a few
minutes before from the cottage where he lived, which lay
by the roadside, at about 300 yards distance from the rail-
way, and farther from it than the point where the footpath
diverged from the road. It was suggested on the part of
the defendants that he had gone along the road, and then,

reaching the railway, had strayed down the line ;

and on

(I) L. R. 9 Ex. 157, 43 L. J. Ex. Central Rail. Co. (1883) 111 U. S.

105(1874). Cp. Hayes v. Michigan 228.

 PROXIMATE OR REMOTE CAUSE. 39

the part of the plaintiff that he had gone along the open
,

footpath, and was crossing the line when he was knocked

down and injured by the passing train."
On these facts it was held that there was evidence proper
to go to a jury, and on which they might reasonably find

that the accident to the child was caused by the railway

" One at
company's omission to provide a gate or stile.

least of the objects for which a gate or stile is required is

to warn people of what is before them, and to make them

pause before reaching a dangerous place like a railroad" (c).

In of Romneij Marsh v. Trinity House (d), a Bailiffs of

Bailiffs
<

Trinity House cutter had by negligent navigation struck on Mars h\.

a shoal about three-quarters of a mile outside the plaintiffs' S"* w y
^
sea-wall. Becoming unmanageable, the vessel was in-

evitably driven by strong wind and tide against the sea-

wall, and did much damage to the wall. It was held

without difficulty that the
Corporation of the Trinity
House was liable (under the ordinary rule of a master's
responsibility for his servants, of which hereafter) for this

damage, as being the direct consequence of the first default

which rendered the vessel unmanageable.

Something like this, but not so simple, was Lynch -y. Lynch \.
ut m '

Nurdin (e), where the owner of a horse and cart left them
un watched in the street ;
some children came up and began
playing about the cart, and as one of them, the plaintiff in

Amphlett B. at p. 162.
(c} gation ran into a bark, and disabled
L. R. 5 Ex. 204, 39 L. J.
(d] her; the bark was driven on shore ;

Ex. 163 (1870) in Ex. Ch. L. R.

;
held that the owners of the brig
7 Ex. 247 (1872). This comes near were liable for injury ensuing from.
the case of letting loose a danger- the wreck of the bark to persons on
ous animal a drifting vessel is in
: board her.
itselfa dangerous thing. In The (c}
1 Q. B. 29, 10 L. J. Q. B. 73
George and Richard, L. R. 3 A. & '(1841) ; cp. Clark v. Chambers, 3 Q.
E. 466, a brig by negligent navi- B. D. at p. 331.
40 PRINCIPLES OF LIABILITY.

the cause, was climbing into the cart another pulled the
horse's bridle, the horse moved on, and the plaintiff, fell
down under the wheel of the cart and was hurt. The
owner who had left the cart and horse unattended was
held liable for this injury. The Court thought it strictly
" to
within the province of a jury pronounce on all the
circumstances, whether the defendant's conduct was want-

ing in ordinary care, and the

harm to the plaintiff such a
result of it as might have been expected" (/).

Con- on the whole the disposition of the

It will be seen that
trasted
cases of Courts has been to extend rather than to narrow the range
non-
liability
of
" natural and
probable consequences." A pair of cases
and lia- at first sight pretty much alike in their facts, but in one of
bility :
Cox v. which the claim succeeded, while in the other it failed, will
Burbidge,
Lee v. show where the line is drawn. If a horse escapes into a
lliley.
public road and kicks a person who is lawfully on the
road, its owner is not liable unless he knew the horse to be
vicious (g). He was bound indeed to keep his horse from
straying, but not an ordinary consequence of a horse
it is

being loose on a road that it should kick human beings

without provocation. The rule is different however if a
horse by reason of a defective gate strays not into the road

(/) This case was relied on in fendant's truck, which whirled

Massachusetts in Powell v. Deveney round and struck and injured the
(1849) 3 Gush. 300, where the de- plaintiff, who was on the sidewalk.
fendant's truck had, contrary to Held, the defendant was liable. If
local regulations, been left out in the case had been that the shafts
the street for the night, the shafts of the truck remained on the side-
being shored up and projecting into walk, and the plaintiff afterwards
the road a second truck was simi-
: stumbled on them in the dark, it
larly placed on the opposite side of would be an almost exact parallel
the road : the driver of a third to Clark v. Chambers (3 Q. B. D.
truck, endeavouring with due cau- 327, 47 L. J. Q. B.427; see below).
tion, as it was found, to drive past (g} Cox v. Burbidge (1863) 13 C.
through the narrowed fairway thus B. N. S. 430, 32 L. J. C. P. 89.
left, struck the shafts of the de-
 PROXIMATE OR REMOTE CAUSE. 41

but into an adjoining field where there are other horses,

and .kicks one of those horses. In that case the person
whose duty it was to maintain the gate is liable to the
owner of the injured horse (ti).

The leading case of Metropolitan Hail. Co. v. Jackson (i)

MetropoU-

is
though the problem arose and was
in truth of this class, Co. v.
son '
considered, in form, upon the question whether there was

any evidence of negligence. The plaintiff was a passenger

in a carriage already over-full. As
the train was stopping
at a station, he stood up to resist yet other persons who
had opened the door and tried to press in. While he was
thus standing, and the door was open, the train moved on.
He laid his hand on the door-lintel for support, and at the
same moment a porter came up, turned off the intruders,
and quickly shut the door in the usual manner. The
thumb was caught by
plaintiff's the door and crushed.
After much difference of opinion in the courts below,

mainly due to a too literal following of certain previous

authorities, the House of Lords unanimously held that,

assuming the failure to prevent overcrowding to be negli-

gence on the company's part, the hurt suffered by the
plaintiff was not nearly or certainly enough connected
with it to give him a cause of action. It was an accident
which might no less have happened if the carriage had
not been overcrowded at all.

Unusual conditions brought about by severe frost have Non-

more than once been the occasion of accidents on which

(h) Lee v. Riley (1865) 18 C. B. Ellis v. Loftm Iron Co., L. R. 10

N. S. 722, 34 L. J. C. P. 212. C. P. 10, 44 L. J. C. P. 24.
Both decisions were unanimous, (i] 3 App. Ca. 193, 47 L. J.
and two judges (Erie C. J. and C. P. 303 (1877).

Keating J.) took part in both. Cp.

42 PRINCIPLES OF LIABILITY.

sequences untenable claims for compensation have been founded, the

f 91
t a te of" Courts holding that the mishap was not such as the party
things :
his negligence could reason-
Blyth v. charged with causing it by
Birming- ably be expected to provide against.
In the memorable
ham
IFater-
" Crimean winter" of 1854-5 a attached to one
fire-plug
ivorks Co.
of the mains of the Birmingham "Waterworks Company
was deranged by the frost, the expansion of superficial ice

forcing out the plug, as it afterwards seemed, and the

water from the main being dammed by incrusted ice and
snow above. The escaping water found its way through
the ground into the cellar of a private house, and the

occupier sought to recover from the company for the

damage. The Court held that the accident was manifestly
an extraordinary one, and beyond any such foresight as
could be reasonably required (k) . Here nothing was
alleged as constituting a wrong on the company's part
beyond the mere fact that they did not take extraordinary
precautions.

Sharp v. The Sharp v. Powell (I) goes farther, as the

later case of
Powell.
story begins with an act on the defendant's part "which
was a clear breach of the law. He caused his van to be
washed in a public contrary to the Metropolitan
street,
Police Act. The water ran down a gutter, and would in
fact (m) (but for a hard frost which had then set in for

some time) have run harmlessly down a grating into the

sewer, at a corner some twenty-five yards from where the
van was washed. As it happened, the grating was frozen

(k) Blyth v. Birmingham Water- parison with the others here cited.
works Co. (1856) 11 Ex. 781, 25 Cp. Mayne on Damages, Preface
L. J. Ex. 212. The question was to the first edition.
not really of remoteness of damage, (0 L. R. 7 C. P. 253, 41 L. J.
but whether there was any evidence C. P. 95 (1872).
of negligence at all: nevertheless (m) So the Court found, having
the case is instructive for com- power to draw inferences of fact.
 PROXIMATE OR REMOTE CAUSE. 43

over, the water spread out and froze into a sheet of ice,
and a led horse of the plaintiff's slipped thereon and broke
its knee. It did not appear that the defendant or his
servants knew of the stoppage of the grating. The Court
" within the
thought the damage was not ordinary conse-
" " one
quences (n) of such an act as the defendant's, not
which the defendant could be expected to anticipate
fairly
"
as likely to ensue from his act (o) he " could not
:

reasonably be expected to foresee that the water would

accumulate and freeze at the spot where the accident hap-
pened" (p).

Some doubt appears to be cast on the rule thus laid Question,

if the same
down which, it is submitted, the right one by what rule holds
is

was said a few years later in Clark v. Chambers (#), though quen ces of
not by
J the decision itself. This case raises the question Wllful
wrong :

whether the liability of a wrong-doer may not extend Clark v.

even to remote and unlikely consequences where the origi-
nal wrong is a wilful trespass, or consists in the unlawful
or careless use of a dangerous instrument. The main facts
were as follows :

The defendant without authority set a barrier, partly

1.

armed with spikes (chevaux-de-frise), across a road subject

to other persons' rights of way. An opening was at most
times left in the middle of the barrier, and was there at
the time when the mischief happened.
2. The plaintiff went after dark along this road and

through the opening, by the invitation of the occupier of

one of the houses to which the right of using the road

belonged, and in order to go to that house.

3. Some one, not the defendant or any one authorized
by
him, had removed one of the chevaux-de-frise barriers, and
() Grove J. (q) 3 Q. B. D. 327, 47 L. J. Q.
(o)Keating J. B. 427(1878).
(p) Bovill C. J.
44 PRINCIPLES OF LIABILITY.

set iton end on the footpath. It was suggested, but not

a person entitled to use the
proved, that this was done by
road, in exercise of his right to remove the unlawful
obstruction.
4. Eeturning later in the evening from his friend's
house, the plaintiff, passing through the
after safely
central opening above mentioned, turned on to the foot-

path. He there came against the chevaux-de-frise thus

displaced (which he could not see, the night being very
dark), and one of the spikes put out his eye.
After a verdict for the plaintiff the case was reserved
for further consideration, and the Court (r) held that the

damage was nearly enough connected with the defendant's

first wrongful act namely, obstructing the road with
instruments dangerous to people lawfully using it for the

plaintiff to be entitled to judgment. It is not obvious why

and how, if the consequence in Clark v. Chambers was
natural and probable enough to justify a verdict for the

plaintiff, that in Sharp v. Powell was too remote to be

submitted to a jury at all. The Court did not
dispute the
correctness of the judgments in Sharp v. Powell " as appli-
cable to the circumstances of the particular case;" but their
final observations (s) certainly tend to the opinion that in
a case of active wrong-doing the rule is different. Such
an opinion, it is submitted, is against the general weight of
authority, and against the principles underlying the autho-
rities (t). However, their conclusion may be supported,

(r) Cockburn C. J. and Manisty (s)

3 Q. B.D. at p. 338.
J. The point chiefly argued for (t) Compare the cases on slander
the defendant seems to have been collected in the notes to Vicars v.
that the intervention of a third Wilcocks, 2 Sm. L. C. Compare
person's act prevented him from also, as to consequential liability
being liable a position which is
: for disregard of statutory provi-
clearly untenable (see Scott v. sions, Gorris v. Scott (1874), L. R.
Shepherd) but the
; judgment is 9 Ex. 125, 43 L. J. Ex. 92.
of wider scope.
 CONSEQUENCES. 45

and may have been to some extent determined, by the

special rule imposing the duty of what has been called
" consummate caution" on
persons dealing with dangerous
instruments.

Perhaps the real solution is that here, as in Hill v. New Conse-

River Co., the kind of harm which in fact happened might natural in

have been expected, though the precise manner in which it Jjj^Lh

happened was determined by an extraneous accident. If not in circum-
in this case the spikes had not been disturbed, and the stance,

plaintiff had in the dark missed the free space left in the

barrier, and run against the spiked part of it, the defen-
dant's liability could not have been disputed. As it was,
the obstruction was not exactly where the defendant had
put it, but still it was an obstruction to that road which
had been wrongfully brought there by him. He had put
it in the plaintiff's than Shepherd put his squib
way no less

in the way of striking Scott whereas in Sharp v. Powell

;

the mischief was not of a kind which the defendant had

any reason to foresee.

The turn taken by the discussion in Clark v. Chambers

was, in this view, unnecessary, and it is to be regretted

that a considered judgment was delivered in a form tend-
ing to unsettle an accepted rule without putting anything
definite in its place. On the whole, I submit that, whether
Clark v. Chambers can stand with it or not, both principle
and the current of authority concur to maintain the law
as declared in Sharp v. Powell.

Where a wrongful or negligent act of A., threatening Damages

' *
for n.Gr
Z. with immediate bodily hurt, but not causing such hurt, vous or
" nervous "
produces in Z. a sudden terror or shock from ock"
which bodily illness afterwards ensues, is this damage too whether
too re-
remote to enter into the measure of damages if A.'s act mote.

was an absolute wrong, or to give Z. a cause of action if

46 PRINCIPLES OF LIABILITY.

actual the gist of the action? The Judicial

damage is

Committee decided in 1888 (M) that such consequences are

too remote ;
but it is submitted that the decision is not

satisfactory. A husband and wife were driving in a buggy

across a level railway crossing, and,through the obvious
and admitted negligence of the gatekeeper, the buggy was
nearly but not quite run down by a train the husband ;

" which
got the buggy across the line, so that the train,
was going at a rapid speed, passed close to the back of it
and did not touch it." The wife then and there fainted,
and it was proved to the satisfaction of the Court below
" that she received a severe nervous shock from the
fright,
and that the illness from which she afterwards suffered
was the consequence of the fright." It may be conceded

any other emotion of the mind,

that the passion of fear, or
however painful and distressing it be, and however reason-
able the apprehension which causes it, cannot in itself be

regarded as measurable temporal damage ;

and that the
judgment appealed from, if and so far as it purported to
" mental "
allow any distinct damages for injuries (a?),
was
erroneous. But their Lordships seem to have treated this

as obviously involving the further proposition that physical

illnesscaused by reasonable fear is on the same footing.
This does not follow. The true question would seem to be
whether the fear in which the was put by the plaintiff
defendant's wrongful or negligent conduct was such as, in
the circumstances, would naturally be suffered by a person
of ordinary courage and temper, and such as might there-
upon naturally and probably lead, in the plaintiff's case, to

(w) Victorian Hallway Commis- The physical injuries were sub-

sioners v. Coultas, 13 App. Ca. 222, stantial enough, for they included
67 L. J. P. C. 69. a miscarriage (ibid.} Whether that
(x) It is by no means clear that was really due to the fright was
such was the intention or effect. eminently a question of fact, and
See the report, 12 V. L. R. 895. this was not disputed or discussed.
 CONSKQUEKCES. 47

the physical effects complained of. Fear taken alone falls

short of being actual damage, not because it is a remote or

unlikely consequence, but because it can be proved and

measured only by physical effects. The opinion of the

Judicial Committee, outside the colony of Yictoria, is as

extra-judicial as the contrary and (it is submitted) better

opinion expressed in two places (y) by Mr. Justice Stephen
as to the possible commission of murder or manslaughter
"
by the wilful or reckless infliction of nervous shock."
And the reasoning of the Judicial Committee be correct,
if
'

it becomes rather difficult to see on what principle assault

without battery is an actionable wrong (z).

(y) Dig. Cr. Law, note to art. has been frightened by the defen-
221; Hist. Cr. Law, iii. 5. dant's negligent act: Manchester

(z) Cp. Mr. Beven's criticism of South Jn. R. Co. v. Fullarton (1863)
this case, Principles of the Law of 14 C. B. N. S. 54 SimJcin v. L. $
;

Negligence, 6671. As he justly N. W. R. Co. (1888) 21 Q. B. Div.

points out, it has never been ques- 453 ;
Brown v. Eastern and Midlands
tioned that an action may lie for R. Co. (1889) 22 Q. B. Div. 391.

damage done by an animal which

48

CHAPTER III.

PERSONS AFFECTED BY TORTS.

1. Limitations of Personal Capacity.

Personal Ix the law of contract various grounds of personal dis-

status, as
a rule, ability have to be considered with some care. Infants,
imma-
terial in married women, lunatics, are in different degrees and for
law of
different reasons incapable of the duties and rights arising
tort : but
capacity out of contracts. In the law of tort it is otherwise.
in fact
may be Generally speaking, there is no limit to personal capacity
material.
either in becoming liable for civil injuries, or in the power
of obtaining redress for them. It seems on^jmncjple

that where a particular intention, knowledge, or state of

mind in the person charged as a wrong-doer is an element,
as it sometimes in constituting the alleged wrong, the
is,

age and mental capacity of the person may and should be

taken into account (along with other relevant circum-

stances) in order to ascertain as a fact whether that in-

tention, knowledge, or state of mind was present. But in

every case it would be a question of fact, and no exception

to the general rule would be established or propounded (a) .

An idiot would scarcely be held answerable for incoherent

words of vituperation, though, if uttered by a sane man,

(a) Ulpian, in D. 9, 2, ad leg. est verissimum. . . . Quod si

Aquil. 5, 2. Quaerimus, si impubes id fecerit, Labeo ait, quia

furiosus damnum an legis
dederit, furti tenetur, teneri et Aquilia

Aquiliae actio sit? Et Pegasus eum ;

et hoc puto verum, si sit
negavit quae enim in eo culpa sit,
: iam iniuriae capax.
cum suae mentis non sit ? Et hoc
 CONVICTS: ALIEN ENEMIES: INFANTS. 49

they might be slander. But this would not help a mono-

maniac who should write libellous post-cards to all the
people who had
refused or neglected, say to supply him
with funds to recover the Crown of England. The amount
of damages recovered might be reduced by reason of the
evident insignificance of such libels but that would be ;

all.
Again, a mere child could not be held accountable
for not using the discretion of a man but an infant is ;

wrongs of omission as well as of

certainly liable for all
commission in matters where he was, in the common
phrase, old enough to know better. It is a matter
common sense, just as we do not expect of a blind man
the same actions or readiness to act as of a seeing man.

There exist partial exceptions, however, in the case of Partial or

. . apparent
convicts and alien enemies, and apparent exceptions as to excep-
infants and married women.

Aconvicted felon whose sentence is in force and unex- Convicts

"
pired, and who is not lawfully at large under any enemies,
"
licence," cannot sue for the recovery of any property,
"
debt, or damage whatsoever (b). An alien enemy cannot
sue in his own right in any 'English court. Nor is the

operation of the Statute of Limitations suspended, it

seems, by the personal disability (c).

With regard to infants, there were certain cases under Infants :

the old system of pleading in which there was an option to no t to be

sue for breach of contract or for a tort. In such a case an
infant 'could not be made liable for what was in truth a by
/in tort.

(b) 33 & 34 Viet. c. 23, ss. 8, 30. (c) See

De Wahl v. Braune (1856)
Can he sue for an injunction? Or 1 H. & N. 178, 25 L. J. Ex. 343
for a dissolution of marriage or (alien enemy : the law must be the
judicial separation? same of a convict).

'E
50 PERSONS AFFECTED BY TORTS.
" You
breach of contract by framing the action ex delicto.
cannot convert a contract into a tort to enable you to sue
an infant: Jennings v. Rundatt" (d). And the principle

j. goes to this extent, that no action lies against an infant for

a fraud whereby he has induced a person to contract with

him, such as a false statement that he is of full age (e).

Limits of But where an infant commits a of which a con-

the rule :
wrong
indepen- tract, or the obtaining of something under a contract, is
dent
the occasion, but only the occasion, he is liable. In
wrongs.
Burnard v. Haggis (f), the defendant in the County Court,
an infant undergraduate, hired a horse for riding on the
express condition that it was not to be used for jumping ;

he went out with a friend who rode this horse by his de-
sire, making a cut across country, they jumped divers
and,
hedges and ditches, and the horse staked itself on a fence
and was fatally injured. Having thus caused the horse to
be used in a manner wholly unauthorized by its owner,
the defendant was held to have committed a mere trespass
or "independent tort," for which he was liable to the

owner apart from any question of contract, just as if he

had mounted and ridden the horse without hiring or leave.

Infant Also has been established by various decisions in the

it

take ad- Court of Chancery that " an infant cannot take advantage
C
^ ^ s own fr au(l :" that is, he
compelled to specific
maybe
fraud.
restitution, where that is possible, of anything he has ob-
tained by deceit, nor can he hold other persons liable for

(d] 8 T. R. 335, thus cited by Dawson, 1 De G-. & Sin. at p. 113 ;

Parke B., Fair hurst v. Liverpool cp. the remarks at p. 110.

Adelphi Loan Association (1854) 9 (/) 14 C. B. N. S. 45, 32 L. J.
Ex. 422, 23 L. J. Ex. 163. C. P. 189 (1863). The wrongful
Johnson v. Pie, 1 Sid. 258, &c.
(e) actwas such as to determine the
See the report fully cited by Knight bailment. Compare the authori-
Bruce V.-C. (1847) in Stikeman v. ties on conversion, Ch. IX. below.
 MARRIED WOMEN. 51

acts done on the faith of his false statement, which would

have been duly done if the statement had been true (y).
Thus, where an infant had obtained a lease of a furnished
7

house by representing himself as a responsible person and

of full age, the lease was declared void, and the lessor to

be entitled to delivery of possession, and to an injunction

to restrain the lessee from dealing with the furniture and

effects, but not to damages for use and occupation (</).

As to married women, a married woman was by the Married

women :

common law incapable of binding herself by contract, and the com-

T
therefore, like an infant, she could not be made liable as
for a wrong in an action for deceit or the like, when this
would have in substance amounted to making her liable on
a contract (/>). In other cases of wrong she was not under

any nor had she any immunity but she had to

disability, ;

sue and be sued jointly with her husband, inasmuch as

her property was the husband's ; and the husband got the
benefit of a favourable judgment and was liable to the

consequences of an adverse one.

Since the Married Women's Property Act, 1882, a Married

married woman
can acquire and hold separate property in Property
Act 1882<
her own name, and sue and be sued without joining her >

husband if she is sued alone, damages and costs recovered

;

against her are payable out of her separate property (i).

(g)Lempriere v. Lange (1879) 12 which arose before it came into

Ch. D. 675; and see other cases in operation : Weldon v. Winslow
the writer's "Principles of Con- (1884) 13 Q. B. Div. 784, 53 L. J.
tract," p. 75, 5th ed. Q. B. 528. In such case the
(h) Fairhurst v. Liverpool Adelphi Statute of Limitation runs not
Loan Association (1854) 9 Ex. 422, from the committing of the wrong,
23 L. J. Ex. 163. but from the commencement of the
(i)
45 & 46 Viet. c. 75, s. 1. Act: Lowe v. Fox (1885) 15 Q. B.
The right of action given by the Div. 667, 54 L. J. Q. B. 561.
statute applies to a cause of action

E2
52 PERSONS AFFECTED BY TORTS.

She may own husband, if necessary, " for the pro-

sue her
"
tection and security of her own separate property but ;

otherwise actions for a tort between husband and wife

cannot be entertained (/). That is, a wife may sue her

husband in an action which under the old forms of plead-

ing would have been trover for the recovery of her goods,
or for a trespass or nuisance to land held by her as her
separate property ; but she may not sue him in a civil
action for a personal wrong, such as assault, libel, or injury

by negligence. Divorce does not enable the divorced wife

to sue her husband for a personal tort committed during
the coverture (k) There is not anything in the Act to pre-
.

vent a husband and wife from suing or being sued jointly

according to the old practice the husband is not relieved

;

from wrongs committed by the wife during

liability for

coverture, and may still be joined as a defendant at need.

If it were not so, a married woman having no separate

property might commit wrongs with impunity (I). If

husband and wife are now jointly sued for the wife's
wrong, and execution issues against the husband's property,
a question may possibly be raised whether the husband is
entitled to indemnity from the wife's separate property, if

in fact she has any (m).

Common There some authority for the doctrine that

law lia-
is
by the

(j) Sect. 12. A trespasser on (&) Phillips v. Barnet (1876) 1

the wife's separate property cannot Q. B. Div. 436, 45 L. J. Q. B.
justify under the husband's autho- 277.
rity. Whether the husband him- (I) SeroJca v. Kattenburg (1886)
selfcould justify entering a house, 17 Q. B. Div. 177, 55 L. J. Q. B.
his wife's separate property, ac- 375.
quired as such before or since the (m} Sect. 13, which expressly
Act, in which she is living apart, provides for ante-nuptial liabilities,
quare : Weldon v. De Bathe (1884) is rather against the existence of
14 Q. B. Div. 339, 54 L. J. Q. B. such a right.
113.
 CORPORATIONS. 53

common law both infants (n) and married women (o) are biHty of
. infants
" such as trespass, which were and mar-
liable only for actual torts
formerly laid in pleading as contra pacem, and are not in ^en^
lunite
any case liable for torts in the nature of deceit, or, in the ^>
according
" sound in deceit." But
old phrase, in actions which this to some,

does not seem acceptable on principle. contra

pacem.

As to corporations, it is evident that personal injuries Corpora-

cannot be inflicted upon them. It would seem at first

sight, and it was long supposed, that a corporation also

cannot be liable for

personal wrongs (p). But this is
really part of the larger question of the liability of prin-
cipals and employers for the conduct of persons employed

by them ;
for a corporation can act and become liable only
through its
agents or servants. In that connexion we
recur to the matter further on.
The greatest difficulty has been (and by some good
authorities still is) felt in those kinds of cases where " malice
"
in fact actual ill-will or evil motive has to be proved.

Wherebodies of persons, incorporated or not, are in-

trusted with the management and maintenance of works, public

(n) Johnson v. Pie, p. 50, supra authorities collected by Serjeant

(a dictum wider than the decision). Manning in the notes to Maund v.

(o) Wright v.
Leonard (1861) 11 Monmouthshire Canal Co., 4 M. &
C. B. N. S. 258, 30 L. J. C. P. G. 452. But it was decided in the
365, J. and Byles J.,
by Erie C. case just cited (1842) that trespass,

against Willes J. and Williams J. as earlier in Yarborough v. Bank of

The judgment of Willes J. seems England (1812) 16 East 6, that
to me conclusive. trover, would lie against a corpora-
The difficulty felt in earlier
(p) tion aggregate. In Massachusetts
times was one purely of process ;
a corporation has been held liable
not that a corporation was meta- for the publication of a libel Fogg:

physically incapable of
doing v. Boston and Lowell R. Co. (1889)

wrong, but that it was not physi- 148 Mass. 513. And see per Lord
cally amenable to capias or exigent : Bramwell, 11 App. Ca. at p. 254,
22 Ass. 100, pi. 67, and other
 PERSONS AFFECTED BY TORTS.

bodies for or the performance of other duties of a public nature, they

manage-
ment of are in their corporate or quasi- corporate capacity respon-
works, &c. sible for the
under proper conduct of their undertakings no less
their than if they were private owners : and this whether they
control.
derive any profit from the undertaking or not (q).
The same principle has been applied to the management
of a public harbour by the executive government of a

British colony (r). The rule is subject, of course, to the

special statutory provisions

as to liability and remedies
that may exist in any particular case (s).

2. Effect of a Party's Death.

Effect of We have next to consider the effect produced on liability

death of
either for a wrong by the death of either the person wronged or the
party. This is one of the least rational parts of our
Actio per- wrong-doer.
sonalis law. The common law maxim is actio personalis moritur
moritur
cum per- cum persona, or the right of action for tort put an end to
is
sona.
by the death of either party, even if an action has been
commenced in his lifetime. This maxim " is one of some
"
antiquity, but its origin is obscure and post- classical (t}.

Causes of action on a contract are quite as much " personal"

in the technical sense, but, with the exception of promises
of marriage, and (it seems) injuries to the person by neg-

ligent performance of a contract, the maxim does not apply

to these. In cases of tort not falling within statutory excep-

(q] Mersey Docks Trustees v. from New Zealand) 9 App. Ca.

Gi&bs (1864-6) L. R. 1 H. L. 93, 418.
35 L. J. Ex. 225 see the very full
:
(s)
L. R. 1 H. L. 107, 110.
and careful opinion of the judges (t) Bowen and FryL.JJ., Finlay
delivered by Blackburn J., L. R. 1 v. Chirney (1888) 20 Q. B. Div.
H. L. pp. 102 sqq. in which the
t 494, 502, 57 L. J. Q. B. 247 see :

previous authorities are reviewed. this judgment on the history of

(r) Rey. v. Williams (appeal the maxim generally.

 ACTIO PERSONALTS, ETC. 55

be presently mentioned, the estate of the person

tions, to

wronged has no claim, and that of the wrong-doer is not

liable. Where an action on a tort is referred to arbitration,
and one of the parties dies after the hearing but before the

making of the award, the cause of action is extinguished not-

withstanding a clause in the order of reference providing for
delivery of the award to the personal representatives of a
party dying before the award is made. Such a clause is in-
sensible with regard to a cause of action in tort the agree- ;

ment for reference being directed merely to the mode of trial,

and not extending to alter the rights of the parties (u) A .

very similar rule existed in Roman law, with the modifi-

cation that the inheritance of a man who had increased his
estate by dolus was bound to restore the profit so gained,

and that in some might sue but could not be

cases heirs

sued (#). Whether derived from a hasty following of the

Roman rule or otherwise, the common law knew no such
variations ;
the maxim was absolute. At one time it

have been justified by the vindictive and #ws

character of suits for civil injuries. A process which is

still be a substitute for private war may seem

felt to

incapable of being continued on behalf of or against a

dead man's estate, an impersonal abstraction represented
no doubt by one or more living persons, but by persons who
need not be of kin to the deceased. Some such feeling
seems to be implied in the dictum, " If one doth a trespass
to me, and dieth, the action is dead also, because it should

be inconvenient to recover against one who was not party

(u) Bowker v. Evans (1885) 15 litis contestatio did not abate the
Q. B. Div. 565, 54 L. J. Q. B. 421. action in any case. It has been

(x) I. iv. 12,

de perpetuis et conjectured that pcrsonalis in the
temporalibus actionibus, 1 Another.
English maxim is nothing but a
difference in favour of the Roman misreading of poenalis.
law is that death of a party after
56 PERSONS AFFECTED BY TORTS.

"
to the wrong (y). Indeed, the survival of a cause of

action was the exception in the earliest English law (z).

A barbar- But when once the notion of vengeance has been put
ous rule. . ,

aside, and that of compensation substituted, the rule actio

personalis moritur cum persona seems to be without plausible

ground. First, as to the liability, it is impossible to see
why a wrong-doer's estate should ever be exempted from
making satisfaction for his wrongs. It is better that the

residuary legatee should be to some extent cut short than

that the person wronged should be deprived of redress.
The legatee can in any what prior claims
case take only

leave for him, and there would be no hardship in his

taking subject to all obligations, ex delicto as well as ex

contractu, to which his testator was liable. Still less could

the reversal of the rule be a just cause of complaint in the
case of intestate succession. Then as to the right : it is

supposed that personal injuries cause no damage to a

man's estate, and therefore after his death the wrong-
doer has nothing to account for. But this is oftentimes
not so in fact. And, in any case, why should the law,

contrary to its own principles and maxims in other depart-

ments, presume it, in favour of the wrong-doer, so to be ?
Here one may almost say that omnia pmesumuntur pro
spoUatore. Personal wrongs, it is allowed, may " operate
"
to the temporal injury of the personal estate, but without

express allegation the Court will not intend it (a), though

in the case of a
wrong not strictly personal it is enough if
such damage appears by necessary implication (b). The

(y) Newton C. J. in Year-Book (a) Chamberlain v. Williamson, 2

19 Hen. VI. 66, pi. 10 (A.D. 1440- M. & S. at p. 414.

41). (b) Twycross v. Grant (1878) 4

(z)
20 Q. B. Piv, 503. C. P. Div. 40, 48 L, J. 0. P. I,
 ACTIO PERSONALIS, ETC. 57

burden should rather lie on the wrong-doer to show that

the estate has not suffered appreciable damage. But it is
needless to pursue the argument of principle against a rule
which has been made at all tolerable for a civilized country

only by a series of exceptions (c) ;

of which presently.

The rule has even been

pushed to this extent, that thei Extension

death of a human being cannot be a cause of action in a in Osborn

v. Gilktt.
civil Court for a person not claiming through or represent-

ing the person killed, who in the case of an injury short off
death would have been entitled to sue. master can sue A
for injuries done to his servant by a wrongful act or
neglect, whereby the service of the servant is lost to the

master. But if
the injury causes the servant's death, it is
held that the master's right to compensation is gone (d).
We must say it is so held, as the decision has not been
overruled, or, that I know of, judicially questioned. But
the dissent of Lord Bramwell is
enough to throw doubt
upon it. The previous authorities are inconclusive, and
the reasoning of Lord Bramwell's (then Baron Bramwell's)
judgment I submit, unanswerable on principle. At all
is,

events " actio personalis moritur cum persona

"
will not
serve in this case. Here the person who dies is the servant;
his own cause of action dies with him, according to the

maxim, and his executors cannot sue for the benefit of his
estate (e). But the master's cause of action is altogether
a different one. Hedoes not represent or claim through
the servant ;
he sues in his own right, for another injury,
on another estimation of damage ;
the two actions are

(c) Cp. Bentham, Traites de (e) Under Lord Campbell's Act

Legislation, vol. ii. pt. 2, c. 10. (infra) they may have a right of
(d} Osborn v. OiUett (1873) L. R. suit for the benefit of certain per-
8 Ex. 88, 42 L. J. Ex. 53, diss. sons, not the estate as such.
Bramwell B,
 PERSONS AFFECTED BY TORTS.

one action is no bar to

independent, and recovery in the
the want of positive
recovery in the other. Nothing but
authority can be shown against the action being
maintain-
able. And if want of authority were fatal, more than one
modern addition to the resources of the Common Law
must have been rejected (/). It is alleged, indeed, that
" the
policy of the law refuses to recognize
the interest of
"
one person in the death of another (g) a reason which
would make insurance and leases for lives illegal.
life

Another and equally absurd reason sometimes given for

the rule is that the value of human life is too great to be

estimated in money : in other words, because the compen-

sation cannot be adequate there shall be no compensation

at all (h) . It is true that the action by a master for loss
on a wrong done to his servant
of service consequential

belongs to a somewhat archaic head of the law which has

now become almost anomalous perhaps it is not too ;

much to say that in our own time the Courts have dis-

couraged it. This we shall see in its due place. But that
is no sufficient reason for discouraging the action in a
particular case by straining the application of a rule in
itself absurd. Osborn v. Gillett stands in the book, and
we cannot actually say it is not law ;
but one would like
to see the point reconsidered by the Court of Appeal (').

(/) E. g. Gotten v. Wright, Ex. consider hereafter.

Ch. 8 E. & B. 647, 27 L. J. Q. B. (g} L. R. 8 Ex. at p. 90, arg.
215 (agent's implied warranty of (h) The Roman lawyers, how-
authority a doctrine introduced, ever, seem to have held a like view,
for the very purpose " Liberum
by the way, corpus nullam, recipit
of escaping the iniquitous effect of
1

aestimationem " D. 9. 3, de his

:

the maxim now in question, by qui effud., 5 cf. h. t. 7, and

1, ;

getting a cause of action in con- D. 9. 1, si quadrupes, 3. See

tract which could be maintained Grueber on the Lex Aquilia, p. 17.
against executors) Lumley v. Gye
;
(i) Cp. Mr. Horace Smith's re-

(1853) 2 E. & B. 216, 22 L. J. marks on this case (Smith on

Q. B. 463, which we shall have to Negligence, 2nd ed. 256).
 EXECUTORS. 59

"We now proceed to the exceptions. The first amend- Excep-

ment was made as long ago as 1330, by the statute statutes of
4 Ed. IIL^cJT, of which the English version runs thus E d IIL : . -.

giving
Item, whereas in times past executors have not had executors
actions for a trespass done to their testators, as of the suit for
goods and ofyittels of the same testators carried away in
their life, and so such trespasses have hitherto remained

unpunished it is enacted that the executors in such cases

;

shall have an action against the trespassers to recover

damages in like manner as they, whose executors they be,

should have had they were in life. if

The right was expressly extended to executors of execu-

tors by 25 Ed. III. st. 5, o. 5, and was construed to extend

to administrators T
(/). *_W"
to the person or to the testator's freehold, and it does not
include personal defamation, but it seems to extend to all

nf.hfir
Wrnngfi wTlP^p gpQ^'gl rlo-mago
^ fhp ppr^rvrml oafg.fo
s

is shown (7
).

Then by 3 & 4 Will. IY. c. 42 (A.D. 1833) actionable Of Will.

injuries to the real estate of any person committed within injuries to

six calendar months before his death be sued upon bv^ P r P ertv -

may
his personal representatives, for the benefit of his personal

estate, within one year after hisjdeath : and a man's estate

can be made liable, tjirojjgh his personal representatives,
for wrongs done by him within months before six calendar

his death
" to another in respect of his property, real or

personal." In this latter case the action must be brought

against the wrong-doer's representatives within six months
after they have entered on their office. Under this statute

(&) See note to Pinchon's case, Hatchard v. Mcge (1887) 18 Q. B.

9 Co. Rep. 89 a, vol. v. p. 161 in D. 771, 56 L. J. Q. B. 397 Oakey
;

ed. 1826. v. DaUon(1887) 35 Ch. D. 700, 56

(I) Twycross v. Grant (1878) 4 L. J. Ch. 823.
C. P. Div. 40, 45, 48 L. J. C. P. 1 ;
50 PERSONS AFFECTED BY TORTS.

the executor of a tenant for life has been held liable to the

remainderman for waste committed during the tenancy (m).

No ri ?ht statutes affects the case of a personal

n
Nothing in these
for which according to the maxim
f
fo rma ge injury causing death,
It has been attempted to main-
^n! there is no remedy at all.
of a per-
sequential fafa that damage to the personal estate by reason
&oi gonal such as expenses of medical attendance, and
injury,
loss of income through inability to work or attend to busi-
ness, will bring the case
within the statute of Edward III.
"
But it is held that where the cause of action is in sub-
stance an injury to the person," an action by personal
representatives cannot
be admitted on this ground: the
itself, not only its consequences,
must be
original wrong
an injury to property (n).

Lord Eailway middle of the present

accidents, towards the
fATT1T4.
century, brought the hardship of the common
bell's Act :
law rule into

r^'hta** prominence. A
man who was maimed or reduced to im-
created by of a railway
becility by the negligence company's servants
might recover heavy damages. If he died of his injuries,
or was killed on the spot, his family might be ruined, but
there was no remedy. This state of things brought about
the passing of Lord Campbell's Act (9 & 10 Yict. c. 93,
A.D. 1846), a statute extremely characteristic of English

legislation (o). Instead of abolishing the barbarous rule

(m) Woodhouse v. Walker (1880) C. P. 148, is doubted, but distin-

6 Q. B. Div. 404, 49 L. J. Q. B. guished as being on an action of
609. contract.

(n) fr^fiffff
* *3 E P flh-
(""">) (o) It appears to have been sug-
9 Q. B. D. 110, 51 L. J. Q. B. 453 ; gested by the law of Scotland,
cp. Leggott v. O. N. R. Co. (1876) which already gave a remedy see :

1 Q. B. D. 699, 45 L. J. Q. B. 557 ; Campbell on Negligence, 20 (2nd

the earlier case of Bradshaw v. edit.); and Slake v. Midland JR. Co.
Lancashire and Yorkshire B. Co. (1852) 18 Q. B. 93, 21 L. J. Q. B.
(1875) L. E. 10 C. P. 189, 44 L. J. 233 (in argument for plaintiff).
 LORD CAMPBELL'S ACT. 61

which was the root of the mischief complained of, it created

a new and anomalous kind of right and remedy by way of
It is entitled
" An Act for compensating the
exception.
"
Families of Persons killed by Accidents it confers a :

right of action on the personal representatives of a person

whose death has been caused by a wrongful act, neglect,
or default such that death had not ensued that person
if

might have maintained an action but the right conferred ;

is not for the benefit of the but " for the

personal estate,
benefit of the wife, husband, parent, and child ( p) of the
person whose death shall have been so caused." Damages
have to be assessed according to the injury resulting to the
parties for whose benefit the action is brought, and appor-
tioned between them by the j ury (q) . The nominal plaintiff
must deliver to the defendant particulars of those parties
and of the nature of the claim made on their behalf.
an amending Act of 1864, 27 & 28 Yict. c. 95, if
By
there is no personal representative of the person whose
death has been caused, or if no action is brought by per-
sonal representatives within six months, all or any of the

(p) "Parent" includes father Admiralty had no jurisdiction to

and mother, grandfather and grand- entertain claims under Lord Camp -
mother, stepfather and stepmother. bell's Act and after some doubt
;

" Child " includes son and this opinion has been confirmed by
daugh-
ter, grandson and granddaughter, the House of Lords Seward v. :

stepson and stepdaughter sect. 5.

: The Vera Cruz (1884) 10 App. Ca.
It does not include illegitimate 59, overruling The Franconia (1877)
children: Dickinson v. N. E. Co. . 2 P. D. 163.
(1863) 2 H. & C. 735, 33 L. J. Ex. (q) Where a claim of this kind
91 . There is no reason to doubt that is satisfied by payment to executors
it includes an unborn child. See The without an action being brought,
George and Richard (1871) L. K.. the Court will apportion the fund,
3 A. & E. 466, which, however, is in proceedings taken for that pur-
not of judicial authority on this pose in the Chancery Division, in
point, for a few months later (Smith like manner as a jury could have
v. Brown (1871) L. E. 6 Q. B. 729) done : Buhner v. Bulmer (1883) 25
the Court of Queen's Bench held Ch. D. 409.
in prohibition that the Court of
62 PERSONS AFFECTED BY TORTS.

persons for whose benefit the right of action is given by

Lord Campbell's Act, may sue in their own names (r).

Construe- The Act

principalinaccurately entitled to begin with
is
tion of
Lord " accidents might seem to include
. . .

(for to a lay reader

" accident " does not
belTs Act, inevitable accidents, and again,

include wilful wrongs, to which the Act does apply) nor ;

is this promise much bettered by the performance of its

enacting part. It is certain that the right of action, or at

any rate the right to compensation, given by the statute is
not the same which the person killed would have had if he
had lived to sue for his injuries. It is no answer to a
claim underLord Campbell's Act to show that the deceased
would not himself have sustained pecuniary loss. " The
statute . . .
gives to the personal representative a cause
of action beyond that which the deceased would have had
if he had survived, and based on a different principle " (s).
But " the statute does not in terms say on what principle
the action it gives is to be maintainable, nor on what prin-

ciple the damages are to be assessed and the only way ;

to ascertain what it does, is to show what it does not

mean"(tf). It has been decided that some appreciable

pecuniary loss to the beneficiaries (so we may conveniently
call the parties for whose benefit the right is created)

must be shown; they cannot maintain an action for

nominal damages (u) ;
nor recover what is called solatium
in respect of the bodily hurt and suffering of the deceased,
own "a
or their affliction (x) ; they must show reasonable

(r) Also, by sect. 2, "money p. 406.

paid into Court may be paid in (f) Pollock C. B. in Franklin v.
one sum, without regard to its S. E. It. Co. (1858) 3 H. & N. at
division into shares" (marginal p. 213.
note). (u) Duckworth v. Johnson (1859)

(4) Erie C. J., Pym v. G. N. 4 H. & N. 653, 29 L. J. Ex. 25.

E. Co. (1863) Ex. Ch. 4 B. & S. at (x) Blakev. Midland It. Co. (1852)
 LORD CAMPBELL'S ACT. 63

expectation of pecuniary benefit, as of right or otherwise," ^

had the deceased remained alive. But a legal right to
receive benefit from him need not be shown (y}. Thus,
the fact that a grown-up son has been in the constant
habit of making presents of money and other things to his

parents, or even has occasionally helped them in bad

times a ground ef expectation to be taken into ac-
(s), is

count in assessing the loss sustained. Funeral and mourn-

ing expenses, however, not being the loss of any benefit

that could have been had by the deceased person's continu-

ing in life, are not admissible (a).

The interests conferred by the Act on the several bene- Interests

of sur*
ficiaries are distinct. It is no answer to a claim on behalf
l ct '
of some of a man's children who are left poorer that all

his children, taken as an undivided class, have got the

whole of his property (&).

It is said that the Act does not transfer to representa- The statu
tives the right of action which the person killed would
have had, " but gives to the representative a totally new
"
right of action on different principles (c). Nevertheless
the cause of action is so far the same that if a person who
ultimately dies of injuries caused by wrongful act or neg-

18 Q. B. 93, 21 L. J. Q. B. 233. (ft Pum v. G. N. R. dn.

In Scotland it is otherwise: 1 4 B. S.~396, 32 L. J. Q. B. 377.
~$c

Macq. 752, n. The deceased had settled real estate

(y) Franklin v. 8. E. E. Co. (1858) on his eldest son, to whom other
3H. &N. 211. estates also passed as heir-at-law.

(z) Hetherington v. N. E. JR. Co., As to the measure of damages

9 Q. B. D. 160, 51 L. J. Q. B. where the deceased has insured his
495. own life for the direct benefit of the
Dalton v. S. E. E. Co. (1858)
(a) plaintiff, see Grand Trunk E. of
4 C. B. N. S. 296, 27 L. J. C. P. Canada v. Jennings (1888)13 App.
227, closely following Franklin v. Ca. 800, 58 L. J. P. C. 1.
S. E. E. Co.
(c) 18 Q. B. at p. 110.
64 PERSONS AFFECTED BY TORTS.

lect has accepted satisfaction for them in his lifetime, an

action under Lord Campbell's Act is not afterwards main-
tainable (d). For the injury sued on must, in the words
" such as
of the Act, be would, if death had not ensued,
have entitled the party injured to maintain an action and
"
recover damages in respect thereof and this must mean :

that he might immediately before his death have maintained

an action, which, if he had already recovered or accepted
compensation, he could not do.

Scottish In Scotland, as we have incidentally seen, the surviving

ricanlaws. kindred are entitled by the common law to compensation
in these cases, not only to the extent of actual damage but
by way of solatium. In the United States there exist

almost everywhere statutes generally similar to Lord

Campbell's Act; but they differ considerably in details
from that Act and from one another (e). The tendency
seems to be to confer on the survivors, both in legislation
and in judicial construction, larger rights than in England.

Bight to In one class of cases there is a right to recover against a

follow . . _ _

property wrong-doer notwithstanding the maxim of actio

s estate,
not so as to constitute a formal exception,
My
or
taken personalia, yet
con-
verted as
"When it comes to the point of direct conflict, the maxim
against has to prevail.
wronsf"
doer's As Lord Mansfield stated the rule, " where property is
acquired which benefits the testator, there an action for the
"
value of the property shall survive against the executor (/) .

Or, as Bowen L. J. has more fully expressed it, the cases

(d) Read v. G. E. It. Co. (1868) In Arkansas the doctrine of actio

L. R. 3 Q. B. 555, 37 L. J. Q. B. personalis, &c. appears to have been
278. wholly abrogated by statute: ib.

(e) Cooley on Torts (Chicago, s. 295.

1880) 262 ?.; Shearman & Eed- (/) Hambly v. Trott, 1 Cowp.
field on Negligence, ss. 293 syq. 375.
 FOLLOWING PROPERTY. 65

under head are those " in which property, or the pro-

this

ceeds or value of property, belonging to another, have been

appropriated by the deceased person and added to his own

estate or moneys." In such cases, inasmuch as the action
brought by the true owner, in whatever form, is in sub-
stance to recover property, the action does not die with the
" the
person, but property or the proceeds or value which,
in the lifetime of the wrong-doer, could have been recovered
"
from him, can be traced after his death to his assets
(by
" and recaptured by the
suing the personal representatives)
rightful owner there." But this rule is limited to the
recovery of specific acquisitions or their value. It does not
include the recovery of damages, as such, for a wrong,

though the wrong have increased the wrong-doer's

may
estate in the sense of being useful + n "hi nr
vi-ng

If A. wrongfully gets and carries away coal from a mine The rule
under B.'s land, and B. sues for the value of the coal and recovery

damages, and inquiries are directed, pending which A. dies,

B. is entitled as against A.'s estate to the value of the coal or its
value :

wrongfully taken, but not to damages for the use of the Phillips v.

passages through which the coal was carried out, nor for
the injury to the mines or the surface of the ground conse-

quent on A.'s workings (ti).

Again, A., a manufacturer, fouls a stream with refuse to *

the damage of B., a lower riparian owner B. sues A., and ;

pending the action, and more than six months after its
commencement (i) 9
A. dies. B. has no cause of action

(g] The technical rule was that PMUinut. Jlmfray (1883) 24

executors could not be sued in Ch. Div. 439, 454, 52 L. J. Ch.
respect of an act of their testator 833. The authorities "are fully
in his lifetime in any form of examined in the judgment of
action in which the plea was not Bowen and Cotton L. JJ.
guilty :
HamJifc^^^rolL\ Cowp. (t) 3 & 4 Will. IV. c. 42, p. 57,
375. above.

P.
66 PERSONS AFFECTED BY TORTS.

against A.'s representatives, for there has been no specific

benefit to A.'s estate, only a wrong for which B. might in
A.'s lifetime have recovered unliquidated damages (A*).
u
The like law holds of a director of a company who has
committed himself to false representations in the prospectus,

whereby persons have been induced to take shares, and

have acquired a right of suit against the issuers. If he
dies before or pending such a suit, his estate is not
liable (/). In short, this right against the executors or
administrators of a wrong-doer can be maintained only if
" some beneficial
there is property or value capable of being
"
measured, followed, and recovered (m). For the rest, the
George Jessel and of the Lords Justices
dicta of the late Sir
are such as to make it evident that the maxim which they
felt bound to enforce was far from commanding their

approval.

3. Liability for the Torts of Agents and Servants.

\/

Command Whoever commits a wrong is liable for it himself. It is

no excuse that he was acting, as an agent or servant, on
behalf and for the benefit of another (n). But that other
wrong. m ay well be also liable : and in many cases a man is held
answerable for wrongs not committed by himself. The
rules of general application in this kind are those con-

cerning the liability of a principal for his agent, and of a

master for his servant. Under certain conditions respon-

sibility goes farther, and a man may have to answer for

1

(k} Kirk v. Todd (1882) 21 Ch. and Kerr, 4 Macq. 424, 432. " For
Div. 484, 52 L. J. Ch. 224. the contract of agency or service
(1) Peek v. Gurnet/ (1873) L. E. 6 cannot impose any obligation on
H. L. at p. 392. the agent or servant to commit or
(m) 24 Ch. D. at p. 463. assist in the committing of fraud,"

(n) Cullen v. Thomson's Trustees or any other wrong.

 LIABILITY FOR OTHERS* ACTS. 67

'wrongs which, as regards the immediate cause of the

damage, are not those of either his agents or his servants.
Thus we have cases where a man is subject to a positive Cases of

duty, and is held liable for failure to perform it. Here, fbriti
the absolute character of the duty being once established,
the question is not by whose hand an unsuccessful
attempt
was made, whether that of the party himself, of his servant,
or of an "independent contractor
"
(0), but whether the

duty has been adequately performed or not. If it has,

there is nothing more to be considered, and liability, if any,
must be sought in some other quarter (p). If not, the non-

performance in itself, not the causes or conditions of non-

performance, is the ground of liability. Special duties

created by statute, as conditions attached to the grant of

exceptional rights or otherwise, afford the chief examples

of this kind. Here the liability attaches, irrespective of any
question of agency or personal negligence, if and when the
conditions imposed by the legislature are not satisfied (<?). *^

There occur likewise, though as an exception, duties of also duties

this kind imposed by the common law. Such are the duties O f war-

of common carriers, of owners of dangerous animals or other

things involving, by their nature or position, special risk of
harm to their neighbours ;
and such, to a limited extent,
is the duty of occupiers of fixed property to have it in

reasonably safe condition and repair, so far as that end

can be assured by the due care on the part not only of
themselves and their servants, but of all concerned.
The degrees of responsibility may be thus arranged,

beginning with the mildest :

(o) The distinction will be ex- L. J. Q. B. 21.

plained below. (?) See Gray v. Pullcn (1864) Ex.

(p) See Hyams v. Webster (1868) Ch. 6 B. & S. 970, 34 L. J. Q. B.

Ex. Ch. L. E. 4 Q. B. 138, 38 265.

F2
68 PERSONS AFFECTED BY TORTS.
7
(1)
For oneself and specifically authorized agents (this
holds always),

(ii)
For servants or agents generally (limited to course
ofemployment),
(iii)
For both servants and, independent contractors
(duties as to safe repair, &c.).

(iv) For everything but vis major (exceptional : some

cases of special risk, and anomalously, certain

public occupations).

Modes of
Apart from the cases of exceptional duty where the
is in the nature of insurance or warranty, a
forwrong- responsibility
ful acts,
man ma
y JJQ ii abie f or another's wrong
others.
(l) As having authorized or ratified that particular

wrong :

(2) As standing to -the other person in a relation making

him answerable for wrongs committed by that person in
virtue of their relation, though not specifically authorized.
The former head presents little or no difficulty. The
latter includes considerable difficulties of principle, and is

often complicated with troublesome questions of fact.

Command It scarce needs authority to show that a man is liable

cation. for wrongful acts which have been done according to his
express command or request, or which, having been done
on his account and for his he has adopted as his
benefit,

y
. own. " A trespasser may be not only he who does the act,
but who commands or procures it to be done . . . who aids
"
or assists in it . . . or who assents afterwards (r) . This
is not the because the person employed to do an
less so

unlawful act may be employed as an " independent con-

tractor," so that, supposing it lawful, the employer would

(r) De Grey C. J. in Barker v. Sraham (1773) 2 W. Bl. 866,

Bigelow, L. C. 235.
 MASTER'S RESPONSIBILITY. 69

not be liable for his negligence about doing it. gas A

a
company employed firm of contractors to break open a
public street, having therefore no lawful authority or ex-
cuse the thing contracted to be done being in itself a
;

public nuisance, the gas company was held liable for

injury caused to a foot-passenger by falling over some of
the earth and stones excavated and heaped up by the con-
tractors (). A
point of importance to be noted in thisi
connexion is that only such acts bind a principal by sub- 1
sequent ratification as were done at the time on the prin-f
cipal's behalf. What
done by the immediate actor on
is

his own account cannot be effectually adopted by another ;

neither can an act done in the name and on behalf of

Peter be ratified either for gain or for loss by John.
" Ratum
quis habere non potest, quod ipsius nomime non
est gestum" (t).

The more general rule governing the other and more Master
fl,Tid ftPT**

branch of the subject was expressed by Willes J. V ant.

difficult

in a judgment which may now be regarded as a classical

" answerable for every such y
The master is
authority. !

j wrong of the servant or agent as is committed in the

course of the service and for the master's benefit, though no
"
(express command or privity of the master be proved (u).

No reason for the rule, at any rate no satisfying one, is Reason of

commonly given in our books. Its importance belongs ter'slia-

l lity *

altogether to the modern law, and it does not seem to be

(s)
Ellis v. Sheffield Gas Consumers (u) Barwick v. English Joint
Co. (1853) 2 E. & B. 767, 23 L. J. S^ocJc ank (1867) Ex. Ch. L. K.
Q. B. 42. 2 Ex. 259, 265, 36 L. J. Ex. 147.

(t) Wilson v. Tumman (1843) 6 The point of the decision is that

M. & G. 236 ;
and Serjeant Mann- fraud is herein on the same footing
ing's note, ib. 239. as other wrongs : of which in due
course.
70 PERSONS AFFECTED BY TORTS.

illustrated by any early authority (#). Blackstone (i. 417)

isshort in his statement, and has no other reason to give
" command.'
7
than the fiction of an implied It is cur-

rently said, Respondeat superior; which is a dogmatic

statement, not an explanation. It is also said, Qu-i facit

per alium facit per se ; but this is in terms applicable only

to authorized acts, not to acts that, although done by the

"
agent or servant in the course of the service," are speci-
fically unauthorized or even forbidden. Again, it is said

that a master ought to be careful in choosing fit servants ;

but if this were the reason, a master could discharge him-

selfby showing that the servant for whose wrong he is
sued was chosen by him with due care, and was in fact

generally well conducted and competent which is cer- :

tainly not the law.

A better account was given by Chief Justice Shaw of
Massachusetts. " This he " is
rule," said, obviously
founded on the great principle of social duty, that every

man in the management whether by

of his own affairs,
himself or or servants, shall so conduct
by his agents
them as not to injure another and if he does not, and ;

another thereby sustains damage, he shall answer for

"
it (y] . This indeed, somewhat too widely expressed,
is,

for it does not in terms limit the responsibility to cases

where at least negligence is proved. But no reader is

likely to suppose that, as a general rule, either the servant

(x) Joseph. Brown Q.C. in evi- on the subject, well says: "La
dence before Select Committee on responsabilite du fait d'autrui n'est

Employers' Liability, 1876, p. 38 ; pas une fiction inventee par la loi

Brett L. J., 1877, p. 114. positive. C'est une exigence de
(y) Farwell v. Boston and Wor- 1'ordre social:" De la Responsa-
cester Railroad Corporation (1842) 4 bilite et de la Garantie, p. 124.
Met. 49, and Bigelow L. C. 688. Paley (Mor. Phil. bk. 3, c. 11)
The judgment is also reprinted in found it difficult to refer the rule
3 Macq. 316. So, too, M. Sainc- to any principle of natural justice,
telette, a recent Continental writer
 MASTER AND SERVANT. 71

or the master can be liable where there is no default at

all. And
the true principle is otherwise clearly enounced.
I am answerable for the wrongs of my servant or agent, ^ J
not because he is authorized by me or personally re-

presents me, but because he is about my affairs, and I

am bound to see that my affairs are conducted with due

regard to the safety of others.

Some time later the rule was put by Lord Cranworth
in a not dissimilar form the master " is considered as
:

bound to guarantee third persons against all hurt arising

from the carelessness of himself or of those acting under

his orders in the course of his business" (*).

The statement of Willes J. that the master "has put

"
the agent in his place to do that class of acts is also to

be noted and remembered as a guide in many of the

questions that arise. A just view seems to
be taken,
though artificially and obscurely expressed, in one of the
earliest reported cases on this branch of the law
" It :

shall be intended that the servant had authority from his

"
master, it being for his master's benefit (a).

The rule, then (on whatever reason founded), being that Questions

a master is liable for the acts, neglects, and defaults of 8 idered

terein -
his servants in the course of the service, we have to define
further
1. Who is a servant.
2. What acts are deemed to be in the course of service.

3. How the rule the person injured

is affected when is

himself a servant of the same master.

1. As to the first point, it is quite possible to do work Who is a

for a man, in the popular sense, and even to be his agent responsi-
f or some purposes, without being his servant. The relation goes
kikjy

(z) Barton's Hill Coal Go. v. Held (a) Tuberville v. Stampe (end of
(1858) 3 Macq. 266, 283. 17th century) 1 Ld. Baym. 264.
 PERSONS AFFECTED BY TORTS.

and con- of master only between persons of whom

and servant exists
trol.
the one has the order and control of the work done by the
other. A master is one who not only prescribes to the
workman the end of his work, but directs, or at any
moment may direct the means also, or, as it has been put,
" retains the "
power of controlling the work (b) ; and he
who does work on those terms is in law a servant for
[whose acts, neglects,
and defaults, to the extent to be
specified, the master is liable. An
independent contractor
is one who undertakes to produce a given result, but so
that in the actual execution of the work he is not under
the order or control of the person for whom he does it,
and may use his own discretion in things not specified
beforehand. For the acts or omissions of such a one
about the performance of his undertaking his employer
is not liable to strangers, no more than the buyer of goods

is liable to a person who may be injured by the careless

handling of them by the seller or his men in the course

of delivery. If the contract, for example,
is to build a
"
wall, and the builder has a right to say to the employer,
1
1 will agree to do it, but I shall do it after my own
fashion I shall begin the wall at this end, and not at
;

'
the other there the relation of master and servant does
;

not exist, and the employer is not liable " (c). " In

ascertaining who is liable for the act of a wrong-doer, you

must look wrong-doer himself or to the first person
to the

in the ascending line who is the employer and has control

over the work. You cannot go further back and make the
"
employer of that person liable (d). He who controls the

(b) Crompton J., Sadler v. Hen- of importance by a great master of

lock (1855) 4 E. & B. 570, 578, 24 the common law.
L. J. Q. B. 138, 141. (d} Willes J., Murray v. Currie

(c) Bramwell L. J., Emp. L. (1870) L. E. 6 C. P. 24, 27, 40

1877, p. 58. An extra-judicial L. J. C. P. 26.
statement, but made on an occasion
 MASTER AND SERVANT. 73

work is answerable for the workman ;

the remoter em-

ployer who does not control it is not answerable. This

distinction is thoroughly settled in our law ;
the difficulties
that may applying it are difficulties of ascertaining
arise in

the facts (e). It may be a nice question whether a man

has let out the whole of a given work to an " independent
contractor," or reserved so much power of control as to
leave him answerable for what is done (/).

must be remembered that the remoter employer, if at

It Specific

any point he does interfere and assume specific control, tion of

c
renders himself answerable, not as master, but as principal.
He makes himself "dominus pro tempore." Thus the
hirer of a carriage, driven by a coachman who is not the
hirer's servant but the letter's, is not, generally speaking,
liable for harm done by the driver's negligence (g) . But
if he orders, or by words or conduct at the time sanctions,
a specific act of rash or careless driving, he may well be

(e) One comparatively early case, Bench in Taylor v. Greenhalgh (1874)

Bush v. Steinman, 1 B. & P. 404, L. K. 9 Q. B. 487, 43 L. J. Q. B.
disregards the rule ;
but that case 168.
has been repeatedly commented on (g) Even if the driver was selected
with disapproval, and is not now by himself :
Quarman v. Burnett
law. See the modern authorities (1840) 6 M. & W.
499. So where a
well reviewed in Hillard v. Richard- vessel is hired with its crew :
Dalyell
son (Sup. Court, Mass. 1855) 3 v. Tyrer (1858) 8 E. B. & E. 899, 28
Gray 349 ;
and in Bigelow L. C. L. J. Q. B. 52. So where a con-
Exactly the same distinction ap- and drivers to
tractor finds horses

pears to be taken under the Code draw watering-carts for a munici-

Napoleon in fixing the limits within pal corporation, the driver of such
which the very wide language of a cart is not the servant of the cor-
Art. 1384 is to be applied: Sainc- poration : Jones v.
Corporation of
telette, op. cit. 127. Liverpool (1885) 14 Q. B. D. 890,
(/) Pendlebury v.Greenhalgh (1875) 54 L. J. Q. B. 345 cp. Little v.
;

1 Q. B. Div. 36, 45 L. J. Q. B. 3, Hackett (1886) 116 U.S. at pp.

differing from the view of the same 3713, 377.

facts taken by the Court of Queen's
74 PERSONS AFFECTED BY TORTS.

liable (h). Bather slight evidence of personal interference

has been allowed as sufficient in this class of cases (i)
.

Tempo- Q ne material result of this principle is that a person who

rarytrans-
fer of ishabitually the servant of A. may become, for a certain
time and for the purpose of certain work, the servant of B. ;

and this although the hand to pay him is still A.'s. The
owner of a vessel employs a stevedore to unload the cargo.
The stevedore employs his own labourers; among other

men, some of the ship's crew work for him by arrangement

with the master, being like the others paid by the steve-
dore and under his orders. In the work of unloading
these men are the servants of the stevedore, not of the
owner (k) ..

Owners of a colliery, after partly sinking a shaft, agree

with a contractor to finish the work for them, on the terms,

among others, that engine power and engineers to work the

engine are to be provided by the owners. The engine that
has been used in excavating the shaft is handed over

accordingly to the contractor the same engineer remains

:

in charge of it, and is still paid by the owners, but is under

the orders of the contractor. During the continuance of
the work on these terms the engineer is the servant not of
the colliery owners but of the contractor (I).

"Power of "
Itproper to add that the powjer-of controlling the
is
"
ling the work which is the legal criterion of the relation of a

McLaughlin
(h) v. Pryor (1842) pp. 893-4, 54 L. J. Q. B. 345.
4 M. & G. 48. (&) Murray v. Ourrie (1870) L. B.
(i)
Ib.
Burgess v. Gray (1845) 1
;
6 C. P. 24, 40 L. J. C. P. 26.
C. B. 578, 14 L. J. C. P. 184. It (I) frffrfrr m-***tfr HTm^fYTfir
is difficult in either case to see proof Co. (1877) 2 C. P. Div. 205, 46
of more than adoption or acquies- L. J. C. P. 283. Cp. Johnson v.
cence. Cp. Jones v. Corporation of Lindsay (1889) 23 Q. B. Div. 508,
Liverpool (1885) 14 Q. B. D. at 58 L. J. Q. B. 581.
 COURSE OF EMPLOYMENT. 75

master to a servant does not necessarily mean a present "ex -

(work
and physical ability. Shipowners are answerable for the j
acts of the master, though done under circumstances in
which it is impossible to communicate with the owners
(ni) .

\It isenough that the servant is bound to obey the master's

if and when communicated to him. The
[directions legal
power of control is to actual supervision what in the
doctrine of possession animus domini is to physical deten-
tion. But this much is needful therefore a compulsory
:

pilot, who is in charge of the vessel independently of the

owner's will, and, so far from being bound to obey the
owner's or master's orders, supersedes the master for the
time being, is not the owner's servant, and the statutory

exemption of the owner from liability for such a pilot's acts

is but in affirmance of the common law
(n).

2. Next we have to see what is meant by the course of What is in

employment. The injury in respect of which a

service or
employ-
ment>
master becomes subject to this kind of vicarious liability
may be caused in the following ways :

(a) It may be the natural consequence of something

being done by a servant with ordinary care in

execution of the master's specific orders.

(b) It may be due to the servant's want of care in car-

rying on the work or business in which he is

employed. This is the commonest case.

(c) The servant's wrong may consist in excess or mis-

taken execution of a lawful authority.

(d) Or it may even be a wilful wrong, such as assault,

(m) See Maude and Pollock, Mer- the other hand there may be a
chant Shipping, i. 158, 4th ed. statutory relation which does re-
(n) Merchant Shipping Act, 1854,
semble that of master and servant
8.388; The Ifalley (1868) L. R. 2 for the purpose of creating a duty to
P. C. at p. 201. And see Marsden the public: King v. London Improved
on Collisions at Sea, ch. 5. On Cab Co. (1889) 23 Q. B. Div. 281.
76 PERSONS AFFECTED BY TOKTS.

provided the act is done on the master's behalf

and with the intention of serving his purposes.
Let us take these heads in order.

Execution Here the servant is the master's agent in a proper

(a)
orders. sense, and the master is liable for that which he has truly,
not by the fiction of a legal maxim, commanded to be
done. He is also liable for the natural consequences of

his orders, even though he wished to avoid them, and

desired his servant to avoid them. Thus, in Gregory v.
Piper (o), a right of way was disputed between adjacent
occupiers, and the one who resisted the claim ordered a

labourer to lay down rubbish to obstruct the way, but so

as not to touch the other's wall. The labourer executed
the orders as nearly as he could, and laid the rubbish some
"
distance from the wall, but it soon shingled down" and
ran against the wall, and in fact could not by any ordinary
care have been prevented from doing so. For this the

employer was held to answer as for a trespass which he

had authorized. This a matter of general principle, not
is

of any special kind of liability. No man can authorize a

thing and at the same time affect to disavow its natural
consequences no more than he can disclaim responsibility
;

for the natural consequences of what he does himself.

Negli- (b) Then comes the case of the servant's negligence in

conduct of ^ne performance of his duty, or rather while he is about

^ s mas^ er>s business. What constitutes negligence does
not just now concern us ;
but it must be established that
the servant a wrong-doer, and liable to the plaintiff,
is

before any question of the master's liability can be enter-

tained. Assuming this to be made out, the question may

(o)
9 B. & C. 591 (1829).
 COURSE OF EMPLOYMENT. ft

occur whether the servant was in truth on his master's

business at the time, or engaged on some pursuit of his
" If the
own. In the latter case the master is not liable.
servant, instead of doing that which he
employed to do, is

does something which he is not employed to do at all, the

master cannot he said to do it by his servant, and therefore
isnot responsible for the negligence of his servant in doing
it" (p). For example "If a servant driving a carriage,
:

in order to effect some purpose of his own, wantonly strike

the horses of another person, . . . the master will not be
liable. But if, in order to perform his master's orders, he
strikesbut injudiciously, and in order to extricate himself
from a difficulty, that will be negligent and careless con-
duct, for which the master will be liable, being an act done
in pursuance of the servant's employment" (q).

"Whether the servant is really bent on his master's affairs Departure

or not a question of fact, but a question which may be

is tion from
troublesome. Distinctions are suggested by some of the

reported cases which are almost too fine to be acceptable.

The principle, however, is intelligible and rational. Not
every deviation of the servant from the strict execution of
duty, nor every disregard of particular instructions, will
be such an interruption of the course of employment as to
determine or suspend the master's responsibility. But
where there not merely deviation, but a total departure
is

from the course of the master's business, so that the

servant may be said to be "on a frolic of his own" (r),

the master is no longer answerable for the servant's con-

duct. Two modern cases of the same class and period,

(p] Maule J., Mitchell v. Crass- (r) Parke B., Joel v. Morison
welkr (1853) 13 C. B. 237, 22 L. J. (1834) 6 C. &
P. 503: a nisi prius
C. P. 100. case, but often cited with approval ;

(q) Croft v. Alison (1821)

4 B. & see Burns v. Poulsom (1873) L. K. 8
A. 590. C. P. at p. 567, 42 L. J. C. P. 302.
78 PERSONS AFFECTED BY TOUTS.

one on either side of the line, will illustrate this dis-

tinction.

Whatman Jn Whatman v. Pearson (s) 9

a carter who was employed
by a having the allowance of an hour's time for
contractor,
dinner in his day's work, but also having orders not to
leave his horse and cart, or the place where he was

employed, happened to live hard by. Contrary to his

instructions, he went home to dinner, and left the horse
and unattended at his door; the horse ran away and
cart

did damage to the plaintiff's railings. jury was held A

warranted in finding that the carman was throughout in
the course of his employment as the contractor's servant
"
acting within the general scope of his authority to con-
"
duct the horse and cart during the day (t).

Storey \. In Storey v. Ashton (u) 9 a carman was returning to his

Asliton.
employer's with returned empties.
office clerk of the A
same employer's who was with him induced him, when he
was near home, to turn off in another direction to call at
a house and pick up something for the clerk. While the
carman was driving in this direction he ran over the
plaintiff. The Court held that if the carman " had been

merely going a roundabout way home, the master would

have been liable but he had started on an entirely new
;

journey on his own or his fellow-servant's account, and

could not in any way be said to be carrying out his
master's employment" (a). More lately it has been held

(s)
L. R. 3 C. P. 422 (1868). journey, which had nothing at all

Byles J. at p. 425.
(t} to with his employment "
do :

() (1869) L. R. 4 Q. B. 476, 38 Cockburn C. J. " Every step he

L. J. Q. B. 223. Mitchell v. Crass- drove was away from his duty: "
weller, cited on the foregoing page, Mellor J., ibid. But it could have
was a very similar case. made no difference if the accident
(x) Lush J. at p. 480. It was had happened as he was coming
' '
an entirely new and independent back. See the next case.
 COURSE OF EMPLOYMENT. 79

that the servant begins using his master's property for

if

purposes of his own, the fact that by way of afterthought

he does something for his master's purposes also is not
" "
necessarily such a re-entering upon his ordinary duties
as to make the master answerable for him. journey A
"
undertaken on the servant's own account cannot the by
mere fact of the man making a pretence of duty by

stopping on his way be converted into a journey made in

"
the course of his employment (y).

The following is a curious example. A carpenter was Williams

v '

employed by A. with B.'s permission to work for him in a

shed belonging to B. This carpenter set fire to the shed
in lighting his pipe with a shaving. His act, though
negligent, having nothing to do with the purpose of his
employment, A. was not liable to B. (z). It does not seem
difficult topronounce that lighting a pipe is not in the
course of a carpenter's employment but the case was one;

of difficulty as being complicated by the argument that A.,-

having obtained a gratuitous loan of the shed for his own
purposes, was answerable, without regard to the relation of
master and servant, for the conduct of persons using it.
This failed for want of anything to show that A. had

acquired the exclusive use or control of the shed. Apart

from this, the facts come very near to the case which has
been suggested, but not dealt with by the Courts in any
reported decision, of a miner opening his safety-lamp to
get a light for his pipe, and thereby causing an explosion :

where "it seems clear that the employer would not be

held liable '.
(y) Rayner v. Mitchell (1877) 2 Ex. 297 diss. Mellor and Black-
;

C. P. D. 357. burn JJ.

(z) Williams v. Jones (1865) Ex. (a) E. S. Wright, Emp. L. 1876,
Ch. 3 H. & C. 256, 602, 33 L. J. p. 47.
80 PERSONS AFFECTED BY TORTS.

Excess or
(c) Another kind wrong which may be done by a
of

execution servant in his master's business, and so as to make the

master liable, is the excessive or erroneous execution of a
ritv
lawful authority. To establish a right of action against
the master in such a case it must be shown that (a) the
intended to do on behalf of his master something
\lservant

of a kind which he was in fact authorized to do (/3)

the ;

done in a proper manner, or under the circumstances

act, if

erroneously supposed by the servant to exist, would have

been lawful.
The master chargeable only for acts of an authorized
is

class which in the particular instance are wrongful by

reason of excess or mistake on the servant's part. For

acts which he has neither authorized in kind nor sanctioned

in particular he is not chargeable.

Interfer- Most of the cases on this head have arisen out of acts of
ence with
passengers railway servants on behalf 01 the companies. porter A
Uc S'
&cf whose duty is, among other things, to see that passengers
do not get into wrong trains or carriages (but not to
remove them from a wrong carriage) asks a passenger who ,

has just taken his seat where he is going. The passenger

" To Macclesfield." The
answers, thinking the porter,

passenger is in the wrong train, pulls him out; but the

train was in fact going to Macclesfield, and the passenger
was right. On these facts a jury may well find that the

porter was acting within his general authority so as to

make the company liable (b) . Here are both error and
excess in the servant's action : error in supposing facts to
exist which makeproper to use his authority (namely,
it

that the passenger has got into the wrong train) excess ;

(b) Bayley v. Manchester, Sheffield, 278, in Ex. Ch. 8 C. P. 148, 42

and Lincolnshire R. Co. (1872-3) L. J. C. P. 78.
L. E. 7 C. P. 415, 41 L. J. C. P.
 EXCESS OF AUTHORITY BY SERVANT. 81

in the manner of executing his authority, even had the

facts been as he supposed. But they do not exclude the
master's liability.
" A person who puts another in his place to do a class
of acts in his absence necessarily leaveshim to determine,
according to the circumstances that arise, when an act of
that class is to be done, and trusts him for the manner in
which it is done ;
and consequently he
held responsible is

for the wrong of the person so intrusted either in the

manner of doing such an act, or in doing such an act
under circumstances in which it ought not to have been
done; provided that what was done was done, not from
any caprice of the servant, but in the course of the em-
ployment" (c).

fyyjnwtii v (rreen irwrf- (r/) is another illustrative case of

this class. The guard of an omnibus removed a passenger
whom he thought it proper to remove as being drunken
and offensive to the other passengers, and in so doing used

excessive violence. Even if he were altogether mistaken

as to the conduct and condition
passenger thus of the
" The
removed, the owner of the omnibus was answerable.
master, by giving the guard authority to remove offensive
passengers, necessarily gave him authority to determine

whether any passenger had misconducted himself."

Another kind of case under this head is where a servant Arrest of

takes on himself to arrest a supposed offender on his offenders.

employer's behalf. Here it must be shown, both that

arrest would have been justified if the offence had really
been committed by the party arrested, and that to make
such an arrest was within the employment of the servant

(c)
Per Willes J., Sayley v. Man- C. P. 278.

Chester, Sheffield, and Lincolnshire (d] 1 H. & N. 355, 30 L. J. Ex.

JR. Co., L. R. 7 C. P. 415, 41 L. J. 189, 327, Ex. Ch. (1861).

P.
82 PERSONS AFFECTED BY TORTS.

" where
who made it. As to the latter point, however,
there a necessity to have a person on the spot to act on
is

an emergency, and to determine whether certain things

shall or shall notbe done, the fact that there is a person
on the spot who is acting as if he had express authority is
prima facie evidence that he had authority (e) Railway .

companies have accordingly been held liable for wrongful

arrests made by their inspectors or other officers as for

attempted frauds on the company punishable under statutes

or authorized by-laws, and the like (/).

Act wholly But the master is not answerable if the servant takes on

authority, himself, though in good faith and meaning to further the

master not
mas e r's interest, that which the master has no right to do
-t

even if the facts were as the servant thinks them to be : as

where a station-master arrested a passenger for refusing to

pay for the carriage of a horse, a thing outside the com-
pany's powers (g) . The same rule holds if the particular
servant's act is plainly beyond his authority, as where the
officer in charge of a railway station arrests a man on sus-

picion of stealing the company's goods, an act which is not

part of the company's general business, nor for their
apparent benefit (h) In a case not clear on the face of it,
.

as where a bank manager commences a prosecution, which

turns out to be groundless, for a supposed theft of the
bank's property a matter not within the ordinary routine
of banking business, but which might in the particular
case be within the manager's authority the extent of the

(e)
Blackburn J., Moore v. Metrop. (1867) L. B. 2 Q. B. 534, 36 L. J.
E. Co. (1872) L. B. 8 Q. B. 36, 39, Q. B. 294.
42 L. J. Q. B. 23. (h) Edivards v. L. $ N. W. E. Co.

(/) Ib., following ffqffv..JVr (1870) L. B. 5 C. P. 445, 39 L. J.

E. Co. (1861) 3 E. & E. 672, 30 C. P. 241 cp. Allen v. L. $ S. W.
;

L. J. Q. B. 148. E. Co. (1870) L. B. 6 Q. B. 65, 40

(g) Poulton v. L. $ 8. W. E. Co. L. J. Q. B. 55.
 UNAUTHORIZED ACTS OF SERVANT. 83

servant's authority a question of fact (i). Much, must

is

depend on the nature of the matter in which the authority

is given.Thus an agent entrusted with general and ample
powers for the management of a farm has been held to be
clearly outside the scope of his authority in entering on
the adjacent owner's land on the other side of a boundary
ditch in order to cut underwood which was choking the
ditchand hindering the drainage from the farm. If he
had done something on his employer's own land which
was an actionable injury to adjacent land, the employer
might have been liable. But it was thought unwarrant-
able to say " that an agent entrusted with authority to be
exercised over a particular piece of land has authority to
commit a trespass on other land" (k).

(d) Lastly, a master may be liable even for wilful and Wilful
S SeS '
deliberatewrongs committed by the servant, provided they &o. ?or
master s
be done on the master's account and for his *
purposes
f and :

purposes.
this, no less than in other
although the servant's
cases,
conduct is of a kind actually forbidden by the master.
Sometimes it has been said that a master is not liable for
the "wilful and malicious" wrong of his servant. If
" "
malicious" means committed exclusively for the ser-
vant's private ends," or " malice" means " private spite" (/),
this is a correct statement otherwise it is contrary to
;

modern authority. The question is not what was the,,,

nature of the act in itself, but whether the servant intended

to act in the master's interest.
This was decided by the Exchequer Chamber in Limpus
v. London General Omnibus Company (m), where the de-

(t)
Bank of New South Wales v. L. J. C. P. 575.
Owston (1879) (J. C.) 4 App. Ca. (0 See per Blackburn J., 1 H. &
270, 48 L. J. P. C. 25. C. 543.

(K) Bolingbroke v. Swindon Local (m) 1 H. & C. 526, 32 L. J. Ex. 34

Board (1874) L. R. 9 C. P. 575, 43 (1862). This and Seymour v. Green-
G2
81 PERSONS AFFECTED BY TORTS.

fendant company's driver had obstructed the plaintiff's

omnibus by pulling across the road in front of it, and
caused it to upset. He had printed instructions not to

race with or obstruct other omnibuses. Martin B. directed

the jury, in effect, that if the driver acted in the way of

his employment and in the supposed interest of his

employers as against a rival in their business, the

employers were answerable for his conduct, but they were

not answerable if he acted only for some purpose of his
own and this was approved by the Court (ri) above. The
:

" was
driver employed not only to drive the omnibus, but
also to get as much money as he could for his master, and

to do it in rivalry with other omnibuses on the road. The

act of driving as he did is not inconsistent with his em-

ployment, when explained by his desire to get before the

" the
other omnibus." As to the company's instructions,
law not so futile as to allow a master, by giving secret
is

instructions to his servant, to discharge himself from

liability "(o).

Fraud of That an employer is liable for frauds of his servant

servant* committed without authority, but in the course of the

service and for the employer's purposes, was established
with more difficulty ;
for it seemed harsh to impute deceit
to a man personally innocent of it, or (as in the decisive

cases) to a corporation, which, not being a natural person,

is incapable of personal wrong-doing (p). But when it was
wood (above) overrule M'Manus v. corporation as deceiving (or being
CricTcett, 1 East 106. deceived) than as having a con-
(n] Williams, Crompton, Willes, senting mind. In no case can a
Byles, Blackburn JJ., diss. Wight- corporation be invested with either
man J. rights or duties except through
(o) Willes J. 1 H. & C. at p. 539. natural persons who are its Agents.
(p) This particular difficulty is Cp. British Mutual Banking Co. v.
fallacious. It is in truth neither Charnwood Forest Ry. Co. (1887) 18
more nor less easy to think of a Q. B. Div. 714, 56 L. J. Q. B. 449.
 FRAUD OF SERVANT. 85

fully realized that in all these cases the master's liability

is imposed
by the policy of the law without regard to per-
sonal default on his part, so that his express command or

privity need not be shown, was a necessary consequence it

that fraud should be on the same

footing as any other
wrong (q) So the matter is handled in our leading
.

authority, the judgment of the Exchequer Chamber de-

livered by Willes J. in Harwich v. English Joint Slock
Bank.
"
With
respect to the question, whether a principal is
^
answerable for the act of his agent in the course of his
master's business, and for his master's benefit, no sensible
distinction can be drawn between the case of fraud and the
"
case of any other wrong (r).
This has been more than once fully approved in the
Privy Council and may now
be taken, notwithstand^
(s),

ing certain appearances of conflict (^), to have the ap-

proval of the House of Lords also (u). What has been
said to the contrary was either extra-judicial, as going
beyond the ratio dccidendi of the House, or is to be
accepted as limited to the particular case where a member
of an incorporated company, not having ceased to be a
member, seeks to charge the company with the fraud of its
directors or other agents in inducing him to join it (a?).

(q) It makes no difference if the (u) Houldsworth v. City of Glas-

fraud includes a forgery: Shaw v. gow Bank (1880) 5 App. Ca. 317.
Port Philip Gold Mining Co. (1884) (x) Ib., Lord Selborne at p. 326,
13 Q. B. D. 103. Lord Hatherley at p. 331 ;
Lord
(r) (1867) L. R. 2 Ex. at p. 265. Blackburn's language at p. 339 is
(s) Mackay v. Commercial Bank more cautious, perhaps for the very
of New Brunswick (1874) L. "R. 5 reason that he was a party to the
P. C. 412, 43 L. J. P. C. 31 Swire ;
decision of Barwick v. English
v. Francis (1877) 3 App. Ca. 106, Joint Stock Bank. Shortly, the
47 L. J. P. C. 18. shareholder is in this dilemma :

(t)
Addie v. Western Bank of while he is a member of the com-
Scotland (1867) L. R. 1 Sc. & D. pany, he is damnified by the alleged
145, dicta at pp. 158, 166, 167. deceit, if at all, solely in that he ig
86 PERSONS AFFECTED BY TORTS.

But conversely a false and fraudulent statement of a

servant made for ends of his own, though in answer to a
to answer on his
question of a kind he was authorized
master's behalf, will not render the master liable in an
action for deceit (y).
The leading case of Mersey Dock Company v. Gibbs (z)

may be referred to in this connexion, as illustrating

also

the general principles according to which liabilities are

imposed on corporations and public bodies.

Liability There is abundant authority in partnership law to show

fraud of a that a firm answerable for fraudulent misappropriation
is

partner.
^ funds, and the like, committed by one of the partners
in the course of the firm's business and within the scope of
his usual authority, though no benefit be derived therefrom
by the other partners. But, agreeably to the principles
above stated, the firm is not liable if the transaction under-
taken by the defaulting partner is outside the course of
for example, one of a firm
partnership business. Where,
of solicitors receives be placed in a specified
money to

investment, the firm must answer for his application of it,

but not, as a rule, if he receives it with general instructions
to invest it for the client at his own discretion (a). Again,
the firm is not liable if the facts show that exclusive credit

liable as a shareholder to contribute remedy as against the company:

to the company's debts this liabi- :
though the fraudulent agent re-
lity being of the essence of a share- mains personally liable,
holder's claiming com-
position, (y) British Mutual Banking Co.

pensation from the company for it v. Charmcood Forest Ey. Co. (1887)

involves him in a new liability to 18 Q. B. Div. 714, 56 L. J. Q. B.

contribute to that compensation 449.

itself, which is an absurd circuity. (2) L. B. 1 H. L. 93 (1864-6).

But if his liability as a shareholder (a) Cp. Blair v. Bromley, 2 Ph.
has ceased, he is no longer damni- 354, and Gleather v. Twisden (1883)
fied. Therefore restitution only 24 Ch. D. 731, with Harman v.

(by rescission of his contract), not Johnson, 2 E. & B. 61, 22 L. J.

compensation, is the shareholder's Q. B. 297.
 PARTNERS " COMMON EMPLOYMENT."
: 87

was given to the actual wrong- doer (). In all these cases
the wrong is evidently wilful. In all or most of them,
however, it is at the same time a breach of contract or
trust. And seems to be on this ground that the firm
it

is held liable even when the defaulting partner, though

professing to act on behalf of the firm, misapplies funds or

securities merely for his own separate gain. The reasons
given are not always free from admixture of the Protean
doctrine of " making representations good," which is now,
I venture to think, exploded (c).

3. There remains to be considered the modification of a Injuries to

master's liability for the wrongful act, neglect, or default by fault of

of his servant when the person injured is himself in and

about the same master's service. It is a topic far from
clear in principle; the Employers' Liability Act, 1880,
has obscurely indicated a sort of counter principle, and in-
troduced a number of minute and empirical exceptions,
or rather limitations of the exceptional rule in question.
That rule, as it stood before the Act of 1880, is that a Common
master not liable to his servant for injury received from master's
is
imnmmtr -

any ordinary risk of or incident to the service, including

acts or defaults of any other person employed in the same

service.Our law can show no more curious instance of a

rapid modern development. The first evidence of any
such rule is in Priestley v. Fowler (d), decided in 1837,
which proceeds on the theory (if on any definite theory)
that the master "cannot be bound to take more care of

(b} ExparteEyre.l'E'h. 227. See p. 473, 51 L. J. Q. B. 737.

more " M. & W. 1. All the case
illustrations in my Digest (d) 3
of the Law of Partnership," art. 24. actually decided was that a master
(c}
I have discussed it in Appen- does not warrant to his servant the
dix K. to "Principles of Contract," sufficiency and safety of a carriage
5th ed. p. 707. See now Maddison in which he sends him out.
v. Atderson (1883) 8 App. Ca. at
88 PERSONS AFFECTED BY TORTS.

the servant than he reasonahly he expected to do of

may
himself ;" that a servant has hetter opportunities than his
master of watching and controlling the conduct of his
fellow-servants and that a contrary doctrine would lead
;

to intolerable inconvenience, and encourage servants to he

negligent. According to this there would he a sort of
presumption that the servant suffered to some extent by
want of diligence on his own part. But it is needless to

pursue this reasoning for the like result was a few years
;

afterwards arrived at by Chief Justice Shaw of Massa-

chusetts by another way, and in a judgment which is the
fountain-head of all the later decisions (e ) . The accepted
Keason doctrine is Strangers can hold the master
to this effect.

theater liable for the negligence of a servant about his business.

But in the case where the person injured is himself a

servant in the same business he not in the same position
is

as a stranger. He has of his free will entered into the

business and made it his own. He
cannot say to the
master, You shall so conduct your business as not to injure
me by want of due care and caution therein. For he has
agreed with the master to serve in that business, and his
claims on the master depend on the contract of service.

Why should be an implied term of that contract, not

it

being an express one, that the master shall indemnify him

against the negligence of a fellow-servant, or any other
current risk ? It is rather to be implied that he contracted
with the risk before his eyes, and that the dangers of the
service taken all round, were considered in fixing the rate

of payment. This is, I believe, a fair summary of the

reasoning which has prevailed in the authorities. With

its soundness we are not here concerned. It was not only

adopted by the House of Lords for England, but forced by

(e)
Farwer v. Boston and Worcester Railroad Corporation, 4 Met. 49.
 MASTER, WHEN LIABLE TO SERVANT.

them upon the reluctant Courts of Scotland to make the

jurisprudence of the two countries uniform (/). No such
doctrine appears to exist in the law of any other country
in Europe. The following is a clear judicial statement of *
it in its settled form :
" A servant, when he engages to
serve a master, undertakes, as between himself and his

master, to run all the ordinary risks of the service, in-

cluding the risk of negligence upon the part of a fellow-
servant when he is acting in the discharge of his duty as
"
servant of him who is the common master of both (g).

The phrase " common employment " The

frequent in this Vfl,Tli"flser-
is

class of cases. But it is misleading in that it suggests a not be

limitation of the rule to circumstances where the injured ^a
servant had in fact some opportunity of observing and of work

guarding against the conduct of the negligent one ; a

limitation rejected by the Massachusetts Court in Far-
well's case, where an engine-driver was injured by the
negligence of a switchman (pointsman, as we say on
English railways) in the same company's service, and
afterwards constantly rejected by the English Courts.
"When the object to be accomplished Js_pne and the |4-
same, when the employers are the same, and the several
persons employed derive their authority and their com-
pensation from the same source, it would be extremely
difficult to distinguish what constitutes one department
and what a distinct department of duty. It would vary
with the circumstances of every case. If it were made to
depend upon the nearness or distance of the persons from
each other, the question would immediately arise, how near

(/) See Wilson v. Merry (1868) p. 296 ;

Archibald J. used very
L. R. 1 So. & D. 326. similar language in Lovell v. Howell
(g} Erie C. J. in Tunney v. Mid- (1876) 1 C. P. D. at p. 167, 45
land R. Co. (1866) L. R. 1 C. P. ut L. J. C. P. 387.
90 PERSONS AFFECTED BY TORTS.

or how distant must they be to be in the same or different

departments. In a blacksmith's shop, persons working in
the same building, at different quite indepen- fires, may be
dent of eaeh other, though only a few feet distant. In a

ropewalk several may be at work on the same piece of

cordage, at the same time, at many hundred feet distant

from each other, and beyond the reach of sight or voice,

and yet acting together.
"
appears to us that the argument rests upon
Besides, it

an assumed principle of responsibility which does not exist.

The master, in the case supposed, is not exempt from lia-
bility because the servant has better means of providing for
his safety when he
employed in immediate connexion
is

with those from whose negligence he might suffer, but

because the implied contract of the master does not extend
to indemnify the servant against the negligence of any one
but himself ;
and he is not liable in
the negli- tort, as for

gence of his servant, because the person suffering does not

stand towards him in the relation of a stranger, but is
one whose rights are regulated by contract, express or
implied "(A).

provided So it has been said that " we must not over-refine, but
general
look, at the common object, and not at the common imme-l
11
diate object "(0- All persons engaged under the same\
object?

(h) Shaw
C. J., Farwett v. Bos- ferent result of holding the master
ton, $c. Corporation, 4 Met. 49. M. bound, as an implied term of the
Sainctelette of Brussels, and M. contract, to insure the servant
Sauzet of Lyons, whom he quotes against all accidents in the course
(op. cit. p. 140), differ from the of the service, and not due to the
current view among French-speak- servant's own fault or vis major.
ing lawyers, and agree with Shaw (i] Pollock C. B., Morgan v. Vale
C. J. and our Courts, in referring of Neath It. Co. (1865) Ex. Ch.
the whole matter to the contract L. R. 1 Q. B. 149, 155, 35 L. J.
between the master and servant ; Q. B. 23.
but they arrive at the widely dif-
 " COMMON EMPLOYMENT." 91

employer for the purposesjjf the sam,^ hiifljflftaH^hnwftvflr \s

different in detail those purposes may be, are fellow-ser-
vants in a common employment
within the meaning of
this rule for example, a carpenter doing work on the roof
:

of an engine-shed and porters moving an engine on a turn-

tahle (/). "Where there is one common general ohject,
in attaining which a servant is exposed to risk, he is not
entitled to sue the master if he is injured by the negligence
of another servant whilst engaged in furthering the same
object "().

It makes no difference if the servant by whose negli- Relative

.-, ... -,
.

a loreman, manager, or other

f rank of the
gence another isinjured is servants

superior in the same employment, whose orders the other

was by the terms of his service bound to obey. The fore-
man manager is only a servant having greater authority
or :

foreman and workmen, of whatever rank, and however

authority and duty may be distributed among them, are
" all links in the same chain" The master is bound,
(/).

as between himself and his servants, to exercise due care

in fleeting proper and competent persona for the work
(whether as fellow- workmen in the ordinary sense, or as
superintendents or foremen), irH f^ famish mii^"h1" "T]irn
resources to accomplish the
a-flf]
work (m), and he is not
answerable further (n).

(j) See last note. these cases, believed by Lord

it is

(k) Thesiger L. J., Charks v. Brougham, and occurs as late as

Taylor (1878) 3 C. P. Div. 492, 498. Wilson v. Merry.

(I)
Feltham v. England (1866) (in) According to some decisions,

L. K. 2 Q. B. 33, 36 L. J. Q. B. which seem on principle doubtful,

14 ; f^'J"^ YI flTiTT (1868) L. R. 1 he is bound only not to furnish
Sc. & D. see per Lord Cairns
326 : means or resources which are to
at p. 333, and per Lord Colonsay his own knowledge defective : Gal-
at p. 345. The French word col- lagher v. Piper (1864) 16 C. B. N. S.
laborator, which does not mean 669, 33 L. J. C. P. 329. And
"fellow -workman" at all, was at
one time absurdly introduced into () See next page.
 PERSONS AFFECTED BY TORTS.

Servants It has further been held that the servants of sub-

of sub-
con- contractors for portions of a general undertaking were for
tractor.
this purpose fellow-servants with the servants directly em-

ployed by the principal contractors ;

and this although
there was no evidence that the sub-contractors' work was
under the direction or control of the chief contractors,
beyond the fact of its being carried on at the same time
and in the same building (o).

Volunteer Moreover, a stranger who gives his help without reward

on same to a man's servants engaged in any work
held to put is
1

servant.* I himself, as regards the master's liability towards him, in

the same position as if he were a servant. Having of his
free will (though not under a contract of service) exposed
himself to the ordinary risks of the work and made himself
a partaker in them, he is not entitled to be indemnified

against them by the master any more than if he were in

his regular employment (p).

quite lately it has been decided in by himself or his workmen in a fit

the Court of Appeal that where a and proper manner." In SJcipp v.
servant seeks to hold his master E. C. JR. Co. (1853) 9 Ex. 223, 23
liable injury caused by the
for L. J. Ex. 23, it was said that this
dangerous condition of a building duty does not extend to having a
where he employed, he must
is sufficient number of servants for

allege distinctly both that the the work : The decision

sed qu.
master knew of the danger and was partly on the ground that the
that he, the servant, was ignorant plaintiff was in fact well ac-
of it :
Griffiths v. London and St. quainted with the risk and had
Katharine Docks Co. (1884) 13 Q. B. never made any complaint.
Div. 259. Cp. Thomas v. Quarter- (o) .^j^j^j^^^jjym^^ 23
maine (1887) 18 Q. B. Div. 685, 56 Q. B. Div. 508, 58 L. J. Q. B.
L. J. Q. B. 340. 581 (diss. Fry L. J.), following and

(n) Lord Cairns, as above : to perhaps extending Wiggett v. Fox,

same effect Lord "Wensleydale, 11 Ex. 832, 25 L. J. Ex. 188.
Weems v. Mathieson (1861) 4 IMacq. (p) Potter v. Faulkner (1861) Ex.
at 227 " All that the master is
p. : Ch. 1 B. &
S. 800, 31 L. J. Q. B.

bound to do is to provide machinery 30, approving Degg v. Midland R.

fit and proper for the work, and to Co. (1857) 1 H. & N. 773, 26 L. J.
take care to have it superintended Ex. 174.
 EMPLOYERS' LIABILITY ACT. 93

On the other hand, a master who takes an active part in Exception

his own work not only himself liable to a servant injured master
is
*

by his negligence, but, if he has partners in the business, [

makes them liable also. For he is the agent of the firm,
but not a servant (q) the partners are generally answerable
:

for his conduct, yet cannot say he was a fellow-servant of

the injured man.

Such were the results arrived at by a number of modern Em-

authorities, which it seems useless to cite in more detail (r) Liability :

the rule, though not abrogated, being greatly limited in Act} 188 *

application by the statute of 1880. This Act (43 & 44

Yict. c. 42) is an experimental and em-
on the face of it

pirical compromise between conflicting interests. It was

temporary, being enacted only for seven years and the

next session of Parliament, and since continued till De-
cember 31, 1890 (s) ;
it is confined in its operation to
certain specified causes of injury and only certain kinds
;

of servants are entitled to the benefit of it, and then upon

mode of trial,
restrictive conditions as to notice of action,

and amount of compensation, which are unknown to the

common law. The effect is that a "workman" within the- o
meaning of the Act is put as against his employer in
approximately (not altogether, I think) the same position
as an outsider as regards the safe and fit condition of the
material instruments, fixed or moveable, of the master's
business. He compensation for harm
is also entitled to

mcu^eaTnrougBrtnenegligence of another servant exer-

cising superintendence, or by the effect of specific orders or

rules issued by the master or some one representing him ;

(q) Ashworth v. Stanwix (1861) 3 ligence, pp.- 73 76, 2nd ed.).

E. & E. 701, 30 L. J. Q. B. 183. (s) 52 & 53 Viet. c. 67, sched. 1,

(r) They
are well collected by part 1 (26).

Mr. Horace Smith (Law of Neg-

94 PERSONS AFFECTED BY TORTS.

and there a special wider provision for the benefit of

is

railway servants, which virtually abolishes the master's

immunity as to railway accidents in the ordinary sense of
that term. So far as the Act has any principle, it is that
of holding the employer answerable for the conduct of
those who are in delegated authority under him. It is

noticeable that almost all the litigation upon the Act has
been caused either by its minute provisions as to notice of
action, orby desperate attempts to evade those parts of its
language which are plain enough to common sense. The
text of the Act, and references to the decisions upon it,
will be found in the Appendix (Note B).

Eesulting On the whole we

have, in a matter of general public
tion of importance and affecting large classes of persons who* are
aw '

neither learned in the law nor well able to procure learned

advice, the following singularly intricate and clumsy state

of things.

First, there is the general rule of a master's liability

for his servants (itself in some sense an exceptional rule to

begin with).
Secondly, the immunity of the master where the person
injured is also his servant.

Thirdly, in the words of the marginal notes of the

" amendment of "
Employers' Liability Act, law by a
series of elaborate exceptions to that immunity.
" "
Fourthly, exceptions to amendment of law by pro-
visoes which are mostly but not wholly re-statements of
the common law.

Fifthly, minute and vexatious regulations as to pro-

cedure in the cases within the first set of exceptions.
It is incredible that such a state of things should nowa-
days be permanently accepted either in substance or in
form. This however is not the place to discuss the prin-
 EMPLOYERS LIABILITY ACT. 95

ciples of the controversy, which I have attempted to do

elsewhere (t)
. In the United States the doctrine laid down
by the Supreme Court of Massachusetts in Farwell's case
has been very generally followed. Except in Massachu-
setts, however, an employer does not so easily avoid
responsibility by delegating his authority, as to choice of

servants or otherwise, to an intermediate superintendent (u) .

There has been a good deal of State legislation, but mostly

for the protection of railway servants only. Massachusetts
has a more recent and more comprehensive statute based on
the English Act of 1880 (x). A
collection of more or less
" on the laws regulating the liability of
detailed reports
"
employers in foreign countries has been published by the
Foreign Office (y).

(t) Essays in Jurisprudence and $ S. R. Co. v. Ross (1884) 112 U. S.

Ethics (1882) ch. 5. See for very 377 ;

and the Columbia Jurist, ii.

full information and discussion on 554. Also a stricter view than

the whole matter the evidence ours is taken of a master's duty to
taken by the Select Committees of disclose to his servant any non-
the House of Commons in 1876 and apparent risks of the employment
1877 (Parl. Papers, H. 1876, C. which are within his own know-
372; 1877,285). And see the re- ledge : Wheeler v. Mason Manufac-
port of a Select Committee of the turing Co. (1883) 135 Mass. 294.
House of Commons on amending (x) See Mr. McKinney's article

Bills, 1886, 192. in L. Q. E. vi. 189, April 1890, at

(u) Cooley on Torts, 560 ;

Shear- p. 197.
man and Redfield, ss. 86, 88, 102. (y) Parl. Papers, Commercial,
And see the late case of Chicago M. No. 21, 1886.
9o

CHAPTER IV.

GENERAL EXCEPTIONS.

Conditions WE have considered the general principles of liability for

liability
civil wrongs. It now becomes needful to consider the

fade g eneral exceptions to which these principles are subject, or

wrongful. i n o ther words the rules of immunity which limit the rules

of liability. There are various conditions which, when pre-

prevent an act from being wrongful which in their
sent, will
absence would be a wrong. Under such conditions the act
is said to be justified or excused. And when an act is said
in general terms to be wrongful, it is assumed that no such

qualifying condition exists. It is an actionable wrong,

generally speaking, to lay hands on a man in the way of

force or restraint. But it is the right of every man to
defend himself against unlawful force, and it is the
duty of officers of justice to apply force and restraint in
various degrees, from simple arrest to the infliction of death

itself, in execution of the process and sentences of the law.

Here the harm done, and wilfully done, is justified.

There are incidents, again, in every football match which
an uninstructed observer might easily take for a confused
fight of savages, and grave hurt sometimes ensues to
one or more of the players. Yet, so long as the play is

fairly conducted according to the rules agreed upon, there

is no wrong and no cause of action. For the players have
joined in the game of their own free will, and accepted its
risks. Not that a man is bound to play football or any
other rough game, but if he does he must abide its
 CLAUSES OF EXCEPTIONS. 97

ordinary chances. Here the harm done, if not justified

(for, though in a manner unavoidable, it was not in a legal
sense necessary), is nevertheless excused Again, defa-
(a).
mation a wrong
is ;
but there are certain occasions on which
a man may with impunity make and publish untrue state-
ments to the prejudice of another.
" sic utere
Again, tuo
"
ut alienum non laedas is said to be a precept of law; yet
there are divers things a man may freely do for his own
ends, though he well knows that his neighbour will in
some way be the worse for them.

Some of the principles by which liability is excluded are General

applicable indifferently to all or most kinds of injury, ticular ex-
l
while others are confined to some one species. The rule as cep
" "
to privileged communications belongs only to the law
of libel and slander, and must be dealt with under that

particular branch the subject.

of So the rule as to
" "
contributory negligence qualifies liability for negli-

gence, and can be understood only in connexion with the

special rules determining such liability. Exceptions like
those of consent and inevitable on the other hand,
accident,
are of such wide application that they cannot be conve-

niently dealt with under any one special head. This class
is aptly denoted in the Indian Penal Code (for the same

or similar principles apply to the law of criminal liability)

by the name of General Exceptions. And these are the

exceptions which now concern us. The following seem to

be their chief categories. An action is within certain

limits not maintainable in respect of the acts of political
"
power called acts of state," nor of judicial acts. Execu-
(a) Justification seems to be the excuse, when it is but an accident :

proper word when the harm suf- but I do not know that the pre-
fered is inseparably incident to cise distinction is always possible
the performance of a legal duty or to observe, or that anything turns
the exercise of a common right ;
on it.

P. H
98 GENEKAL EXCEPTIONS.

tive acts of lawful authority form another similar class.

Then a class of acts has to be considered which may be

called quasi-judicial, and which, also within limits, are

protected. Also, there are various cases in which un-

qualified or qualified conferred upon private
immunity is

persons exercising an authority or power specially conferred

by law. We
may regard all these as cases of privilege in
respect of the person or the occasion. After these come

exceptions which are more an affair of common right :

inevitable accident (a point, strange to say, not clearly free

from doubt), harm inevitably incident to the ordinary
exercise of rights, harm suffered by consent or under
conditions amounting to acceptance of the risk, and harm
inflicted in self-defence or (in some cases) otherwise by
necessity.These grounds of exemption from civil liability
for wrongs have to be severally examined and defined.
" Acts of State."
And first of

1. Acts of State.

Acts of It is by no means easy to say what an act of state is,

though the term is not of unfrequent occurrence. On the

whole, appears to signify
it (1) An act done or adoptee

by the prince or rulers of a foreign independent State ii

their political and sovereign capacity, and within the limits
.

of their de facto political sovereignty ; (2) more particu-

" an act
larly (in the words of Mr. Justice Stephen (b) ),

injurious to the person or to the property of some person j

who is not at the time of that act a subject (c) of

(b) History of the Criminal Law, under the protection of English

ii. 61. law: therefore an act of state in
This includes a friendly alien
(c]
this sense cannot take place in
" " in time of peace.
living in temporary allegiance England
 ACTS OF STATE. 09

Majesty; which act is done by any representative of her

Majesty's authority, civil or military, and is either previ-

ously sanctioned, or subsequently ratified by her Majesty"

(such sanction or ratification being, of course, expressed in
the proper manner through responsible ministers).

courts of "justice profess themselves not competent General

Our
t ground of
to discuss acts of these kinds for reasons thus expressed exemp-
4.*
"
by the Judicial Committee of the Privy Council The :

"
transactions of independent States between each other

(and with subjects of other States), "are governed by other

laws than those which municipal courts administer such ;

courts have neither the means of deciding what is right,

nor the power of enforcing any decision which they may

"
make (d).
A series of decisions of the Indian Supreme Courts and
the Privy Council have applied this rule to the dealings
of the East India Company with native States and with
the property of native princes (e).
In these cases the line

between public and private property, between acts of

regular administration and acts of war or of annexation,
isnot always easy to draw. Most of them turn on acts
of political annexation. Persons who by such an act
become British subjects do not thereby become entitled to
complain in municipal courts deriving their authority
from the British Government of the act of annexation
itself or anything incident to it. In such a case the
only remedy is by petition of right to the Crown. And
the effect is the same if the act is originally an excess of

authority, but is afterwards ratified by the Crown.

(d] Secretary of State in Council See Doss v. Secretary of State

(e)

of India v. Eamachee Boye Sahaba for India in Council (1875) 19 Eq.

(1859) 13 Moo. P. C. 22, 75. 509, and the case last cited.

H2
 100 GENERAL EXCEPTIONS.
" Bur on v. Denman (f
The leading case on this subject is .

This was an action against Captain Denman, a captain in

the navy, for burning certain barracoons on the West
Coast of Africa, and releasing the slaves contained in them.
His conduct in so doing was approved by a letter written
by Mr. Stephen, then Under Secretary of State for the
Colonies, by the direction of Lord John Russell, then

Secretary of State. It was held that the owner of the

slaves [a Spanish subject] could recover no damages for
his loss, as the effect of the ratification of Captain Den-
man's act was to convert what he had done into an act of
state, for which no action would lie."

So far Mr. Justice Stephen, in his History of the Criminal

Law (g) It is only necessary to add, as he does on the
.

next page, that "as between the sovereign and his subjects
there can be no such thing as an act of state. Courts of
law are established for the express purpose of limiting
public authority in its conduct towards individuals. If
one British subject puts another to death or destroys his
property by the express command of the King, that com-
mand no protection to the person who executes it unless
is

it is in itself lawful, and it is the duty of the

proper courts
"
of justice to determine whether it is lawful or not as, :

for example, when

the Court of King's Bench decided that
a Secretary of State had no power to issue general warrants
to search for and seize papers and the like (h).

Local Another question which has been raised in the colonies

actions
against and Ireland, but which by its nature cannot come before
governor^
an English court for direct decision, is how far an action
is maintainable against an the nature of a viceroy
officer in

during his term of office, and in the local courts of the

(/) (1847) 2 Ex. 167. (A) EnticJc v. Carrington, 19 St.

(ff]
Vol. ii. p. 64. Tr. 1043.
 ACTS OF STATE. 101

territory inwhich he represents the Crown. It has been

held by the Judicial Committee that the Lieutenant-
^
Governor of a colony is not exempt from suit in the courts
of that colony for a debt or other merely private cause of
j

action (i) ;
and by the Irish courts, on the other hand, that
the Lord-Lieutenant is exempt from being sued in Ireland
"
for an act done in his official or " politic capacity (k).

There another quite distinct point of jurisdiction in Acts

is of

connexion with which the term " act of state " is used,
powers.
A sovereign prince or other person representing an inde-
pendent power is not liable to be sued in the courts of
this country for acts done in a sovereign capacity and ;

this even if in some other capacity he is a British subject,

as was the Hanover, who remained
case with the King of
an English peer after the personal union between the
Crowns of England and Hanover was dissolved (I). This
rule included in a wider one which not only extends
is

beyond the subject of this work, but belongs to inter-

national as much as to municipal law. It has been thus
" As a consequence of
expressed by the Court of Appeal :

the absolute independence of every sovereign authority,

and of the international comity which induces every sove-
reign state to respect the independence of every other

(i)
Hill v. Bigge (1841) 3 Moo. Tandy v. Westmoreland, 27 St.

P. C. 465 dissenting from Lord

;
Tr. 1246. These cases go very
Mansfield's dictum in Mostyn v. far, for the Lord Lieutenant was
Fabrigas, Cowp. 172, that "locally not even called on to plead his
during his government no civil or privilege, but the Court stayed
criminal ae^ow willlie him " against ; proceedings against him on motion,
though it may be that he is pri- As to the effect of a local Act of
vileged from personal arrest where indemnity, see Phillips v. Eyre
arrest would, by the local law, be (1870) Ex. Ch. L. R. 6 Q. B. 1.
part of the ordinary process. (t)
Duke of Brunswick v. King
(k) Luby v. jrodehousc, 17 Ir. of Hanover (1843-4) 6 Beav. 1,57;
C. L. R. 618 ;
Sullivan v. Spencer, affirmed in the House of Lords,
Ir. R. 6 C. L. 173, following 2 H. L. C. 1.
102 GENERAL EXCEPTIONS.

sovereign state, each and every one declines to exercise

by means of any of its Courts, any of its territorial juris-

diction over the person of any sovereign or ambassador of

any other state, or over the public property of any state

which is destined to its public use, or over the property of
any ambassador though such sovereign, ambassador, or
(m),

property be within its territory, and therefore, but for the

common agreement, subject to its jurisdiction" (n).

Summary. If we may generalize from the doctrine of our own

courts, the result seems to be that an act done by the

authority, previous or subsequent, of the government of a

sovereign state in the exercise of de facto sovereignty (0),
is not examinable at all in the courts of justice of any

other state. So far forth as it affects persons not subject

to the government in question, it is not examinable in the

ordinary courts of that state itself. If and so far as it

affects a subject of the same state, it may be, and in

England it is, examinable by the courts in their ordinary

jurisdiction. In most Continental countries, however, if
not in all, the remedy for such acts must be sought before
a special tribunal (in France the Conseil d'Etat : the

preliminary question whether the ordinary court or the

Conseil d'Etat has jurisdiction is decided by the Tribunal
des Conflits, a peculiar and composite court) (p).

(m) What if cattle belonging to of every state's sovereign rights

a foreign ambassador were dis- within its own jurisdiction. Plainly
trained damage f easant ? It would the command of a foreign govern-
seem he could not get them back ment would be no answer to an
without submitting to the juris- action for trespass to land, or for
diction. the arrest of an alleged offender
(n) The Parlement Beige (1880) against a foreign law, within the
5 P. D. 197, 214. body of an English county.
(0}
I have not met with a dis- (p) Law of May 24, 1872. But
tinct statement of this qualifica- the principle is ancient, and the
tion in existing authorities, but it old law is still cited on various
is evidently assumed by them, and points.
is necessary for the preservation
 JUDICIAL ACTS. 103

2. Judicial Acts.

Next as to -judicial acts. The rule is that " no action Judicial

acts,
will lie against a judge for any acts done or words spoken in
his judicial capacity in a court of justice" (q). And the

exemption is not confined to judges of superior courts. It

is founded on the necessity of judges being independent in

the exercise of their a reason which applies equally

office,

to all judicial proceedings. But in order to establish the t

exemption as regards proceedings in an inferior court, the

judge must show that at the time of the alleged wrong-
doing some matter was before him in which he had
jurisdiction (whereas in the case of a superior court it is

for the plaintiff to prove want of jurisdiction) ;

and the
act complained of must be of a kind which he had power
to do as judge in that matter.
" to
Thus a revising barrister has power by statute (r)

order any person to be removed from his court who shall

interrupt the business of the court, or refuse to obey his

"
lawful orders in respect of the same but it is an action-:

able trespass if under colour of this power he causes a

person to be removed from the court, not because that
person is then and there making
a disturbance, but because
in the revising barrister's opinion he improperly suppressed
facts within his knowledge at the holding of a former

court (s).
The like law holds if a county court judge
commits a party without jurisdiction, and being informed
of the facts which show that he has no jurisdiction (t) ;

though an inferior judge is not liable for an act which on

(q) Scott v. Stansfield (1868)

L. (s)
Willis v. Maclachlan (1876)
R. 3 Ex. 220, 37 L. J. Ex. 155, 1 Ex. D. 376, 45 L. J. Q. B. 689.
which confirms and sums up the (/)
Houlden v. Smith (1850) 14
effect of many previous decisions. Q. B. 841, 19 L. J. Q. B. 170.
(/) 28 & 29 Viet. c. 36, s. 16.
104 GENERAL EXCEPTIONS.

the facts apparent to him at the time was within his

jurisdiction, but by reason of facts not then shown was in

truth outside it (u).

A judge not liable in trespass for want of jurisdic-

is

tion, unless he knew or ought to have known of the defect ;

and it lies on the plaintiff, in every such case, to prove that

fact (a?).
And
the conclusion formed by a judge, acting

judicially and in good faith, on a matter of fact which it

is within his jurisdiction to determine, cannot be disputed

in an action against him for anything judicially done by

him in the same cause upon the footing of that con-
clusion (y).
"
Allegations that the act complained of was done mali-
"
ciously and corruptly," that words were spoken falsely
and maliciously," or the like, will not serve to make an
action of this kind maintainable against a judge either of
a superior (z) or of an inferior (a) court.

Liability There are two cases in which by statute an action does

by statute
in special or did lie against a judge for misconduct in his office,
cases.
namely, he refuses to grant a writ of habeas corpus in
if

vacation time (), and if he refused to seal a bill of

exceptions (c)
.

Judicial The rule of immunity for judicial acts is

applied not
acts of
persons only to judges of the ordinary civil tribunals, but to
not
judges.
members of naval and military courts-martial or courts of

(u) Lowther v. Earl of Radnor cited.

(1806) 8 East 113, 118. () Fray v. Blackburn (1862) 3

(x) Colder v. Halket (1839) 3 B. & S. 576.
Moo. P. C. 28, 78. (a) Scott v. L.
Stansfield (1868)
(y) 'Kemp v. Neville
(1861) 10 B. 3 Ex. 220, 37 L. J. Ex. 155.
C. .B. N. S. 523, 31 L. J. C. P.
(b) 31 Car. II. c. 2, s. 9.

158 (an action against the Vice- (c) 13 Edw. I. (Stat. Westm. 2)
Chancellor of the University of c. 31, cf.
Blackstone, iii. 372.
Cambridge), and authorities there
 EXECUTIVE ACTS. 105

inquiry constituted in accordance with military law and

usage (d). It is also applied to a limited extent to arbi-
trators, and to any person who is in a position like an

arbitrator's, ashaving been chosen by the agreement of

parties to decide a matter that is or may be in difference
between them. Such a person, if he acts honestly, is not
liable for errors in judgment (e). He would be liable for

a corrupt or partisan exercise of his office but if he really ;

does use a judicial discretion, the Tightness or competence

of his judgment cannot be brought into question for the

purpose of making him personally liable.

The doctrine of our courts on this subject appears to be
fully and uniformly accepted in the United States (/).

3. Executive Acts.

As to executive acts of public officers, no legal wrong Execu-

can be done by the regular enforcement of any sentence or

process of law, nor by the necessary use of force for pre-

serving the peace. It will be observed that private persons
are in many cases entitled, and in some bound, to give aid
and assistance, or to act by themselves, in executing the

(d) This may be collected from (e) Pappa v. Rose (1872) Ex. Ch.
such authorities Dawkins v.
as L. R. 7 C. P. 525, 41 L. J. C. P.
Lord JKokeby (1875) L. R. 7 H. L. 187 (broker authorized by sale note
744, 45 L. J. Q. B. 8 DawTcms v.
;
to decide on quality of goods) ;
Prince Edward of Saxe Weimar Tharsis Sulphur Co. v. Loftus (1872)

(1876) 1 Q. B. D. 499, 45 L. J. L. R. 8 C. P. 1, 42 L. J. C. P. 6
Q. B. 567, which however go to (average adjuster nominated to
some extent on the doctrine of ascertain proportion of loss as be-
" a tween ship and cargo) Stevenson v.
privileged communications," ;

doctrine wider in one sense, and Watson (1879) 4 C. P. D. 148, 48

more special in another sense, than L. J. C. P. 318 (architect nomi-
the rule now in question. Partly, nated to certify what was due to
also, they deal with acts of autho- contractor),
rity not of a judicial kind, which (/) Cooley on Torts, Ch. 14.
will be mentioned presently.
106 GENERAL EXCEPTIONS.

law; and in so doing they are similarly protected (g).

"Were not this the rule, it is evident that the law could not
be enforced at all. But a public officer may err by going
beyond his authority in various ways. When this happens
there are distinctions
(and such cases are not uncommon),
/ to be observed. The principle which runs through both
common law and legislation in the matter is that an officer
is not protected from the ordinary consequence of unwar-

ranted acts which it rested with himself to avoid, such as

using needless violence to secure a prisoner; but he is

protected if he has only acted in a manner in
itself

reasonable, an apparently regular

and in execution of

warrant or order which on the face of it he was bound to

obey (h). This applies only to irregularity in the process
of a court having jurisdiction over the alleged cause.
Where an order is issued by a court which has no juris-
diction at all in the subject-matter, so that the proceedings
" coram non
are, as it is said, judice," the exemption
ceases (i).
A constable or officer acting under a justice's
warrant is, however, specially protected by statute, not-
withstanding any defect of jurisdiction, if he produces
the warrant on demand (k). Many particular statutes
contain provisions which give a qualified protection to
persons acting under the statute, by requiring notice of
action to be given, or the action to be brought within a
limited time, or both. It would serve no useful purpose
to attempt a collection of such provisions, which are

(g) The details of this subject (i} The case of The Marshalsea,

belong to criminal law. 10 Co. Rep. 76 a ;

Clark v. Woods

(h) Mayor of London v. Cox (1867) (1848) 2 Ex. 395, 17 L. J. M. C. 189.

L. R. 2 H. L. at p. 269 (in opinion (k) 24 Geo. II. c. 44, s. 6. (Ac-
of judges, per "Willes J.). The tion lies only if a demand in
law seems to be understood in the writing for perusal and copy of
same way in the United States. the warrant is refused or neglected
Cooley on Torts, 459 462. for six days.)
 NAVAL AND MILITARY DISCIPLINE. 107

important, and sometimes intelligible, only in connexion

with the special branches of public law in which they
occur (/).

As to a mere mistake ofsuch as arresting the body

fact,

or taking the goods of the wrong person, an officer of the

law is not excused in such a case. He must lay hands on
the right person or property at his peril, the only excep-
tion being on the principle of estoppel, where he is misled

by the party's own act (m).

Acts done by naval and military officers in the execution Acts of

or intended execution of their duty, for the enforcement of

military
officers -
the rules of the service and preservation of discipline, fall
to some extent under this head. The justification of a
superior officer as regards a subordinate partly depends on
the consent implied (or indeed expressed) in the act of a
man's joining the service that he will abide by its regula-
tions and usages partly on the sanction expressly given to
;

military law by statutes. There is very great weight of

opinion, but no absolute decision, that an action does not
lie in a civil court for bringing an alleged offender against

military law (being a person subject to that law) before a

court-martial without probable cause (n). far the How
orders of a superior officer justify a subordinate who obeys
them as against third persons has never been fully settled.

But the better opinion appears to be that the subordinate is

(I)
Cf. Dicey on Parties, 430. authorities collected in Fisher's
Sect. 170 of the Army Act, 1881, Digest, ed. Mews, sub tit. Sheriff,
will serve as a recent specimen. (n) Johnstone v. Sutton (1786-7)
Cf. the Indian Code of Civil Pro- Ex. Ch. 1 T. R. 510, 548 affirmed ;

cedure (Act XIV. 1882), s. 424. inH. L. ibid. 784, 1 Bro. C. P. 76.
(m) See Glasspoole v. Young (1829) The Ex. Ch. thought the action
9 B. & C. 696 ;
Balme v. Hutton did not but the defendant was
lie,

Ex. Ch. (1833) 9 Bing. 471 Dun- ;

entitled tojudgment even if it did.
ston v. Paterson (1857) 2 C. B. N. S. No reasons appear to have been
495, 26 L. J. C. P. 267 and other
; given in the House of Lords.
108 GENERAL EXCEPTIONS.

in the like position with an officer executing an apparently

regular civil process, namely, that he is protected if he

acts under orders given by a person whom
generally he is

bound by the rules of the service to obey, and of a kind

which that person generally authorized to give, and if
is

the particular order is not necessarily or manifestly

unlawful (o).

Of other The same principles apply to the exemption of a person

public
authori- acting under the orders of any public body competent in
ties.
the matter in hand. An action does not lie against the
Serjeant-at-arms of the House of Commons for excluding
a member from the House in obedience to a resolution of
the House itself ;
this being a matter of internal disci-

pline in which the House is supreme (p).

Indian The principles of English law relating to the protection

Act,
XVIII. of of judicial officers and persons acting under their orders
1850.
have in British India been declared by express enactment
(Act XVIII. of 1850).

4. Quasi-judicial Acts.

Acts of Divers persons and bodies are

upon, in the called
quasi-
j
udicial management of public institutions or government of volun-
discretion.
tary associations, to exercise a sort of conventional jurisdic-
tion analogous to that of inferior courts of justice. These

See per "Willes J. in KeigTily

(o)
12 Q. B. D. 271, 53 L. J. Q. B.
v. Bell (1866) 4F. & F. at p. 790. 209. Asto the limits of the privi-
In time of war the protection may lege, see per Stephen J. at p. 283.
perhaps be more extensive. As to As to the power of a colonial
criminal responsibility in such cases, legislative assembly over its own
cf.Stephen, Dig. Or. Law, art. 202, members, see Barton v. Taylor (J.
Hist. Cr. Law, i. 200206. C. 1886) 11 App. Ca. 197, 55 L. J.

(p) Xradlauffh v. Gossett (1884) P. C. 1.

 QUASI-JUDICIAL POWERS. 109

quasi- judicial functions are in many cases created or con-

firmed by Parliament. Such are the powers of the univer-

sities over their officers and graduates, and of colleges in

the universities over their fellows and scholars, and of the

General Council of Medical Education over registered
medical practitioners (<?). Often the authority of the quasi-

judicial body depends on an instrument of foundation,

the provisions of which are binding on all persons who

accept benefits under it. Such are the cases of endowed

schools and religious congregations. And the same prin-

ciple appears in the constitution of modern incorporated

companies, and even of private partnerships. Further, a
quasi- judicial authority may exist by the mere convention
of a number of persons who have associated themselves for

any lawful purpose, and have entrusted powers of manage-

ment and discipline to select members. The committees
of most clubs have by the rules of the club some such

authority, or at any rate an initiative in presenting matters

of discipline before the whole body. The Inns of Court

exhibit a curious and unique example of great power and

authority exercised by voluntary unincorporated societies

in a legally anomalous manner. Their powers are for

some purposes quasi- judicial, and yet they are not subject
to any ordinary jurisdiction (r).

The general rule as to quasi -judicial powers of this class Rules of

is that persons exercising them are protected from civil justtce

liability if they observe the rules of natural justice, and ci

also the particular statutory or conventional rules, if any, ^

must/ DC
which may prescribe their course of action. The rules of ^observed.
natural justice appear to mean, for this purpose, that a man
is not to be removed from office or
membership, or other-

(q) SeeAllbuttv. General Council, Ch. Div. 366.

$c. (1889) 23 Q. B. Div. 400 Leeson
; (r) See Neate v. Denman (1874)
V. General Council, #c. (1889), 43 18 Eq. 127.
110 GENERAL EXCEPTIONS.

wise dealt with to his disadvantage, without having fair

and sufficient notice of what alleged against him, and an
is

opportunity of making his defence and that the decision,

;

whatever it is, must be arrived at in good faith with a view

to the common interest of the society or institution con-
cerned. If these conditions be satisfied, a court of justice
will not interfere, not even if it thinks the decision was in
fact wrong (s). complained of will be
If not, the act
declared void, and the person affected by it maintained in
his rights until the matter has been properly and regularly
dealt with These principles apply to the expulsion of
(t)
.

a partner from a private firm where a power of expulsion

is conferred by the partnership contract (u).

Absolute of Parliament
discre-
It may be, however, that by the authority
tionary (or, it would seem, by the previous agreement of the party
powers.
to be affected) a governing or administrative body, or the

majority of an association, has power to remove a man

from office or the like without anything in the nature of
judicial proceedings, and without showing any cause at all.

Whether a particular authority is judicial or absolute must

be determined by the terms of the particular instrument
creating it (?).

(*) Inderwick v. Snell (1850) 2 deed of settlement, no sufficient

Mac. &
G. 216 (removal of a direc- notice of specific charges either to
tor of a company) Dawkins v. ;
the minister or in calling special
Antrobus (1881) 17 Ch. Div. 615 meeting) .

(expulsion of a member from a (w) Blisset v. Daniel (1853) 10

club) cf. 13 Ch. D. 352.
;
Ha. 493 ; Wood v. Woad
(1874)
(0 Fisher v. Keane (1878) 11 Ch. L. R. 9 Ex. 190, 43 L. J. Ex. 190.
D. 353, 49 L. J. Ch. 11 (a club Without an express power in the

case, no notice to the member) ; articles a partner cannot be ex-

Labwchere v. Wharncli/e (1879) 13 pelled at all.

Ch. D. 346 (the like, no sufficient (v)E. g. Dean v. Bennett, supra

inquiry or notice to the member, (power judicial) Hayman v. Go-
;

callingand proceedings of general vernors of Rugby School (1874) 18

meeting irregular) Dean v. Bennett
; Eq. 28, 43 L. J. Ch. 834 (power
(1870) 6 Ch. 489, 40 L. J. Ch. 452 absolute).
(minister of Baptist chapel under
 DOMESTIC AUTHORITY. 1 1 1

On the other hand there may be question whether the Questions

duties of a particular office be quasi-judicial, or merely

... . whether
dutyjudi-
<

ministerial, or judicial for some purposes and ministerial ^D ?*_

for others. It seems that at common law
the returning or tenal :

presiding officer at a parliamentary or other election has white, $c.

a judicial discretion, and does not commit a wrong if by an
honest error of judgment he refuses to receive a vote (x) :

but now in most cases it will be found that such officers

are under absolute statutory duties (y), which they must
perform at their peril.

5. Parental and quasi-parental Authority.

Thus much of private quasi- judicial authority. There Authority

are also several'kinds of authority in the way of summary and per-

force or restraint which the necessities of society require to

be exercised by private persons. such persons are And

protected in exercise thereof, if they act with good faith
and in a reasonable and moderate manner. Parental
authority (whether in the hands of a father or guardian,
or of a person to whom it is delegated, such as a school-

master) is the most obvious and universal instance (z) It .

is needless to say more of this here, except that modern

civilization has considerably diminished the latitude of

(*) Tozer v. Child (1857) Ex. Ch. (y) 6 & 7 Viet. c. 18, s. 82. As
7 E. &B. 377, 26 L. J. Q. B. 151, to presiding officers under The
explaining Ashby v.
1

White^ Ld. Ballot Act, 1872, Pickering v. James

Raym. 938, and in 1 Sm. L. C. ; (1873) L. R. 8 C. P. 489, 42 L. J.

and see the special report of Holt's C. P. 217 Ackers v. Howard
;
(1886)
judgment published in 1837 and re- 16 Q. B. D. 739, 55 L. J. Q. B.
in Tozer v. Child. There
f erred to 273.
is some difference of opinion in (z) Blackstone, i. 452. See modern

America, see Cooley on Torts, 413, examples collected in Addison on

414. Torts, 6th ed. p. 145.
112 GENERAL EXCEPTIONS.

what judges or juries are likely to think reasonable and

moderate correction (a).
Ofcus- Persons having the lawful custody of a lunatic, and
lunatics, those acting by their direction, are justified in using such
reasonable and moderate restraint as is necessary to prevent
the lunatic from doing mischief to himself or others, or

required, according to competent opinion, as part of his

treatment. This may be regarded as a quasi-paternal
power ;
but I conceive the person entrusted with it is bound
to use more diligence in informing himself what treatment
isproper than a parent is bound (I mean, can be held
bound in a court of law) to use in studying the best
method of education. The standard must be more strict
as medical science improves. A century ago lunatics were
beaten, confined in dark rooms, and the like. Such treat-
ment could not be justified now, though then it would
have been unjust to hold the keeper criminally or civilly
liable for not having more than the current wisdom of

experts. In the case of a drunken man, or one deprived of

self-control by a fit or other accident, the use of moderate

restraint, as well for his own benefit as to prevent him

from doing mischief to others, may in the same way be
justified.

6. Authorities of Necessity.

Of the The master of a merchant ship has by reason of necessity

a ship. the right of using force to preserve order and discipline
for the safety of the vessel and the persons and property

(a) The ancient right of a hus- as a husband and wife cannot in

band to beat his wife moderately any case sue one another for assault
(F. N. B. 80 F. 239 A.) was dis- in a civil court, this does not con-
credited by Blackstone (i. 445) and cern us.
is not recognized at this day ;
but
 ACTS AUTHORIZED BY STATUTE. 113

on board. Thus, if he has reasonable cause to believe that

any sailor or
passenger is about to raise a mutiny, he may
arrest and confine him. The master may even be justified
in a case of extreme danger in inflicting punishment with-
out any form of inquiry. But " in all cases which will
admit of the delay proper for inquiry, due inquiry should
precede the act of punishment; and .... the party
charged should have the benefit of that rule of universal
being heard in his own defence" (b). In fact,
justice, of
when the immediate emergency of providing for the safety
and discipline of the ship is past, the master's authority
becomes a quasi- judicial one. There are conceivable cir-
cumstances in which the leader of a party on land, such as
an Alpine expedition, might be justified on the same prin-
ciple in exercising compulsion to assure the common safety
of the party. But such a case, though not impossible, is
not likely to occur for decision.

7. Damage incident to authorized Acts.

Thus far we have dealt with cases where some special Damage
relation of the parties justifies or excuses the intentional dentally

doing of things which otherwise would be actionable ^^ f

wrongs. We now come to another and in some respects a ? ot
*"

. . .
lawful,
more interesting and difficult category. Damage suffered
in consequence of an act done by another person, not for
that intent, but for some other purpose of his own, and not
in itself unlawful, reasons be no ground of
may for various
action. The general precept of law is commonly stated to
"
be Sic utere tuo ut alienum non laedas." If this were

(b) Lord Stowell, The Agincourt on the subject. For further refer-
(1824) 1 Hagg. 271, 274. This ences see Maude and Pollock's

judgment is the classical authority Merchant Shipping, 4th ed. i. 127.

P. I
114 GENERAL EXCEPTIONS.

literally and universally applicable, a man would act at his

peril whenever and wherever he acted otherwise than as
the servant of the law. Such a state of things would be
intolerable. It would be impossible, for example, to build

or repair a wall, unless in the middle of an uninhabited

plain. But the precept is understood to be subject to large

exceptions. Its real use is to warn us against the abuse of

" a man has a right to do
the more popular adage that
as he likes with his own"(c), which errs much more
dangerously on the other side.
There are limits to what a man may do with his own ;

and if he does that which may be harmful to his neighbour,

it is his business to keep within those limits. Neither the
Latin nor the vernacular maxim will help us much, how-
ever, to know where the line is drawn. The problems
raised by the apparent opposition of the two principles
must be dealt with each on its own footing. We say
apparent ;
for the law has not two objects, but one, that is,

to secure men. in the enjoyment of their rights, and of

their due freedom of action. In its most general form,
therefore, the questionwhere does the sphere of a man's
is,

proper action end, and aggression on the sphere of his

neighbour's action begin ?

Damage The solution is least difficult for the lawyer when the
cution of question has been decided in principle by a sovereign

legislature. Parliament has constantly thought fit to

direct or authorize the doing of things which but for that
and authority might be actionable wrongs. Now
direction
a man cannot be held a wrong-doer in a court of law for

acting in conformity with the direction or allowance of the

"
supreme legal power in the State. In other words no
Gams de div. reg. " Nullus videtur dolo
(c}
Cf. (D. 50. 17, 55):
facere, qui suo iure utitur."
 ACTS AUTHORIZED BY STATUTE. 115

action will lie for doing that which the Legislature has
authorized, he done without negligence, although it
if it

does occasion damage to any one." The meaning of the

qualification will appear immediately.
Suhject thereto,
" the
remedy of the party who suffers the loss is confined
to recovering such compensation
" " as the
(if any) Legis-
lature has thought fit to give him "(a?). Instead of the
ordinary question whether a wrong has heen done, there
can only he a question whether the special power which
has heen exercised is coupled, by the same authority that
created it, with a special duty to make compensation for
incidental damage. The authorities on this subject are

voluminous and discursive, and exhibit notable differences

of opinion. Those differences, however, turn chiefly on
the application of admitted principles to particular facts,
and on the construction of particular enactments. Thus it
has been disputed whether the compensation given by
statute to persons who are "injuriously affected" by

authorized railway works, and by the same statutes de-

prived of their common-law rights of action, was or was

not co-extensive with the rights of action expressly or by

implication taken away ;

and it has been decided, though
not without doubts and weighty dissent, that in some cases
a party who has suffered material loss is left without either

ordinary or special remedy (e).

Apart from the question of statutory compensation, it is NO action

settled that no action can be maintained for loss or incon- a^i^le

venience which the necessary consequence of an autho- damage,

is

rized thing being done in an authorized manner. person A

Lord Blackburn, Geddis v.
(d) Trustees v. Gibbs (1864-6) L. R. 1

Proprietors of Bann Reservoir (1878) H. L. at p. 112.

3 App. Ca. at p. 455 Caledonian
; (e)Hammersmith R. Co. v. Brand
E. Co. v. Walker's Trustees (1882) (18G9) L. R. 4 H. L. 171, 38 L. J.
7 App. Ca. at p. 293 ; Mersey Docks Q. B. 265.
 GENERAL EXCEPTIONS.

dwelling near a railway constructed under the authority of

Parliament for the purpose of being worked by locomotive

engines cannot complain of the noise and vibration caused

by trains passing and repassing in the ordinary course of
traffic, however unpleasant he may find it (/) ;
nor of

damage caused by the escape of sparks from the engines, if

the company has used due caution to prevent such escape
so far as practicable (g). So, where a corporation is

empowered to make a river navigable, it does not thereby

become bound to keep the bed of the river clear beyond
what is required for navigation, though an incidental
result of the navigation works may be the growth of weeds
and accumulation of silt to the prejudice of riparian
owners (h) .

Care and But order to

caution
in immunity the powers
secure this

required conferred by the Legislature must be exercised without

rC1 B
Jf a5- negligence, or, as it is perhaps better expressed, with
judgment and caution (i). For damage which could not
have been avoided by any reasonably practicable care on

(/) Hammersmith R. Co. v. Brand, Thetford (1869) L. R. 4 C. P. 629,

confirming and extending
last note, 38 L. J. C. P. 353, decided partly
Rex v. Pease (1832) 4 B. & Ad. 30, on the ground that the corporation
where certain members and ser- were not even entitled to enter on
vants of the Stockton and Dar- land which did not belong to them
lington Railway Company were to remove weeds, &c., for any pur-
indicted for a nuisance to persons poses beyond those of the naviga-
using a high road near and parallel tion. A rather similar case, but
to the railway. Lord Bramwell decided the other way in the last
must have forgotten this authority resort on the construction of the
when he said in the Court of Appeal particular statute there in question,
that Rex v. Pease was wrongly is Geddis v. Proprietors of Bann
decided (5 Q. B. D. 601). Reservoir, 3 App. Ca. 430. Crack-
(g} Vaughan v. Toff Vale R. Co. nel? s case seems just on the line ;

(1860) Ex. Ch. 5 H. & N. 679, 29 cp. Biscoe v. G. E. JR. Co. below.
L. J. Ex. 247. See below in Ch. (i)
Per Lord Truro, L. $ N. W.
XII. R. Co. v. Bradley (1851) 3 Mac. &

(h) Crackncll v. Corporation of a. at p. 341.

 AUTHORIZED WORKS. 117

the part of those who are authorized to exercise the power,

there is no right of action. But they must not do needless
harm ;
and if they do, it is a wrong against which the

ordinary remedies are available. If an authorized railway

comes near my house, and disturbs me by the noise and
vibration of the trains, it may be a hardship to me, but it

is no wrong. For the railway was authorized and made

in order that trains might be run upon it, and without
noise and vibration trains cannot be run at all. But if the

company makes a cutting, for example, so as to put my

house in danger of falling, I shall have my action for ;

they need not bring down my house to make their cutting.

They can provide support for the house, or otherwise
"
conduct their works more carefully. When the company
can construct its works without injury to private rights, it

is in general bound to do so" (k). Hence there is a

material distinction between cases where the Legislature
" directs that a "
thing shall at all events be done (/), and
those where it only gives a discretionary power with choice
of times and places. Where a discretion is given, it must
be exercised with regard to the common rights of others.
A public body which is by statute empowered to set up
hospitals within a certain area, but not empowered to set
up a hospital on any specified site, or required to set up
any hospital at all, is not protected from liability if a
hospital established under this power is a nuisance to the
neighbours (HI) . And even where a particular thing is

required to be done, the burden of proof is on the person

who has to do it to show that it cannot be done without
creating a nuisance (n). A railway company is authorized

(k) Biscoe v. G. E. It. Co. (1873) v. Hill (1881) 6 App. Ca. 193.
16 Eq. 636. (n)Attorney -General v. Gaslight
(1)
6 App. Ca. 203. and Coke Co. (1877) 7 Ch. D. 217,

() Metropolitan Asylum District 221, 47 L. J. Ch. 534.

118 GENERAL EXCEPTIONS.

to acquire land within specified limits, and on any part of

that land to erect workshops. This does not justify the

in building
company, as against a particular householder,
workshops so situated (though within the authorized limits)
that the smoke from them is a nuisance to him in the occu-

pation of his house (o).

But a statutory power to carry

cattle by railway, and provide station yards and other

to be
buildings for the reception of cattle and other things
carried (without specification of particular places or times)
is incidental to the general purposes for which the railway

was authorized, and the use of a piece of land as a cattle

yard under this power, though such as would be a nuisance
at common law, does not give any right of action to adjoin-

ing occupiers (p). Such a case falls within the principle

not of Metropolitan Asylum District v. Hill, but of Rex
v. Pease.

A gas company was authorized by statute to have its

pipes laid under certain streets, and was required to supply

gas to the inhabitants. The vestry, being charged by
statute with the repair but not required
of the streets,
or authorized to use any special means, used steam rollers
of such weight that the company's pipes were often
broken or injured by the resulting pressure through the
soil. It was held that, even if the use of such rollers was
in itself the best repairing the streets in the interest
way of
of the ratepayers and the public, the act of the vestry was

wrongful as against the gas company, and was properly

restrained by injunction (q).

Rajmohun Bose v. East India

(o) 55 L. J. Ch. 354, reversing the
R. Co.
(High Court, Calcutta), decision of the Court of Appeal, 29
10 Ben. L. R. 241. Qu. whether Ch. Div. 89.
this be consistent with the case Gas light and Coke Co. v.
(q}
next cited. Vestry of St. Mary Abbott's (1885)
(p) London and Brighton R. Co. 15 Q. B. Div. 1, 54 L. J. Q. B.
v. Truman (1885) 11 App. Ca. 45, 414. The Court also relied, but
 INEVITABLE ACCIDENT. 119
" An Act of Parliament may authorize a nuisance, and
if it does so, then the nuisance which it authorizes may be
lawfully committed. But the authority given by the Act
may be an authority which falls short of authorizing a
nuisance. It may be an authority to do certain works

provided that they can be done without causing a nuisance,

and whether the authority falls within that category is
again a question of construction. Again the authority
given by Parliament may be to carry out the works with-
out a nuisance, they can be so carried out, but in the
if

last resort to authorize a nuisance if it is necessary for the

"
construction of the works (r).
An authority accompanied by compulsory powers, or to
be exercised concurrently with authorities ejusdem generis
which are so accompanied, will, it seems, be generally
treated as absolute but no single test can be assigned as
;

decisive (s).

8. Inevitable Accident.

In the cases we have just been considering the act by Inevitable

which the damage is caused has been specially authorized, resulting

Let us now turn to the class of cases which differ from
these in that the act is not specially authorized, but is

simply an act which, in itself, a man may lawfully do

then and there or (it is perhaps better to say) which he
;

may do without breaking any positive law. shall We

assume from the first that there is no want of reasonable
care on the actor's part. For it is undoubted that if by

only by way of confirmation, on (r)

Bowen L. J., 29 Ch. D. at
certain special Acts dealing with p. 108.
the relations between the vestry (s) See especially Lord Black-
and the company. See 15 Q. B. D. burn's opinion in London and
at p. 6. Brighton B. Go. v. Truman.
120 GENERAL EXCEPTIONS.

failure in due care I cause harm to another, however inno-

cent my intention, I am liable. This has already been
noted in a general way (t) . No less is it certain, on the

other hand, that I am not answerable for mere omission to

do anything which it was not my specific duty to do.
It is true that the very fact of an accident happening is

commonly some evidence, and may be cogent evidence,

of want of due care. But that is a question of fact, and
there remain many cases in which accidents do happen
notwithstanding that all reasonable and practicable care is
"
used. Even the " consummate care of an expert using
special precaution in a matter of special risk or import-
ance not always successful. Slight negligence may be
is

divided by a very fine line from unsuccessful diligence.

But the distinction is real, and we have here to do only
with the class of cases where the facts are so given or
determined as to exclude any negligence whatever.

Conditions The question, then, is reduced to this, whether an action

inquiry, lies against me for harm resulting by inevitable accident
from an act lawful in itself, and done by me in a reason-
able and careful manner. Inevitable accident is not a
verbally accurate term, but can hardly mislead ; it does
not mean absolutely inevitable (for, by the supposition, I
was not bound to act at all), but it means not avoidable
by any such precaution as a reasonable man, doing such
an act then and there, could be expected to take. In the
words of Chief Justice Shaw of Massachusetts, it is an
accident such as the defendant could not have avoided

by use of the kind and degree of care necessary to the

exigency, and in the circumstances, in which he was

placed.

c such
^ may Seem * m0(^ eri1 rea ders that only one solution

(t) P. 32, above.

 INEVITABLE ACCIDENT. 121

of the problem thus stated is possible, or rather that there accident

is no problem at all (u). No reason is apparent for not liability,

accepting inevitable accident as an excuse. It is true that

we may suppose the point not to have been considered at
all in an archaic stage of law, when legal redress was but
a mitigation of the first impulse of private revenge. But
private revenge has disappeared from our modern law ;

moreover we do not nowadays expect a reasonable man to

be angry without inquiry. He will not assume, in a case

admitting of doubt, that his neighbour harmed him by

design or negligence. And one cannot see why a man is
to be made an insurer of his neighbour against harm
which (by our hypothesis) is no fault of his own. For
the doing of a thing lawful in itself with due care and
caution cannot be deemed any fault. If the stick which
I hold in my hand, and am using in a reasonable manner
and with reasonable care, hurts my neighbour by pure
accident, it is not apparent why I should be liable more
than if the stick had been in another man's hand (v) . If
we go far back enough, indeed, we shall find a time and an
order of ideas in which the thing itself that does damage
is primarily liable, so to speak, and through the
thing its
owner is made answerable. That order of ideas was pre-
served in the noxal actions of Eoman law, and in our own

(u) This, at any rate, is the view might conclude it was for a proper
of modern juries ;
see Nichols v. purpose, and the striking the
Marsland (1875) L. R. 10 Ex. at p. plaintiff was a mere accident for
256, 46 L. J. Ex. 174 Holmes v. ;
which the defendant was not
Mather, L. E-. 10 Ex. at p. 262. answerable: Alderson v. Waiatell

(v) Trespass for assault by strik- (1844) 1 C. & K. 358 (before Rolfe
ing the plaintiff with a stick B.). This, if it could be accepted,
thrown by the defendant. Plea, would prove more than is here
not guilty. The jury were di- contended for. But it is evidently
rected that, in the absence of evi- a rough and ready summing-up
dence for what purpose the de- given without reference to the
fendant threw the stick, they books.
122 GENERAL EXCEPTIONS.

criminal law by the forfeiture of the offending object

which had moved, as it was said, to a man's death, under
the name of deodand. But this is matter of history, not
of modern legal policy. So much we may concede, that
when a man's act is the apparent cause of mischief, the

burden of proof is on him to show that the consequence

was not one which by due diligence he could have pre-
vented (#).
But must) the burden of proving
so does (and

matter of justification or excuse fall in every case on the

person taking advantage of it. If he were not, on the

firstimpression of the facts, a wrong-doer, the justification
or excuse would not be needed.

Apparent We believe that our modern law supports the view now
conflict
of autho- indicated as the rational one, that inevitable accident is
rities.
not a ground of liability. But
a good deal of
there is

appearance of authority in the older books for the contrary

proposition that a man must answer for all direct conse-
quences of his voluntary acts at any rate, or as Judge 0.
" acts at his Such seems
"W. Holmes (y) has put it peril."
to have been the early Grermanic law (z\ and such was the
current opinion of English lawyers until the beginning of
this century, if not later. On the other hand, it will be
seen on careful examination that no actual decision goes
the length of the dicta which embody this opinion. In
almost every case the real question turns out to be of the
form Moreover, there is no trace of
of action or pleading.

any such doctrine (that I can find or hear of at least) in

Roman or modern Continental jurisprudence (a) and this, ;

(x) Shaw C. J. would not con- ter on "Trespass and Negligence."

cede even this in the leading Mas- Heusler, Inst. des deutschen
(z)

sachusetts case of Brown v. Kendall, Privatrechts, ii. 263 LI. Hen.

;

6 Cush. at p. 297. Primi, c. 88, 6; see p. 128, below.

the whole "
(y) See on of this (a) Inpunitus est qui sine culpa
matter Mr. Justice Holmes' s chap- et dolo malo casu quodam damnum
 AMERICAN CASES ON ACCIDENT. 123

although for us not conclusive or even authoritative, is

worth considering whenever our own authorities admit of
doubt on a point of general principle. And, what is more

important for our purpose, the point has been decided in

the sense here contended for by Courts of the highest
authority in the United States. To these decisions we
shall first call attention.

In The Nitro-glycerine Case (b) the defendants, a firm of American

carriers, received a wooden case at New York to be carried The mtro-
" There was
to California. nothing in its appearance cal-
culated to awaken any suspicion as to its contents," and in
fact nothing was said or asked on that score. On arrival

at San Franciscowas found that the contents (which

it

"had the appearance of sweet oil") were leaking. The

casewas then, according to the regular course of business,
taken to the defendants' offices (which they rented from
the plaintiff) for examination. servant of the defen- A
dants proceeded to open the case with a mallet and chisel.
The being in fact
contents, nitro-glycerine, exploded.
All the persons present werekilled, and much property

destroyed and the building damaged. The action was

brought by the landlord for this last-mentioned damage,
including that suffered by parts of the building let to

committit." Gai. 3. 211. Paulas ' '

in lege Aquilia et levissima culpa
indeed says (D. 9. 2, ad legem venit." Paulus himself says there
is no iniuria if the master of a
' '

Aquiliam, 45, 4), Si def endendi

mei causa lapidem in adversarium slave, meaning to strike the slave,

misero, sed non eum sed prae- accidentally strikes a free man :
tereuntem percussero, tenebor lege D. 47. 10, de iniuriis, 4. Accord-
Aquilia ilium enim solum qui
; ing to the current English theory
vim infert ferire conceditur." But of the 16th 18th centuries an
various explanations of this are action on the case would not lie on
possible. Perhaps it shows what such facts, but trespass vi et armis
kind of cases are referred to by the would,
otherwise unexplained dictum of (b}
15 "Wall. 524 (1872).

Ulpian in the preceding fragment,

 GENERAL EXCEPTIONS.

other tenants as well as by the offices of the defendants.

Nitro-glycerine had not then (namely, in 1866) become

a

generally known article of commerce, nor were its proper-

ties well known. It was found as a fact that the defen-
dants had not, nor had any of the persons concerned in

handling the knowledge or means of knowledge of

case,
its dangerous character, and that the case had been dealt

with " in the same way that other cases of similar appear-
ance were usually received and handled, and in the mode
that men of prudence engaged in the same business would
have handled cases having a similar appearance in the
ordinary course of business when ignorant of their con-
tents." The defendants admitted their liability as for
waste as to the premises occupied by them (which in fact

they repaired as soon as possible after the accident), but

disputed it as to the rest of the building.

Doctrine The Circuit Court held the defendants were not further

preme liablethan they had admitted, and the Supreme Court of

^ ne United States affirmed the judgment. It was held
for acci- n the
that j fi rs pl ace the defendants were not bound to
dental
result of
know, in the absence of reasonable grounds of suspicion,
without the contents of packages offered them for carriage and :

gence. next, that without such knowledge in fact and without

negligence they were not liable for damage caused by the

accident (c).
" No one is
responsible for injuries resulting
from unavoidable accident, whilst engaged in a lawful
business ..... The measure of care against accident
which one must take to avoid responsibility is that which
a person of ordinary prudence and caution would use if his
own interests were to be affected and the whole risk were
his own."
(c) The plaintiff's proper remedy without informing the carriers of
would have been against the con- itsnature. See Lyell v. Ganga Dai
signor who despatched the explosive (1875) Indian Law Rep. 1 All. 60.
 AMERICAN CASES ON ACCIDENT. 125

The Court proceeded to cite with approval the case of Brown v.

Broicn v. Kendall in the Supreme Court of Massachu- (Massa-

chusett8)-
setts (d). There the and the defendant's dogs
plaintiff's
were fighting : the defendant was beating them in order
and the " The
to separate them, plaintiff looking on.
defendant retreated backwards from before the dogs, strik-

ing them as he retreated and as he approached the plain-

;

tiff, with his back towards him, in raising his stick over

his shoulder in order to strike the dogs, he accidentally hit

the plaintiff in the eye, inflicting upon him a severe in-

jury." The action was trespass for assault and

battery.
It was held that the act of the defendant in itself
" was a

lawful and proper act which he might do by proper and

safe means ;" and that if
" in
doing this act, using due
care and all proper precautions necessary to the exigency
of the case to avoid hurt to others, in raising his stick for
that purpose, he accidentally hit the plaintiff in the eye and
wounded him, this was the result of pure accident, or was
involuntary and unavoidable (e), and therefore the action
would not lie." All that could be required of the defendant
was " the exercise of due care adapted to the exigency of
the case." The rule in its general form was thus ex-
" If in the
pressed :
prosecution of a lawful act, a casualty
,

purely accidental arises, no action can be supported for an

injury arising therefrom."

There have been like decisions in the Supreme Courts of Other

New York (/) and Connecticut. And these rulings ap- cases:

pear to be accepted as good law throughout the United

States (g). The general agreement of American authority
*
(d) 6 Gush. 292 (1850). ventable by reasonable diligence.
(e) The consequence was involun- (/) Harvey v.Dunlap,'Lalor 193,
tary or rather unintended, though cited 15 Wall. 539; Morris v. Platt,
the act itself was voluntary; and it 32 Conn. 75.
was also unavoidable, i. e. not pre- (g) Cooley on Torts, 80.
J26 GENERAL EXCEPTIONS.

and opinion is disturbed, indeed, by one modern case in the

Court of Appeal of New

York, that of Castle v. Duryee (h).
But the conflicting element is not in the decision itself,
nor in anything necessary to it. The defendant was the
colonel of a regiment of New York militia, who at the

time of the cause of action were firing blank cartridge

under his immediate orders in the course of a review.
The plaintiff was one of a crowd of spectators who stood
in front of the firing line and about 350 feet from it.
Upon one of the discharges the plaintiff was wounded by
a bullet, which could be accounted for only by one of the
men's pieces having by some misadventure been loaded
with ball cartridge. It appeared that one company had
been at target practice an hour or two before, and that at
the end of the practice arms had been examined in the
usual way and surplus ammunition collected. More-
(i),

over, arms had again been inspected by the commanding

companies, in pursuance of the colonel's orders,
officers of

before the line was formed for the regimental parade.

The plaintiff sued the defendant in an action "in the
nature of trespass for an assault." A verdict for the

plaintiff was ultimately affirmed on appeal, the Court being

of opinion that there was evidence of negligence. Knowing
that some of the men had
within a short time been in pos-
session of ball ammunition, the defendant might well have
done more. He might have cleared the front of the line

before giving orders to The Court might further have

fire.

supported its decision, though it did not, by the cases which

show that more than ordinary care, nay " consummate
"
caution (j) 9 is required of persons dealing with dangerous

(h) 2 Keyes 169 (1865). happened within the last few years
(i)
It will be remembered that at an Aldershot field day, fortu-
this was in the days of muzzle- nately without hurt to any one.
loaders. A like accident, however, (j) Erie C. J. obiter, in Potter v.
 INEVITABLE ACCIDENT. 127

weapons. The Chief Judge added that, as the injury

was the result of an act done by the defendant's express
command, the question of negligence was immaterial.
But this was only the learned judge's individual opinion.
It was not necessary to the decision, and there is nothing
to show that the rest of the Court agreed to it (k).

We may now see what the English authorities amount English

to. They have certainly been supposed to show that ties: cases

inevitable accident is no excuse when the immediate result

of an act is Erskine said a century ago in
complained of.

his argument in the celebrated case of The Dean of St.

Asaph (I) (and he said it by way of a familiar illustration

of the difference between criminal and civil liability) that
" man
if a rising in his sleep walks into a china shop and
breaks everything about him, his being asleepa complete is

answer to an indictment for trespass (m), but he must

answer in an action for everything he has broken.'
And Bacon had said earlier to the same that " if purpose,
a man
be killed by misadventure, as by an arrow at butts,
this hath a pardon of course but if a man be hurt or
:

maimed only, an action of trespass lieth, though it be done

"
against the party's mind and will (). Stronger examples
could not well be propounded. For walking in one's sleep

Faulkner,1 B. & S. at p. 805, 31 lie for simple trespass ? I know

L. J. Q. B. 30 Dixon v. Bell, 5;
not of any authority that it would,
M. & S. 198. though the action of trespass ori-
() The reporter adds this sig- ginally had, and retained in form
nificant note The Court did not
:
' '
down to modern times, a public
pass upon the first branch of the and penal character.
case, discussed by the Chief Judge, () Maxims of the Law, Reg. 7,
as to the question of the general following the dictum of Rede J. in
liability of the commanding 21 Hen. VII. 28. We cite Bacon,
officer." not as a writer of authority, but
(/) 21 St. Tr. 1022 (A.D. 1783). as showing, like Erskine, the
(m) Would an indictment ever average legal mind of his time.
128 GENERAL EXCEPTIONS.

is not a voluntary act at all, though possibly an act that

might have been prevented : and the practice of archery
was, when Bacon wrote, a positive legal duty under statutes
as recent as Henry VIII. 's time, though on the other hand

shooting is an extra-hazardous act (0). find the same We

statement about accidents in shooting at a mark in the
so-called laws of Henry I. (p), and in the arguments of

counsel in a case in the Year-Book of Edward IV., where

the general question was more or less discussed (q). Brian

(then at the bar) gave in illustration a view of the law

exactly contrary to that which was taken in Brown v.

Kendall. But the was only that if A. cuts his

decision

hedge so that the cuttings ipso invito fall on B.'s land, this
does not justify A. in entering on B.'s land to carry them
off. And by Choke not that (as Brian's
C. J. it is said,

view would require) A. must keep his thorns from falling

on B.'s land at all events, but that "he ought to show that
he could not do it in any other way, or that he did all that
was in his power to keep them out."

Weavers. Another case usually cited is Weavers. Ward(r). The

Ward.
plaintiff and the defendant were both members of a train-
band exercising with powder, and the plaintiff was hurt
by the accidental discharge of the defendant's piece. It
is a very odd case to quote for the doctrine of absolute lia-

bility, for what was there holden was that in trespass no

"
man shall be excused,
except it may be judged utterly
without his fault;" and the defendant's plea was held bad

(o) 0. W. Holmes 103. (q) 6 Ed. IV. 7, pi. 18; 0. W.

(p) C. 88, 6. "Si quis in ludo Holmes 85 ;
cf. 21 Hen. VII. 27,
sagittandi vel alicuius exercitii pi. a case of trespass to goods
5,
iaculo vel huiusmodi casu aliquem which does not really raise the
occidat, reddat eum ; legis enim question,
est, qui inscienter peccat, scienter (r) Hob. 134, A.D. 1616.
emendet."
 INEVITABLE ACCIDENT. 129

because only denied intention, and did not properly

it

bring before the Court the question whether the accident

was inevitable. A later case(s), which professes to follow
Weaver Ward, really departs from it in holding that
v.

"unavoidable necessity" must be shown to make a valid

excuse. This in turn was apparently followed in the next

century, but the report is too meagre to be of any

value (t).

All these, again, are shooting they occurred cases, and if

at this day the duty of using extraordinary care with

dangerous things would put them on a special footing.

In the celebrated squib case they are cited and more or less
relied upon not clear to what extent the judges
(u). It is

intended to press them. According to Wilson's report,

inevitable accident was allowed by all the judges to be an
excuse. But
Blackstone's judgment, according to his own
" inevitable "
report, says that nothing but necessity will

serve, and adopts the argument of Brian in the case of the

cut thorns, mistaking it for a judicial opinion ;
and the
other judgments are stated as taking the same line, though
less explicitly. For the decision itself the question is
hardly material, though Blackstone may be supposed to

(s)
DicTceson v. Watson, Sir T. times taken for the judgment of
Jones 205, A.D. 1682. Lambert v. the Court. At most, therefore,
Hessey, T. Raym. 421, a case of his illustrations are evidence of the
false imprisonment in the same notions current at the time,

period, cites the foregoing autho- (t) Vndenvood v. Ifewson, V

rities, and Raymond's opinion Strange 596, A.D. 1723 (defendant
certainly assumes the view that was uncocking a gun, plaintiff
inevitable accident is no excuse looking on). It looks very like
even when the act is one of lawful contributory negligence, or at any
self-defence. But then Raymond's rate voluntary exposure to the risk,

opinion a dissenting one: 8. C.

is on the plaintiff's part. But the
nom. Bessey v. Olliott, T. Raym. law of negligence was then quite
467 :
being given in the former undeveloped.
place alone and without explana- (u) Scott v. Shepherd (1773) 2

tion, it has apparently been some- W. Bl. 892. 3 "Wils. 403.

P. K
130 GENERAL EXCEPTIONS.

represent the view which he thought

the more favourable
to his own dissenting judgment. His theory was that
liability in trespass (as distinguished from an action on
unqualified as regards the immediate
the case) is conse-

quences of a man's act, but also is limited to such conse-

quences.

Leame v. Then comes Leame a comparatively modern

v. Bray (x) ,

Bray.
case, in which the defendant's chaise had run into the

plaintiff's curricle on a dark night. The defendant was

driving on the wrong side of the road ;
which of itself is

want of due care, as every judge would now tell a jury as

a matter of course. The decision was that the proper form
of action was trespass and not case. Grose J. seems to
have thought inevitable accident was no excuse, but this
was extra-judicial. Two
generations later, in Rylands v.
Fletcher, Lord Cranworth inclined, or more than inclined,
to the same opinion (?/).
Such is the authority for the
doctrine of strict liability. Yery possibly more dicta to
the same purpose might be collected, but I do not think

anything of importance has been left out (z). Although

far from decisive, the weight of opinion conveyed by these
various utterances is certainly respectable.

Cases On hand we have a series of cases which

the other
where ex~
ception appear even more strongly to imply, if not to assert, the
e '

contrary doctrine. A. and B. both set out in their vessels

(x) 3East 593 (A.D. 1803). quarrel with B. struck C. Nothing

(y] (1868) L.R. 3H. L. at p. 341. shows that A. would have been
(z) Sometimes the case of James justified or excused in striking B.
v. Campbell (1832) 5 C. &
P. 372, is And if the blow he intended was
cited in this connection. But not not lawful, it was clearly no excuse
only is it a Nisi Prius case with that he struck the wrong man
nothing particular, to recommend (p. 29 above, and see E. v. Latimer
it,but it is irrelevant. The facts (1886) 17 Q. B. D. 359, 55 L. J.
there alleged were that A. in a M. C. 135).
 INEVITABLE ACCIDENT. 131

to look for an abandoned raft laden with goods. A. first

gets hold of the raft, then B., and A/s

damaged vessel is

by thewind and sea driving B.'s against it. On such

facts the Court of King's Bench held in 1770 that A.
could not maintain trespass, "being of opinion that the

original act of the defendants was not unlawful" (a) Quite .

early in the century it had been held that if a man's horse

runs away with him, and runs over another man, he is not
even prima facie a trespasser, so that under the old rules of

pleading was wrong to plead specially in justification

it
(b).
Here however it may be said there was no voluntary act
at all on the defendant's part. In Wakeman v. Robinson,
a modern running-down case (c), the Court conceded that
" if the accident
happened entirely without default on the
part of the defendant, or blame imputable to him, the
"
action does not lie thinking, however, that on the facts
;

therewas proof of negligence, they refused a new trial,

which was asked for on the ground of misdirection in not
putting it to the jury whether the accident was the result
of negligence or not. In 1842 this declaration of the

general rule was accepted by the Court of Queen's Bench,

though the decision again was on the form of pleading (d).

Lastly, we have a decision well within our own time, Holmes v.

which, if the judgments were not so expressed as to put it

on a somewhat narrower ground, would be conclusive. In

Holmes v. Mather (e) the defendant was out with a pair of
horses driven by his groom. The horses ran away, and

(a) Davis v. Saunders, 2 Chitty (d} Hall Fearnley (1842) 3

y.
639. Q. B. 919, 12 L. J. Q. B. 22. The
(b) Gibbons v. Pepper, 1 Lord line between this and Gibbons v.

Raym. 38. Pepper is rather fine.

(c)IBing. 213(1823). Theargu- () L. R. 10 Ex. 261, 44 L. J.
ment for the defendant seems to Ex. 176 (1875).
have been very well reasoned.

K2
132 GENERAL EXCEPTIONS.

groom, being unable to stop them, guided them as best

..the

he could; at last he failed to get them clear round a

corner, and they knocked down the plaintiff. If the
driver had not attempted to turn the corner, they would
have run straight into a shop-front, and (it was suggested)
would not have touched the plaintiff at all. The jury
found there was no negligence. Here the driver was
certainly acting, for he was trying to turn the horses.
And it was argued, on the authority of the old cases and
dicta, that a trespass had been committed. The Court
refused to take this view, but said nothing about inevitable
" For the
accident in general. convenience of mankind
in carrying on the affairs of people as they go along
life,

roads must expect, or put up with, such mischief as reason-

able care on the part of others cannot avoid" (/). Thus
it seems to be made a question not only of the defendant

being free from blame, but of the accident being such as

is incident to the ordinary use of public roads. The same
idea is expressed in the judgment of the Exchequer
Chamber in Bylands v. Fletcher, where it is even said that
allthe cases in which inevitable accident has been held an
excuse can be explained on the principle " that the cir-
cumstances were such as to show that the plaintiff had
"
taken that risk upon himself (g).

Conclu- Still Holmes v. Mather carries us a long way towards the

sion. _^

position of The Nitro-glycerine Case and Broivn v. Kendall.

And, that position being in itself, as is submitted, the

reasonable one, and nothing really authoritative stand-

ing against it, we seem justified in saying on the whole

that these decisions entitled as they are to our best con-

sideration and respect, though not binding on English

(/) Bramwell B. at p. 267. (g) L. R. 1 Ex. at pp. 286, 287.

 EXERCISE OF RIGHTS. 133

courts do correctly express the common law, and the

contrary opinion, though it has been widely accepted, is
erroneous. All this inquiry may be thought to belong
not so much to the head of exceptions from liability as to
the fixing of the principles of liability in the first instance.
But such an inquiry must in practice always present itself
under the form of determining whether the particular cir-
cumstances exclude liability for an act or consequence
which is at first sight wrongful. The same remark applies,
to some extent, to the class of cases which we take next in

order.

9. Exercise of common Rights.

We have just left a topic not so much obscure in itself Immunity

as obscured by the indirect and vacillating treatment of it of common
That which we now take up is a well ns
t8 '
in our authorities.
settled one in principle, and the difficulties have been
only in fixing the limits of application. It is impossible
to carry on the common affairs of life without doing
various things which are more or less likely to cause loss
or inconvenience to others, or even which obviously tend
that way ;
and manner that their tendency
this in such a

cannot be remedied by any means short of not acting at

all. Competition in business is the most obvious example.
If John and Peter are booksellers in the same street, each
of them must some extent diminish the custom and
to

profits of the other. So if they are shipowners employing

ships in the same trade, or brokers in the same market.
So if, instead of John and Peter, we take the three or four

railway companies whose lines offer a choice of routes from

London to the north. But it is needless to pursue ex-
amples. The relation of profits to competition is matter of
134 GENERAL EXCEPTIONS.

common knowledge. To say that a man shall not seek

profit in business at the expense of others is to say that he

shall not do business at all, or that the whole constitution
of society shall be altered. Like reasons apply to a man's
use of his own land in the common way of husbandry, or
otherwise for ordinary and lawful purposes. In short, life
could not go on if we did not, as the price of our own free

action, abide some measure of inconvenience from the

equal freedom of our neighbours. In these matters veniam

petimtisque damusque vicissim. Hence the rule of law that
the exercise of ordinary rights for a lawful purpose and in
a lawful manner is no wrong even if it causes damage (Ji) .

It is chiefly in this class of cases that we meet with the

phrase or formula damnum sine iniuria; a form of words

which, like other Latin phrases and maxims, is too
many
often thought to serve for an explanation, when in truth

only an abridgment or memoria technica of the things

it is

to be explained. It is also of doubtful elegance as a

though in general Latin

technical phrase, literature iniuria
no doubt had a sufficiently wide meaning (i)
. In English
usage, however, it is of long standing (j) .

(h) A.-G. v. Tomline (1880) 14 This is in a very special context,

Ch. Div. 58, 49 L. J. Ch. 377, is and is far from warranting the
a curious case, but does not make use of "damnum sine iniuria" as
any real exception to this. It a common formula. Being, how-
shows that (1) the Crown as owner ever, adopted in the Institutes,
of foreshore has duties for the pro- 4, pr. (with the unidiomatic
9,
tection of the land, though not variant "iniuriam fecisse"), it pro-
enforceable duties ; (2) those duties, bably became, through Azo, the
where the Crown rights have be- origin of the phrase now current,
come vested in a subject, are laid In Gaius 3. 211 (on the lex
upon and may be enforced against Aquilia) we read: "Iniuria autem
that subject. occidere intellegitur cuius dolo aut

(i) Ulpian wrote (D. 9. 1, si culpa id acciderit, nee ulla alia

" est damnum quod sine iniuria
quadrupes, 1, 3): Pauperies lege
damnum sine iniuria facientis datur reprehenditur." This shows
datum, nee enim potest animal
iniuria fecisse, quod sensu caret." (.;')
See note (j) next page.
 TRADE COMPETITION. 135

A classical illustration of the rule is given by a case in The case

the Year-Book of Henry IV., which has often been cited center
&
in modern books, and which is still perfectly good autho- $*hooL
rity (A-) The action was trespass by two masters of the
.

Grammar School of Gloucester against one who had set up

a school in the same town, whereby the plaintiffs, having
been wont to take forty pence a quarter for a child's
schooling, now got only twelve pence. It was held that

such an action could not be maintained. "Damnum" said

Hankford J. " may be absque iniuria, as, if I have a mill,
and my neighbour build another mill, whereby the profit
of my mill is diminished, I shall have no action against

him, though it is damage to me .... but if a miller dis-

turbs the water from flowing to my mill, or doth any nui-
sance of the like sort, I shall have such action as the law

gives." If the plaintiffs here had shown a franchise in

themselves, such as that claimed by the Universities, it

might have been otherwise.

A case very like that of

the mills suggested by Hank- Case of

ford actually came before the Court of Common Pleas a

generation later (/) ,

and Newton C. J. stated the law in

that "damnum sine iniuria dare

" 21 (see below), "damnum
47, pi.
was a not a common " occurs,
correct if absque iniuria
phrase: though it could never (K) Hil. 11 Hen. IV. 47, pi. 21
have for Gaius or Ulpian the wide (A.D. 1410-11). In the course of
meaning "of harm [of any kind] argument the opinion is thrown
which gives no cause of action." out that the education of children
"Damnum sine iniuria" standing isa spiritual matter, and therefore
alone as a kind of compound noun, the right of appointing a school-
according to the modern use, is master cannot be tried by a tem-
hardly good Latin. poral court. The plaintiff tried to
(j) Bracton says, fo. 221 a : "Si set up a quasi franchise as holding

quis in fundo proprio construat an ancient office in the gift of the

aliquod molendinum, et sectam Prior of Lantone, near Gloucester
suam et aliorum vicinorum sub- (sic: probably Llanthony is meant),
trahat vicino, facit vicino damnum (1) 22 Hen. VI. 14, pi. 23 (A.D.
et non iniuriam." In 11 Hen. IV. 1443). The school case is cited.
136 GENERAL EXCEPTIONS.

much the same terms. Even if the owner of the ancient

mill is entitled to sue those who of right ought to grind at
his mill, and grind at the new one, he has not any remedy
" He who hath a free-
against the owner of the new mill.
hold in the vill may build a mill on his own ground, and
this is wrong to no man." And the rule has ever since
been treated as beyond question. Competition is in itself
no ground of action, whatever damage it may cause. A
trader can complain of his rival only if a definite exclusive

right, such as a patent right,

or the right to a trade mark,
is infringed, or a wilful attempt to damage his
if there is

business by injurious falsehood (" slander of title ") or acts

otherwise unlawful in themselves. Underselling is not a

wrong, though the seller may purposely sell some article

at unremunerative prices to attract custom for other
articles nor is it a wrong even to offer advantages to
;

customers who will deal with oneself to the exclusion of a

rival (m).
" man
To say that a is to trade freely, but that he is

to stop short atany act which is calculated to harm other

tradesmen, and which is designed to attract their business
to his own shop, would be a strange and impossible counsel
" "
of perfection (n). To draw a line between fair and un-
fair competition, between what is reasonable and unreason-

able, passes the

power of the Courts. Competition exists
where two or more persons seek to possess or to enjoy the
same thing ;
it follows that the success of one must be the
failure of another, and no principle of law enables us to
interfere with or to moderate that success or that failure
so long as it is due to mere competition " (o).

(m) Mogul Steamship Co. v. (n) Bowen L. J., 23 Q. B. Div.

McGregor (1889) 37 W. B. 756, at p. 615.
23 Q. B. Div, 598, (o) Fry L. J., ibid, at pp. 625,
626.
 USE OF ONE'S OWN LAND. 137

Another group of authorities of the same class is that Digging

UP ells &c
"
which establishes that the disturbance or removal of the i n a man's
ownland
soil in a man's own land, though it is the means (by
-

of drying up his neigh-

process of natural percolation)
bour's spring or well, does not constitute the invasion of a

legal right, and will not sustain an action. And further,

that it makes no difference whether the damage arise by
the water percolating away, so that it ceases to flow along
channels through which it previously found its way to the

spring or well ;
or whether, having found its way to the

spring or well, it ceases to be retained there" (p). The

leading cases are Actoyi \.Blundell (q) and Chasemore v.
Rioh&vdo (r). In the former it was expresslylaid down as
" that the
the governing principle person who owns the
surface may dig therein, and apply all that is there found
to his own purposes, at his free will and pleasure, and that
if in the exercise of such right he intercepts or drains off
the water collected from underground springs in his neigh-
bour's well, this inconvenience to his neighbour falls within
the description of damnum absque iniuria which cannot
become the ground of an action." In this case the defen-
dant had sunk a deep pit on his own land for mining
purposes, and kept it
dry by pumping in the usual way,
with the result of drying up a well which belonged to the
plaintiff, and was used by him to supply his cotton mill.
Chasemore Richards carried the rule a step further in
v. chase-

two directions. It settled that it makes no difference if the

well or watercourse whose supply is cut off or diminished
is ancient, and also
(notwithstanding considerable doubt
expressed by Lord Wensleydale) that it matters not whether

(p) 'PeTCvr.,allacorlcish Mining (q) 12 M. & W. 324, 13 L. J.

Co. v. Harrison (1873) L. R. 5 P. Ex. 289 (1843).
C. at p. 61, 43 L. J. P. C. 19. (r) 7 H. L. C. 349, 29 L. J. Ex.
81 (1859).
138 GENERAL EXCEPTIONS.

the operations carried on by the owner of the surface are

or are not for any purpose connected with the use of the
land itself. The defendants in the cause were virtually
the Local Board of Health of Croydon, who had sunk a

deep well on their own land to obtain a water supply for

the town. The making of this well, and the pumping of

great quantities of water from it for the use of the town,

intercepted water that had formerly found its way into the
river Wandle by underground channels, and the supply of
water to the plaintiff's ancient mill, situated on that river,
was diminished. Here the defendants, though using their

land in an ordinary way, were not using it for an ordinary

purpose. But the House of Lords refused to make any

distinction on that score, and held the doctrine of Acton v.

Blundell applicable (s) The right claimed by the plain-

.

tiff was declared to be too large and indefinite to have any

foundation in law. No reasonable limits could be set to

its exercise, and it could not be reconciled with the natural
and ordinary rights of landowners. These decisions have
been generally followed in the United States (t).

Other There are many other ways in which a man may use
applica-
tions of his own
property to the prejudice of his neighbour, and
same
principle.
yet no action lies. I have no remedy against a neighbour
who opens a new window so as to overlook my garden :

on the other hand, he has none against me if, at any time

before he has gained a prescriptive right to the light, I build
a wall or put up a screen so as to shut out his view from
that window. But the principle in question is not confined
to the use of property. It extends to every exercise of

(s)Cp., as to the distinction be- L. J. C. P. 368 ;

and further as to
tween the natural user ' of land
' ' '
the limits of "natural user," Bal-
and the maintenance of artificial lard v. Tomlimon (1885) 29 Ch. Div.

works, Hurdman v. N. E. E. Co. 115, 54 L. J. Ch. 454.

(1878) 3 C. P. Div. at p. 174, 47 (t) Cooley on Torts 580.
 MALICIOrS EXERCISE OF RIGHTS ? 139

lawful discretion in a man's own affairs. A tradesman

may depend great measure on one large customer.

in
This person, for some cause of dissatisfaction, good or bad,
or without any assignable cause at all, suddenly withdraws
his custom. His conduct may be unreasonable and ill-

conditioned, and the manifest cause of great loss to the

tradesman. Yet no legal wrong is done. And such

matters could not be otherwise ordered. It is more toler-

able that some tradesmen should suffer from the caprice of

customers than that the law should dictate to customers
what reasons are or are not sufficient for ceasing to deal

with a tradesman.

But there are cases of this class which are not so obvious. Rogers v.

A curious one arose at Calcutta at the time of the Indian p^

Mutiny, and was taken up to the Privy Council. Rajendro
Dutt and others, the plaintiffs below, were the owners of
the Underwriter, a tug employed in the navigation of the

Hoogly. A troopship
with English troops arrived at the
time when they were most urgently needed. For towing

up this ship the captain of the tug asked an extraordinary

price. Failing to agree with him, and thinking his demand
extortionate, Captain Rogers, the Superintendent of Marine

(who was defendant in the suit), issued a general order to

officers of the Government pilot service that the Undencriter

was not to be allowed to take in tow any vessel in their

charge. Thus the owners not only failed to make a profit

of the necessities of the Government of India, but lost
the ordinary gains of their business so far as they were
derived from towing ships in the charge of Govern-
ment pilots. The Supreme Court of Calcutta held that
these facts gave a cause of action against Captain
Rogers,
but the Judicial Committee reversed the decision on
140 GENERAL EXCEPTIONS.

appeal (u). The plaintiffs had not been prejudiced in any

definite legal right. No one was bound to employ their

tug, any more than they were bound to take a fixed sum
for its services. If the Government of India, rightly or

wrongly, thought the terms unreasonable, they might de-

cline to deal with the plaintiffs both on the present and on

other occasions, and restrain public servants from dealing

with them.
" The Government certainly, as any other master, may
lawfully restrict its own servants as to those whom they
shallemploy under them, or co-operate with in performing
the services for the due performance of which they are
taken into Supposing it had been believed
its service.

that the Underwriter was an ill-found vessel, or in any way

unfit for the service, might not the pilots have been law-

fully forbidden to employ her until these objections were

removed? Would it not indeed have been the duty of
the Government to do so ? And
not equally lawful is it

and right when it is honestly believed that her owners will

"
only render their services on exorbitant terms ? (x).

It must be taken that the Court thought the order com-

plained of did not, as a matter of fact, amount to an
obstruction of the tug-owners' common
right of offering
their vessel to the non-official public for employment.

Conduct might easily be imagined, on the part of an officer

in the defendant's position, which would amount to this.
And if it did, it would probably be a cause of action (y).

Whether I n this last case the harm suffered by the plaintiff in

material the Court below was not only the natural, but apparently

(u) Rogers v. Eajendro Dutt, 8 (y) See per Holt C. J. in Keeble

Moo. I. A. 103. East at pp. 575,
v. Hickerinffill, 11

(x) 8 Moo. I. A. at p. 134. 576.

 MALICIOUS EXERCISE OF RIGHTS? 141

the intended consequence of the act complained of. The in these

pQ OOO
defendant however acted from no reason of private hos-

tility, but in the interest (real

or supposed) of the public
service. Whether the averment and proof of malice, in
other words that the act complained of was done with the
sole or chief intention of causing harm to the plaintiff as

a private enemy (z), would make any difference in cases of

this class, does not appear to be decided by any authority

in our law. In Rogers v. Rajendro Dutt the Judicial
Committee expressly declined to say what the decision
would be if this element were present. In Chasemore v.
Richards the statement of facts (by an arbitrator) on
which the case proceeded expressly negatived any intention
to harm the plaintiff. Lord Wensleydale thought (appa-
rently with reluctance) that the principle of regarding the
presence or absence of such an intention had found no
place in our law (a) ;
and partly for that reason he would
have liked to draw the line of unquestionable freedom of
use at purposes connected with the improvement of the
land but he gave no authority for his statement.
itself ;

At the same time it must be allowed that he expressed the

general sense of English lawyers (b) .

The Roman lawyers on the other hand allowed that Roman

" animus vicino nocendi" did or
might make a difference. animus
In a passage cited and to some extent relied on (in the

(z)
It is very difficult to say business, does not make such acts
what "malice," as a term of art, wrongful: Mogul Steanmlup Co. v.
really means in any one of its gene- McGregor (1889) 23 Q. B. Div. 598,
but not identical uses
rally similar ;
37 W. R. 756.
but I think the gloss here given is (a) 7 H. L. C. at p. 388. But
sufficiently correct for the matter see per Fry L. J., 23 Q. B. Div. at
in hand. At all events, the inten- p. 625, on the hypothetical case of
tion of causing disadvantage to the "
competition used as a mere engine
plaintiff as a competitor in busi- of malice."
ness by acts in themselves lawful, (b) See Sir "W. Markby's "Ele-
and done in the course of that ments of Law," s. 239.
142 GENERAL EXCEPTIONS.

scantiness, at that time, of native authority) in Acton v.

"
Blundell, we Denique Marcellus scribit, cum eo
read :

qui in suo fodiens vicini fontem avertit, nihil posse agi,

nee de dolo actionem et sane non debet habere, si non
:

animo vicino nocendi, sed suum agrum meliorem faciendi

id fecit" (c). And this view is followed by recognized
authorities in the law of Scotland, who say that an owner
using his own land must act " not in mere spite or malice,
in aemulationem vicini" (d). There seems on principle to
be much to recommend it. Certainly it would be no
answer to say, as one is inclined to do at first sight, that
the law can regard only intentions and not motives. For
in some cases the law does already regard motive as dis-
tinct from purpose or intention, as in actions for malicious
prosecution, and in the question of privileged communi-
cations in actions for libel. And also this is really a

matter of intention. The motives for a man wishing ill to

his neighbour in the supposed case may be infinite : the

purpose, the contemplated and desired result, is to do such

and such ill to him, to dry up his well, or what else it may
be. If our law is to be taken as Lord Wensleydale
assumed it to be, its policy must be rested simply on a
balance of expediency. Animus vicino nocendi would be
very difficult of proof, at all events if proof that mis-
chief was the only purpose were required (and it would
hardly do to take less) and the evil of letting a certain
:

kind of churlish and unneighbourly conduct, and even

deliberate mischief, go without redress (there being no
reason to suppose the kind a common one), may well be

thought less on the whole than that of encouraging

vexatious claims. In !Roman law there is nothing to show
whether, and how far, the doctrine of Ulpian and Mar-

(e)
D. 39, 3, de aqua, 1, 12 (d) Bell's Principles, 966 (re-

(Ulpian). f erred to by Lord Wensleydale).

 LEAVE AND LICENCE. 143

cellus was found capable of practical application. I cannot

learn that it has much effect in the law of Scotland. It

seems proper, however, to point out that there is really no

positive English authority

on the matter.

in general recognize any exclu- Cases of

Again our law does not 6

sive right to the use of a name, personal or local. I may names.

use a name similar to that which neighbour uses and my
that whether I inherited or found it, or have assumed it of

my own motion so long as I do not use it to pass off my

wares or business as being his. The fact that inconvenience

arises from the similarity will not of itself constitute a

of pecuniary damage will
legal injury (e), and allegations
" You must have in our law
not add any legal effect.
"
injury as well as damage (/).

10. Leave and Licence : Volenti non fit iniuria.

Harm suffered by consent is, within limits to be men- Consent or

rr,, . .
acceptance
tioned, not a cause of civil action. The same is true where Of n^
it is met with under conditions manifesting acceptance, ji

on the part of the person suffering it, of the risk of that

kind of harm. The maxim by which the rule is commonly
" Yolenti "
brought to mind is non fit iniuria." Leave
and licence" the current English phrase for the defence
is

raised in this class of cases. On the one hand, however,

wlenti non fit iniuria not universally true. On the other
is

hand, neither the Latin nor the English formula provides

(e) See Buraess v. Buraess (1853) L. J. Ch. 173; Street v. Union Bank,
3 D. M. G. 896, 22 ~L. J. Ch. 675, $c. (1885) 30 Ch. D. 156, 55 L. J.
a Du Boulay v. i)u
classical case; Ch. 31.
Sottlay (18H9) L. R. 2 P. C. 430, (/) Jessel M. R, 10 Ch. Div.
38 L. J. P. C. 35 Day v^Brown-
;
304.

rigg (1878) 10 Ch. Div. 294, 48

144 GENERAL EXCEPTIONS.

in terms for the state of tilings in which there is not

specific will or assent to suffer

something which, if inflicted
against the party's will, would be a wrong, but only
conduct showing that, for one reason or another, he is
content to abide the chance of it (g).

Express The
licence.
case of express consent is comparatively rare in our
books, except in the form of a licence to enter upon land.
It is indeed in this last connexion that we most often hear
of "leave and licence," and the authorities mostly turn on
questions of the kind and extent of permission to be in-

ferred from particular language or acts (ti).

Limits of Force to the person is rendered lawful by consent in

consent.
such matters as surgical operations. The fact is common
enough indeed authorities are silent or nearly so, because
;

it is common and obvious. Taking out a man's tooth

without his consent would be an aggravated assault and

battery. With consent it is lawfully done every day. In

the case of a person under the age of discretion, the
consent of that person's parent or guardian is generally

necessary and sufficient ('). But consent alone is not

enough to justify what is on the face of it bodily harm.

There must be some kind of just cause, as the cure or
extirpation of disease in the case of surgery. Wilful hurt
is not excused by consent or assent if it has no reasonable

object. Thus if a man licenses another to beat him, not

only does this not prevent the assault from being a punish-
able offence, but the better opinion is that it does not

(g) Unless we said that leave (h) See Addison on Torts, p.

points to specific consent to an 384, 6th ed. ; Cooley on Torts 303,
act, licence to general assent
to the sqq.

consequences of acts consented to :

(i) Cp. Stephen, Digest of the
but such a distinction seems too Criminal Law, art. 204.
fanciful.
 LIMITS OF LAWFUL CONSENT. 145

deprive the party beaten of his right of action. On this

"
principle prize-fights and the like are unlawful even
when by agreement and without anger
entered into or
mutual ill- will "(k). " Whenever two persons go out to
strike each other, and do so, each is guilty of an
"
assault (I). The reason is said to be that such acts are

against the peace, or tend to breaches of the peace. But,

inasmuch as even the slightest direct application of force,
ifnot justified, was in the language of pleading m et armis
and contra pacem, something more than usual must be
meant by this expression. The distinction seems to be
that agreement will not justify the wilful causing or

endeavouring to cause appreciable bodily harm for the

mere pleasure of the parties or others. Boxing with
properly padded gloves is lawful, because in the usual
course of things harmless. Fighting with the bare fist is
not. a lawful pastime, though many kicks are
Football is
" As to
given and taken in it ; a kicking match is not.
playing at foils, I cannot say, nor was it ever said that
I know of, not lawful for a gentleman to learn
that it is

the use of the small sword; and yet that cannot be learned
without practising with foils "(m). Fencing, single-stick,
or playing with blunt sabres in the accustomed manner, is

lawful, because the players mean no hurt to one another,

and take such order by the use of masks and pads that no
hurt worth speaking of is likely. duel with sharp A
swords after the manner of German students is not lawful,

(k) Commonwealth v. Collberg Buller N. P. 16. The passage

(1876) 119 Mass. 350, and 20 Am. there and elsewhere cited from
Rep. 328, where authorities are Comberbach, apart from the
collected. See also Reg. v. Coney slender authority of that reporter,
(1882) 8 Q. B. D. 634, 538, 546, is only a dictum. Buller's own
549, 567, and infra. authority is really better.
(1) Coleridge J. in Reg. v. Lewis (m} Foster's Crown Law, 260.
(1844) 1 C. & K. at p. 421, cp.

P. L
146 GENERAL EXCEPTIONS.

though there be no personal enmity between the men, and

though the conditions be such as to exclude danger to life
or limb. Here it cannot be said that "bodily harm was
not the motive on either side" (n). It seems to be what is

called a question of mixed law and

whether a particu- fact

lar action or contest involves such intention to do real hurt

that consent or assent will not justify it(o). Neglect of

usual precautions in any pastime known to involve danger
would be evidence of wrongful intention, but not conclu-
sive evidence.
.

Reg. v. Thi s question was incidentally considered by several of

the judges in the recent case of Reg. v. Coney (p), where
the majority of the Court held that mere voluntary
presence at an unlawful fight is not necessarily punishable
as taking part in an assault, but there was no difference of

opinion as to a prize-fight being unlawful, or all persons

actually aiding and abetting therein being guilty of
assault notwithstanding that the principals fight by
mutual consent. The Court had not, of course, to decide
anything as to civil liability,but some passages in the
judgments are material. Cave J. said " The true view
:

is, I think, that a blow struck in anger, or which is likely

or is intended to do corporal hurt, is an assault, but that a

blow struck in sport, and not likely nor intended to cause
bodily harm, is not an assault, and that, an assault being

(n) Foster, L c. "Motive" is one monk might have lawfully

hardly the correct word, but the licensed another to beat him by
meaning is plain enough. way of spiritual discipline. But
(0) Cp. Pulton, De Pace Regis, anyhow he could not have sued,
17b. It might be a nice point beingcivilly dead by his entering
whether the old English back- into religion.
"
swording (see Tom Brown") was (p) 8 Q. B. D. 534, 61 L. J.
lawful or not. And quaere of the M. C. 66 (1882). For fuller col-
old rules of Rugby football, which lection and consideration of autho-
allowed deliberate kicking in some rities, cp. Mr. Edward Manson's
circumstances, Quaere, also, whether note in L. Q. R. yi. 110.
 LIMITS OF LAWFUL CONSENT. 147

a breach of the peace and unlawful, the consent of the

person struck is immaterial. If this view is correct a blow

struck in a prize-fight is clearly an assault ;
but playing
with singlesticks or wrestling do not involve an assault,
nor does boxing with gloves in the ordinary way"^).
said
" When one
Stephen J. person is indicted for
:

inflicting personal injury upon another, the consent of the

person who sustains the injury is no defence to the person

who the injury, if the injury is of such a nature, or
inflicts

is inflicted under such circumstances, that its infliction is

injurious to the public as well as to the person injured.

.... In cases where life and limb are exposed to no
serious danger in the common course of things, I think
that consent is a defence to a charge of assault, even when
considerable force is used, as for instance in cases of

wrestling, singlestick, sparring with gloves, football, and

the like ;
the question whether consent
but in all cases

does or does not take from the application of force to

another its illegal character is a question of degree depend-
"
ing upon circumstances (r). These opinions seem equally
applicable to the rule of civil responsibility (s).

A licence obtained by fraud is of no effect. This is too Licence

obvious on the general principles of the law to need fraud,

dwelling upon (t).

(q) 8 Q. B. D. at 639. As to expressed by Hawkins J., 8 Q. B.

the limits of lawful boxing, see D. at pp. 553, 554.
Reg. v. Orton (1878) 39 L. T. 293. (t)
A rather curious illustration
(r) 8 Q. B. D. at
p. 549. Com- may be found in Davies v. Mar-
pare arts. 206, 208 of the learned shall (1861) 10 C. B. N. S 697,
judge's "Digest of the Criminal 31 L. J. C. P. 61, wh'ere the so-
Law." The language of art. 208 called equitable plea and replica-
follows the authorities, but I am tion seems to have amounted to a
not sure that it exactly hits the common law plea of leave and
distinction. licence and joinder of issue, or
(s) Notwithstanding the doubt perhaps new assignment, thereon.
148 GENERAL EXCEPTIONS.

Extended Trials of strenth, R11ft h pastimes as those

meaning carried on within lawful
of volcnti above mentioned afford, when
nonjit which the
iniuria. bounds, the best illustration of the principle by
maxim volenti non fit n im^
ia^nlnrged beyond its literal
meaning. A man cannot complain of harm (within
the limits we have mentioned) to the chances of which
he has exposed himself with knowledge and of his free
will. Thus in the case of two men fencing or playing
at singlestick, volenti non fit iniuria would be assigned by
most lawyers as the governing rule, yet the words must be
forced. not the will of one player that the other
It is

should hit him; his object is to be hit as seldom as

possible. But he is content that the other shall hit him as

much as by fair play he can; and in that sense the

" assault "
striking is not against his will. Therefore the
of the school of arms is no assault in law. Still less is

there an actual consent if the fact an accident, not a

is

necessary incident, of what is being done as where in the

;

course of a cricket match a player or spectator is struck by

the ball. I suppose it has never occurred to any one that

legal wrong done by such an accident even to a spectator

is

who is taking no part in the game. So if two men are

fencing, and one of the foils breaks, and the broken end,
being thrown off with some force, hits a bystander, no
wrong is done to him. Such too is the case put in the
Indian Penal Code (u) of a man who stands near another

cutting wood with a hatchet, and is struck by the head

flying off. It may be said that these examples are trivial.

They are so, and for that reason appropriate. They show
that the principle is constantly at work, and that we find
little about it in our books just because it is unquestioned
in common sense as well as in law.

(u} Illust, to s. 80. On the point of actual consent, cf. ss. 87

and 88.
 TAKING RISK. 149

Many cases of this kind seem to fall as naturally under Relation

the exception of inevitable accident, if that exception is cases to
allowed to the extent contended for above. But there is,

we conceive, this distinction, that where the plaintiff

voluntarily put himself in the way of risk the defendant

isnot bound to disprove negligence. If I choose to stand
near a man using an axe, he may be a good woodman or
not ;
but I cannot (it is submitted) complain of an accident
because a more skilled woodman might have avoided it.

A man dealing with explosives

bound, as regards his is

neighbour's property, to diligence and more than diligence.

But if I go and watch a firework-maker for my owa
amusement, and the shop is blown up, it seems I shall
have no cause of action, even if he was handling his
materials unskilfully. This, or even more, isimplied in
the decision in Ilott v. Wilkes (#), where it was held that
one who trespassed in a wood, having notice that spring-
guns were set there, and was shot by a spring-gun, could
The maxim " volenti non fit "
not recover. iniuria was
expressly held applicable : "he voluntarily exposes him-
self to the mischief which has happened" (y}. The case
gave rise to much public excitement, and led to an altera-
tion of the law (2), but it has not been doubted in subse-

quent authorities that on the law as it stood, and the

facts as they came before the Court, it was well decided.

(x) 3 B. & Aid. 304 (1820) ; cp. (y) Per Bayley J. 3 B. & Aid. at
and dist. the later case of Bird v. p. 311, and Holroyd J. at p. 314.
Jlottrook, 4 Bing. 628. The argu- (z) Edin. Rev. xxxv. 123, 410 (re-
ment that since the defendant could printed in Sydney Smith's works),
not have justified shooting a tres- Setting spring-guns, except by
passer with his own hand, even night in a dwelling-house for the
after warning, he could not justify protection thereof, was made a
shooting him with a spring-gun, criminal offence by 7 & 8 Geo. IV.
is weighed and found wanting, c. now repealed and substan-
18,

though perhaps it ought to have tially re-enacted (24 & 25 Viet,

prevailed. c. 95, s. 1, and c. 100, s. 31).
150 GENERAL EXCEPTIONS.

As the point of negligence was expressly raised by the

pleadings, the decision is an authority

that if a man goes
out of his way to a dangerous action or state of things,
he must take the risk as he finds it. And this appears

to be material with regard to the attempt made by re-

spectable authorities, and noticed above, to bring under

this principle the head of excuse by reason of inevitable
accident (a).

Know- Itwas held by a majority of the Court of Appeal that if a

risk op- man undertakes to work in a railway tunnel where he knows
d
that frains are constantly passing, he cannot complain of the
duty of
warning. railway company for not taking measures to warn the work-
men of the approach of trains, and this though he is the
servant not of the company but of the contractor (b). The
minority held that the railway company, as carrying on a
dangerous business, were bound not to expose persons
coming by invitation upon any undue
their property to

risk, and at all events the burden of proof was on them to

show that the risk was in fact understood and accepted by

" If I invite a man who has no
the plaintiff (c). knowledge
of the locality to walk along a dangerous cliff which is my
property, I owe him a duty different to that which I owe
"
to a man who has all his life birdnested on my rocks (d).
But where a man goes on doing work under a risk which
is known to him, and which does not depend on any one

else's acts, or on the condition of the place where the work

(a) Holmes v. Mather (1875) L. Cp. Thomas v. Quartermaine

(c)

B. 10 Ex. at p. 267 ; Rylands v. (1887) 18 Q. B. Div. 685, 56 L. J.

Fletcher (1866) L. R. 1 Ex. at p. Q. B. 340, and Lord Herschell's
287. judgment in Membery v. G. W. fi.
(b) Woodley v. Metr. Dist. It. Co. Co. (1889) 14 App. Ca. 179, 190.

(1877) 2 Ex. Div. 384, 46 L. J. (d) Fry L. J. 18 Q. B. Div. at

Ex. 521 ;
Hellish and Baggallay p. 701. And see Yarmouth v.
L. JJ. diss. France (1887) 19 Q. B. D. 647, 57
L. J. Q. B. 7.
 TAKING RISK. 151

is done, but is incident to the work itself, he cannot be

heard to say that his exposure of himself to such risk was
not voluntary (e) .

The maxim rolenti non fit iniuria was carefully discussed ^ oma8 v
Quarter'
-

by the Court Appeal in Thomas v. Quartermainfi^/))

of maine.

where the actual decision was that the defence in question

isnot excluded, as between master and workman, by the

Employers' Liability Act, 1880 but the matter of the ;

judgments is of wider scope. The opinion is clearly ex-

pressed that the principle is quite different from that of

contributory negligence (#), as it is quite independent of
the contract of service or any other contract (h}. It does
not follow that a man is
negligent or imprudent because he
chooses to encounter a risk which he knows and appre-
ciates; but that position is inconsistent with a right of
action founded upon a duty which exists for the purpose of

protecting the public, or some class of persons, from risks

" The
which they have no reason to expect. duty (i) of an
occupier of premises which have an element of danger upon
them reaches its vanishing point in the case of those who
are cognisant of the full extent of the danger and volun-
tarily run the risk" (j) . At the same time knowledge is not
of itself conclusive in this or in any class of cases. The
maxim is volenti non fit iniuria ; " the question
not scienti
whether in any particular case a plaintiff was volens or nolens
is a question of fact and not of law" (k). workman is A
(e) Membery v. G. W. R. Co., (i)
As to these special duties, see
note (c),
last page.Lord Bram- pp. 7, 19, above, and for details,
well's extra-judicial remarks seem Ch. XII. below,
too wide see per Lord Herschell,
:
(J) Bowen L. J. 18 Q. B. Div.
14 App. Ca. at pp. 192, 193. at p. 695.

(/) (1887) 18 Q. B. Div.. 685, (k) Ibid, at p. 696; Lindley L. J.

56 L. J. Q. B. 340. in Yarmouth v. France (1887) 19

(ff)
Bowen L. J. 18 Q. B. Div. Q. B. D. 647, 659, before judges
at pp. 694, 697. of the C. A. sitting as a divisional

(h) Ibid. 698. Court.

 152 GENERAL EXCEPTIONS.

not bound, for example, to throw up his employment rather

than go on working with appliances which he knows or
suspects to be dangerous; and continuing to use such

appliances if the employer cannot or will not give him

better is not conclusive to show that he voluntarily takes
the attendant risk (d). Cases of volenti non fit iniuria are of
course to be distinguished from cases of pure unexpected
accident where there is no proof of any negligence at all on
the defendant's part (e).

In the construction of a policy of insurance against

"
death or injury by accident, an exception of harm hap-

pening by exposure of the insured to obvious risk of

injury" includes accidents due to a risk which would
have been obvious to a person using common care and
attention (/).

Distinc- We now see that the whole law of negligence assumes

m ^ ne principle of volenti non fit iniuria not to be applicable,
cases
where j was suggested in Holmes v. Mather (g) that when a
negligence . . . .

is ground competent driver is run away with by his horses, and in

spite of all he can do they run over a foot-passenger, the

foot-passenger is disabled from suing, not simply because

the driver has done no wrong, but because people who
walk along a road must take the ordinary risks of traffic.
But if this were so, why stop at misadventure without
negligence ? It is common knowledge that not all drivers

are careful. It is known, or capable of being known, that

a certain percentage are not careful. The actual risk to

(d}
Yarmouth v. France, last note ; Thomas v. Quartermaine (last page)
Thrussell v. Handy side(1888) 20 was not really a case of this kind.
Q. B. D. 359, 57 L. J. Q. B. 347. (/) Cornish v. Accident Insurance
(e) Walsh
v. Whiteley (1888) 21 Co. (1889) 23 Q. B. Div. 453.

Q. B. Div. 371, 57 L. J. Q. B. (g] L. E. 10 Ex. at p. 267.

586. Quaere, whether on the facts
 TAKING RISK. 153

which a man crossing the street is exposed (apart from any

carelessness on his own part) is that of pure misadventure,
and also that of careless driving, the latter element being

probably the greater. If he really took the whole risk, a

driver would not be liable to him for running over him by

negligence which is absurd. Are we to say, then, that

:

he takes on himself the one part of the risk and does not
take the other ? A
reason thus artificially limited is no
reason at all, but a mere fiction. It is simpler and better
to say plainly that the driver's duty is to use proper and

rej^ojiabla_jcare, and beyond that he is not answerable.

The true view, we that the doctrine of voluntary
submit, is

exposure to risk has no application as between parties on

an equal footing of right, of whom one does not go out of
his way more than the other. A man is not bound at his

peril to fly from a risk from which it is another's duty to

protect him,
rn
^rft1y
^ ftr> Rinsp th n'pk ifl-4rn r> wn (/i).
Much
the same principle has in late years been applied, and its
limits discussed, in the special branch of the law which

Ideals with contributory negligence. This we shall have to

^consider in its place (i)
.

11. Works of necessity.

A class of exceptions as to which there is not much Works of
r
authority, but which certainly exists in every system of
law, is that of acts done of necessity to avoid a greater

(h) Thrussell v. Handyside (1888) p. 274, 44 L. J. Q. B. 112; and

20 Q. B. D. 359, 57 L. J. Q. B. per Bramwell L. J. (not referring
347. to these authorities, and taking a
(i) See Gee v. Metropolitan H. Co. somewhat different view), Lax v.
(1873) Ex. Ch. L. R. 8 Q. B. 161, Corporation of Darlington (1879) 5
42 L. J. Q. B. 105 Robson v. N. E.
; Ex, D. at p. 35, 49 L. J. Ex. 105.
It. Co. (1875) L. E. 10 Q. B. at
154 GENERAL EXCEPTIONS.

harm, and on that ground justified. Pulling down houses

to stop a fire and casting goods overboard, or otherwise
(/;),

sacrificing property, to save a ship or the lives of those on

board, are the regular examples. The maritime law of
general average assumes, as its very foundation, that the
destruction of property under such conditions of danger is

justifiable (/).
It is said also that "in time of war one
shall justify entry on another's land to make a bulwark in
defence of the king and the kingdom." In these cases the
" "
apparent wrong sounds for the public good (m). There
are also circumstances in which a man's property or person

may have to be dealt with promptly for his own obvious

good, but his consent, or the consent of any one having
lawful authority over him, cannot be obtained in time.
Here evidently justifiable to do, in a proper and
it is

reasonable manner, what needs to be done. It has never

been supposed to be even technically a trespass if I throw
water on my neighbour's goods to save them from fire, or
seeing his house on fire, enter on his land to help in

putting it out(w). Nor is it an assault for the first

passer-by to pick up a man rendered insensible by an

accident, or for a competent surgeon, if he perceives that
an operation ought forthwith to be performed to save the
man's life, towithout waiting for him to recover
perform it

consciousness and give his consent. These works of

charity

(k) Dyer, 36 b.
danger of total loss, and, it is said,
(?)
Mouse'scase, 12 Co. Rep. 63, without remedy for the owner
is only just worth citing as an against any person, per Rede C. J.
illustration that no action lies. 21 Hen. VII. 28, pi. 5 ; but if this
(m) Kingsmill J. 21 Hen. VII. be law, it must be limited
to reme-
27, pi. 5 ; cp. Dyer, ubi supra. In dies against a trespasser, for it
8 Ed. IV. 23, pi. 41, it is thought cannot be a trespass or a lawful act
doubtful whether the justification to save a man's goods
according as
should be by common law or by they are or are not insured. Cp.
special custom. Y. B. 12 Hen. VIII. 2, where there
(n) Good will without real neces- is some curious discussion on the

sity would not do ; there must be theory of trespass generally.

 PRIVATE DEFENCE. 155

and necessity must be lawful as well as right. Our books

have only slight and scattered hints on the subject, pro-
bably because no question has ever been made (0) .

12. Private defence.

Self-defence (or rather private defence (p), for defence Self-

c
of one's self is not the only case) is another ground of

immunity well known to the law. To repel force by

force is the common instinct of every creature that has
means of defence. And when the original force is unlaw-
ful, thisnatural right or power of man is allowed, nay

approved, by the law. Sudden and strong resistance to

unrighteous attack is not merely a thing to be tolerated ;

in many cases it is a moral duty. Therefore it would be a

grave mistake to regard self-defence as a necessary evil
suffered by the law because of the hardness of men's
hearts. Thea just and perfect one. It extends
right is

not only to the defence of a man's own person, but to the

defence of his property or possession. And what may be

lawfully done for oneself in this regard may likewise be

done for a wife or husband, a parent or child, a master or
servant (q). At the same time no right is to be abused or
made the cloak of wrong, and this right is one easily
abused. The law sets bounds to it by the rule that the

(o) Of. the IndianPenal Code, B., 21 Hen. VII. 39, pi. 50. There
s. 92, and the powers given to the has been some doubt whether a
London Fire Brigade by 28 & 29 master could justify on the ground
Viet. c. 90, s. 12, which seem rather of the defence of his servant. But
to assume a pre-existing right at the practice and the better opinion
common law. have always been otherwise. Before
(p) This is the term adopted in the Conquest it was understood
the Indian Penal Code. that a lord might fight in defence
(q) Blackstone iii. 3 ;
and see of his men as well as they in his.
the opinion of all the Justices of K. LI. Alf. c. 42, $ 5.
156 GENERAL EXCEPTIONS.

t- force employed must not be out of proportion to the

apparent urgency of the occasion. say apparent, for We
a man cannot be held to form a precise judgment under
such conditions. The person acting on the defensive is
entitled to use as much force as he reasonably believes to
be necessary. Thus it is not justifiable to use a deadly
weapon push or a blow with the hand. It is
to repel a
even said that a man attacked with a deadly weapon must
retreat as far as he safely can before he is justified in

defending himself by like means. But this probably

applies (so far as it is the law) only to criminal liability (r) .

On the other hand if a man presents a pistol at my head

and threatens to shoot me, peradventure the pistol is not
loaded or is not in working order, but I shall do no wrong
before the law by acting on the supposition that it is really
loaded and capable of shooting.

Killing of Cases have arisen on the killing of animals in defence of

defence of one's property. Here, as elsewhere, the test is whether
property. ^Q p arty> s ac t was suc]1 as h e m ight reasonably, in the
circumstances, think necessary for the prevention of harm
which he was not bound to suffer. Not very long ago the
subject was elaborately discussed in NewHampshire, and
all ornearly all the authorities, English and American,
reviewed (s). Some of these, such as Deane v. Clayton (),

(r) See Stephen, Digest of Cri- close season,minks -which he rea-

minal Law, art. 200. Most of sonably thought were in pursuit of
the authority on this subject is his geese. Compare Taylor app.
in the early treatises on Pleas of Newman resp. (1863) 4 B. & S. 89,
the Crown. 32 L. J. M. C. 186.
(s)
Aldrich v. Wright (1873) 53 (t) 7 Taunt. 489, the case of
N. H. 398, 16 Am. Hep. 339. dog-spears, where the Court was
The decision was that the penalty equally divided (1817); Jordin v.
of a statute ordaining a close time Crump (1841) 8 M. & W. 782,
for minks did not apply to a man where the Court took the view of
who shot on his own land, in the Gibbs C. J. in the last case, on
 DEFENCE AND NECESSITY. 157

turn less on what amount of force is reasonable in itself

than on the question whether a man is bound, as against
the owners of animals which come on his land otherwise
than as of right, to abstain from making the land dangerous
for them to come on. And in this point of view it is
immaterial whether a man keeps up a certain state of
things on his own land for the purpose of defending his

property or for any other purpose which is not actually

unlawful.
As to injuries receivedby an innocent third person from
an act done in self-defence, they must be dealt with on the
same principle as accidental harm proceeding from any
other act lawful in itself. It has to be considered, how-

ever, that a man repellingimminent danger cannot be

expected to use as much care as he would if he had time
to act deliberately.

Self-defence does not include the active assertion of a Assertion

disputed right against an attempt to obstruct its exercise, aistin-

I am not justified in shooting, or offering to shoot, one j^ g elf .

defence,
who obstructs my right of way, though I may not be able
to pass him otherwise, and though I am justified in resist-

ing, withindue bounds, any active force used on his part.

" that the use of force which
It seems the better opinion
inflicts or may inflict grievous bodily harm or death of

what in short be called extreme force is justifiable

may
"
only for the purpose of strict self-defence (u). I may be
justified in pushing past the obstructor,
but this is not
an act of self-defence at all; it is the pure and simple
exercise of my right itself (#).

the ground that setting dog- spears (u) Dicey, Law of the Consti-
was not in itself illegal. Notice, tution, 3rd ed. 1889, appx. 410,
however, was pleaded. which see for fuller discussion.

(x) Dicey, op. cit. 411.

158 GENERAL EXCEPTIONS.

Manyinteresting questions, in part not yet settled, may

be raised in this connexion, but their interest belongs for
most practical intents to public and not to private law. It
must not be assumed, of course, that whatever is a suffi-
cient justification or excuse in a criminal prosecution will

equally suffice in a civil action.

Injury to Some of the dicta in the well-known case of Scott v.

sons from Shepherd (y] go the length of suggesting that a man acting
seW-
f
on ^
e sP ur ^ ^
e momen t un der
"
compulsive necessity
"

defence.
(the expression of De Grey C. J.) excusable as not being
is

a voluntary agent, and is therefore not bound to take any

care at all. But this appears very doubtful. In that case
hard to believe that Willis or Byal, if he had been
it is

worth suing and had been sued, could have successfully

" had a
made such a defence. right to protect
They
themselves by removing the squib, but should have taken
"
care at any rate such care as was practicable under the
" to do in such a manner as not to
circumstances it

endamage others" (z). The Roman lawyers held that a

man who throws a stone in self-defence is not excused if

the stone by misadventure strikes a person other than the

assailant (a). Perhaps harsh opinion, but it seems
this is a

better, if the choice must be made, than holding that one

may with impunity throw a lighted squib across a market-

house full of people in order to save a stall of gingerbread.
At all events a man cannot justify doing for the protection
of his own property
a deliberate act whose evident tendency
is to cause, .and which does cause, damage to the property
ofan innocent neighbour. Thus if flood water has come
on my land by no fault of my own, this does not entitle

(t/)
2 W. Bl. 892. (a) D. 9. 2, ad 1. Aquil. 45, 4 ;

(a) Blackstone J. in his dissent- supra, p. 122.

ing judgment.
 WHERE PLAINTIFF A WRONG-DOER. 159

me to let it off by means which in the natural order of

things cause it to flood an adjoining owner's land (b).

13. Plaintiff" a wrong-doer.

Language is to be met with in to the effect Harm

some books
,. sufferedby
that a man cannot sue ior any
P . . ,

injury sunered by
, ,
at a a wrong- mm .

time when he is himself a wrong-doer. But there is no doubtful

such general rule of law. If there were, one consequence whether .

any special
would be that an occupier of land (or even a fellow tres- disability,

passer) might beat or wound a trespasser without being

liable to an action, whereas the right of using force to

repel trespass to land is strictly limited ;

or if a man is

riding or driving at an incautiously fast pace, anybody

might throw stones at him with impunity. In Bird v.
Holbrook (c) a trespasser who was wounded by a spring-gun
set without notice was held entitled to maintain his action.
And "a is liable to an action for the
generally, trespasser
injury which he does but he does not forfeit his right of
;

action for an injury sustained" (d). It does not appear

on the whole that a plaintiff is disabled from recovering
by reason a wrong-doer, unless some
of being himself
unlawful act or conduct on his own part is connected with
the harm suffered by him as part of the same transaction :

and even then it is difficult to find a case where it is neces-

sary to assume any special rule of this kind. It would be

no answer to an action for killing a dog to show that the

(b) Whalley v. Lane, and York- (c) 4 Bing. 628. Cp. p. 149
shire It. Co. (1884) 13 Q. B. Div. above. The cause of action arose,
131, 53 L. J. Q. B. 285, distin- and the trial took place, before the
guishing the case of acts lawful in passing of the Act which made the -

themselves which are done by way setting of spring- guns unlawful,

of precaution against an impending (d) Barnes v. Ward (1850) 9 C.
common danger. B. 392, 19 L. J. C. P. 195.
160 GENERAL EXCEPTIONS.

owner was liable to a penalty for not having taken out a

dog licence in due time. If, again, A. receives a letter

containing defamatory statements concerning B., and reads
the letter aloud in the presence of several persons, he may
be doing wrong to B. But this will not justify or excuse
B. if he seizes and tears up the letter. A. is unlawfully
possessed of explosives which he is carrying in his pocket.
B., walking or running in a hurried and careless manner,
jostlesA. and so causes an explosion. Certainly A. cannot
recover against B. for any hurt he takes by this, or can at
most recover nominal damages, as if he had received a
harmless push. But would it make any difference if A.'s

possession were lawful ? Suppose there were no statutory

regulation at all still : a man going about with sensitive

explosives in his pocket would be exposing himself to an

unusual risk obvious to him and not obvious to other
people, and on the principles already discussed would have
no cause of action. And on the other hand it seems a
strong thing to say that if another person does know of
the special danger, he does not become bound to take
answerable care, even as regards one who has brought
himself into a position of danger by a wrongful act. Cases
of this kind have sometimes been thought to belong to the
head of contributory negligence. But this, it is submitted,
is an unwarrantable extension of the term, founded on a

misapprehension of the true meaning and reasons of the

doctrine ;contributory negligence were a sort of
as if

positive wrong for which a man is to be punished. This,

however, we shall have to consider hereafter. On the
whole it may be doubted whether a mere civil wrong-
doing, such as trespass to land, ever has in itself the effect
now under consideration. Almost every case that can be

put seems to fall just as well, if not better, under the

principle that a plaintiff who has voluntarily exposed him-
 UNLAWFUL CONDUCT OF PLAINTIFF. 161

self to a known risk cannot recover, or the still broader

rule that a defendant only for those consequences
is liable

of his acts which are, in the sense explained in a former

chapter (e), natural and probable.

In America there has been a great question, which Conflict

A upon
x
of opinion
there have been many contradictory decisions, whether the in United

violation of statutes against Sunday travelling is in itself Ca8es of

a bar to actions for injuries received in the course of such
^^ffi
travelling through defective condition of roads, negligence
of railway companies, and the like. In Massachusetts it

has been held that a plaintiff in such circumstances cannot

recover, although the accident might just as well have

happened on a journey lawful for all purposes. These

decisions must be supported, if at all, by a strict view of
the policy of the local statutes for securing the observance
of Sunday. They are not generally considered good law,
and have been expressly dissented from in some other
States (/).

a rule not confined to actions on contracts that Cause of

"
It is

the plaintiff cannot recover where in order to

. ...
maintain
action
his connected

supposed claim he must set up an illegal agreement to

which he himself has been a party " (g) but its applica- :

tion to actions of tort is not frequent or normal. The case

from which the foregoing statement is cited is the only
clear example known to the writer, and its facts were very

peculiar.

(*) P. 32 above. 721-2 ; Cooley on Torts, 156. And

(/) Button v. Town of Wauwa- see White v. Lang, 128 Mass. 598.
tosa (Wisconsin, 1871) Bigelow (g) Maule J., Fivaz v. Nichotts
L. C. 711, and notes thereto, pp. (1846) 2 C. B, 501, 512.

P. M
162

CHAPTEE Y.

OF REMEDIES FOR TORTS.

Diversity AT common law there were only two kinds of redress for
dies. an actionable wrong. One was in those cases exceptional
cases according to modern law and practice where it was
and lawful for the aggrieved party, as the common
is

phrase goes, to take the law into his own hands. The
other way was an action for damages (a). Not that a
suitor might not obtain, in a proper case, other and more
effectual redress than money compensation but he could
;

not have it from a court of common law. Specific orders

and prohibitions in the form of injunctions or otherwise
were (with few exceptions, if any) (b) in the hand of the
Chancellor alone, and the principles according to which

they were granted or withheld were counted among the

mysteries of Equity, but no such distinctions exist under
the system of the Judicature Acts, and every branch of
the Court has power to administer every remedy. There-

(a) Possession could be recovered, mands (e.g. mandamus) were ap-

of course, in an action of ejectment. plicable to the redress of purely
But this was an action of trespass private wrongs, though they might
in form only. In substance it took be available for a private person
the place of the old real actions, wronged by a breach of public
and it issometimes called a real duty. Under the Common Law
action. Detinue was not only not Procedure Acts the superior courts
a substantial exception, but hardly of common law had limited powers
even a formal one, for the action of granting injunctions and ad-
was not really in tort. ministering equitable relief. These

(b)
I do not think any of the were found of little importance in
powers of the superior courts of practice, and there is now no reason
common law to issue specific com- for dwelling on them.
 SELF-HELP. 163

fore we have at this day, in considering one and the same

jurisdiction, to bear in mind the manifold forms of legal
redress which for our predecessors were separate and un-
connected incidents in the procedure of different courts.

Remedies available to a party by his own act alone may Self-help

be included, after the example of the long established
German usage, in the expressive name of self-help. The
right of private defence appears at first sight to be an
obvious example of this. But it is not so, for there is no
question of remedy in such a case. We are allowed to

repel force by force "not for the redress of injuries, but

for their prevention" not in order to undo a wrong
(c) ;

done or to get compensation for it, but to cut wrong short

before it is done ; and the right goes only to the extent

necessary for this purpose. Hence there is no more to be

said of self-defence, in the strict sense, in this connexion.
It is only when the party's lawful act restores to him
something which he ought to have, or puts an end to a
state of things whereby he is wronged, or at least
puts
pressure on the wrong-doer to do him right, that self-help
is a true remedy. And then it is not necessarily a com-

plete or exclusive remedy. The acts of this nature which

we meet with in the law of torts are expulsion of a
trespasser, retaking ofgoods by the rightful possessor, dis-
tress damage feasant, and abatement of nuisances. Peace-

able re-entry upon land where there has been a wrongful

change of possession is possible, but hardly occurs in

modern experience. Analogous to the right of retaking

goods is the right of appropriating or retaining debts

under certain conditions; and various forms of lien are
more or less analogous to distress. These, however, be-
long to the domain of contract, and we are not now

(c) This is well noted in Cooley on Torts, 50.

M2
164 REMEDIES FOR TORTS.

concerned with them. Such are the species of remedial

self-help recognized in the law of England. In every

case alike the right of the party is subject to the rule that
no greater must be used, or damage done to property,
force
than is necessary for the purpose in hand. In some cases
the of exercising the right has been specially modi-
mode
fied or regulated. Details will best be considered hereafter
in relation to the special kinds of wrong to which these
kinds of redress are applicable (d) .

Judicial We pass, then, from extra-judicial to judicial redress,

damages, from remedies by the act of the party to remedies by the

act of the law. The most frequent and familiar of these
isthe awarding of damages (e). Whenever an actionable

wrong has been done, the party wronged is entitled to

recover damages ;though, as we shall immediately see,

this right is not necessarily a valuable one. His title to
recover is a conclusion of law from the facts determined in
the cause. How much he shall recover is a matter of
judicial discretion, a discretion exercised, if a jury tries the
cause, by the jury under the guidance of the judge. As
we have had occasion to point out in a former chapter (/),
the rule as to " measure of damages
"
is laid down by the

Court and applied by the jury, whose application of it is,

to a certain extent, subject to review. The grounds on
which the verdict of a jury may be set aside are all

reducible to this principle : the Court, namely, must be

satisfied not only that its own finding would have been
different (for there is a wide field within which opinions
and estimates may fairly differ) (g), but that the jury did

(d) Cp. Blackstone, Bk. iii. c. 1. work as "Mayne on Damages."

It is hardly needful to refer
(e) (/) P. 27 above.
the reader for fuller illustration of (^) The principle is familiar.
the subject to so well known a See it stated, e.g. 5 Q. B. Div. 85.
 DAMAGES. 165

not exercise a due judicial discretion at all (yy). Among

these grounds are the awarding of manifestly excessive or

manifestly inadequate damages, such as to imply that the

jury disregarded, either by excess or by defect, the law laid
down to them as to the elements of damage to be con-
sidered (A), or, it may be, that the verdict represents a

compromise between jurymen who were really not agreed

on the main facts in issue (').

Nominal
Damages may be nominal, ordinary, or exemplary.
Nominal damages are a sum of so little value as compared
with the cost and trouble of suing that it may be said to
have "no existence in point of quantity" (#), such as a
shilling or a penny, which sum is awarded with the pur-
pose of not giving any real compensation. Such a verdict
means one of two things. According to the nature of the
case it may be honourable or contumelious to the plaintiff.
Either the purpose of the action is merely to establish a
right, no substantial harm or loss having been suffered, or
else the jury,while unable to deny that some legal wrong j .

has been done to the plaintiff, have formed a very low

opinion of the general merits of his case. This again may

be on the ground that the harm he suffered was not worth

suing for, or that his own conduct had been such that
whatever he did suffer at the defendant's hands was
morally deserved. The former state of things, where the
verdict really operates as a simple declaration of rights
between the parties, is most commonly exemplified in
actions of trespass disputed claims to
brought to settle

rights of way, rights of common, and other easements

(gg] See Metropolitan E. Go. v. aside on the ground of the damages

Wright (1886) 11 App. Ca. 152. being insufficient.

(A) Phillips v. L. $ S. W. E. Co. (i) Fahey v. Stanford (1874) L.

(1879) 5 Q. B. Div. 78, 49 L. J. R. 10 Q. B. 54, 44 L. J. Q. B. 7.
Q. B. 233, where, on the facts (k) Maule J. 2 C. B. 499.

shown, a verdict for 7000. was set

166 REMEDIES FOR TORTS.

and profits. It is not uncommon to give forty shillings

damages in these cases if the plaintiff establishes his right,

and if it is not intended to express any disapproval of his
conduct (/) The other kind of award of nominal damages,
.

where the plaintiff's demerits earn him an illusory sum

such as one farthing, is illustrated chiefly by cases of
defamation, where the words spoken or written by the
defendant cannot be fully justified, and yet the plaintiff
has done so much to provoke them, or is a person of such

generally worthless character, as not to deserve, in the

opinion of the jury, any substantial compensation (m).
This has happened more than once in actions against the
publishers of newspapers which were famous at the time,
but have not found a place in the regular reports.

Nominal The enlarged power of the Court over costs since the
damages
possible Judicature Acts has made the question of nominal damages,
only when "
an abso- which, under the old procedure, were described as a mere
lute right
is in- peg on which to hang costs "(ft), much less important
fringed. than it formerly was. But the possibility of recovering

(I) Under the various statutes as dict, refused to disturb it.

to costs which were in force before (n) ByMaule J. (1846), in Beau-

the Judicature Acts, 40s. was, mont v. Greatheacl, 2 C. B. 499.
subject to a few exceptions, the Under the present procedure costs
least amount of damages which are in the discretion of the Court ;

carried costs without a special the costs of a cause tried by jury

certificatefrom the judge. Fre- follow the event (without regard
quently juries asked before giving to amount of damages) unless the
their verdict what was the least judge or the Court otherwise
sum that would carry costs the : orders : Order LXV. r. 1, &c.
general practice of the judges was The effect of the Judicature Acts
to refuse this information. and Rules of Court in abrogating

(m} Kelly v. Sherlock (1866) L. R. the older statutes was settled in

1 Q. B. 686, 35 L. J. Q. B. 209, is 1878 by Garnett v. Bradley, 3 App.
a case of this kind where, notwith- Ca. 944, 48 L. J. Ex. 186. A
standing that the libels sued for sketch of the history of the subject
were very gross, the jury gave a is given in Lord Blackburn's judg-
farthing damages, and the Court, ment, pp. 962, sqq.
though not satisfied with the ver-
 NOMINAL DAMAGES. 167

nominal damages is still a test, to a certain extent, of the

nature of the right claimed. Infringements of absolute

rights like those of personal security and property give a

cause of action without regard to the amount of harm

done, or to there being harm estimable at any substantial

sum at all. As Holt C. J. said in a celebrated passage of
" a
his judgment in Ashby v. White (o), damage is not merely

pecuniary, but an injury imports a damage, when a man is

thereby hindered of his right. As in an action for slan-

derous words, though a man does not lose a penny by
reason of the speaking them, yet he shall have an action.
So if a man gives another a cuff on the ear, though it cost
him nothing, no not so much as a little diachylon, yet he
shallhave his action, for it is a personal injury. So a man
shall have an action against another for riding over his

ground, though do him no damage for it is an invasion

it ;

of his property, and the other has no right to come there."

On the other hand, there are cases even in the law of Cases

property where, as it is the gist of the damage is

said, damage is

action, and there is not an absolute duty to forbear from jjjj^ ^

doing a certain thing, but only not to do it so as to cause
actual damage. The
right to the support of land as
between adjacent owners, or as between the owner of the
surface and the owner of the mine beneath, is an example.
Here there is not an easement, that
a positive right to is,

restrain the neighbour's use of his land, but a right to the

undisturbed enjoyment of one's own. neighbour may My
excavate in his own land as much
he pleases, unless and
as

until there is actual damage to mine then, and not till :

then, a cause of action arises for me (p). Negligence,

(0) 2 Lord Raym. at p. 955. Mitchell v. Darley Main Colliery Co.

(p) Backhouse v. Bonomi (1861) (1885) 11 App. Ca. 127.

9 H. L. C. 503, 34 L. J. Q. B. 181 ;
168 REMEDIES FOR TORTS.

again, isa cause of action only for a person who suffers

actual harm by reason of it. A
man who rides furiously
in the street of a town may thereby render himself liable

to penalties under a by-law but he does

local statute or ;

no wrong to any man in particular, and is not liable to a

civil action, so long as his reckless behaviour is not the

cause of specific injury to person or property. The same

rule holds of nuisances. So, in an action of deceit, the
cause of action the plaintiff's having suffered damage by
is

acting on the false statement made to him by the defen-

dant (q) . In all these cases there can be no question of
nominal damages, the proof of real damage being the
foundation of the plaintiff's right. happen, of It may
course, that though there is real damage there is not much
of it, and that the verdict is accordingly for a small
amount. But the smallness of the amount will not make
such damages nominal they are arrived at by a real
if

estimate of the harm suffered. In a railway accident due

to the negligence of the railway company's servants one
man may be crippled for life, while another is disabled for
a few days, and a third only has his clothes damaged to
the value of five shillings. Every one of them is entitled,
neither more or less than the others, to have amends
according to his loss.

Peculia-
i
"\
In the law of slander we have a curiously fine line
**

of defama- between absolute and conditional a legal remedy

title to ;

kinds of spoken defamation being actionable without

any allegation or proof of special damage (in which case

the plaintiff is entitled to nominal damages at least), and
others not ; while as to written words no such distinction

(q) Pontifex v. JBignold, 3 M. & action of deceit. But careful ex-

Gr. 63, sometimes quoted as if
is amination will show that it is far
it were an authority that no actual from deciding this.

damage is necessary to sustain an

 MEASURE OF DAMAGES. 169

is made. The attempts of text-books to give a rational

theory of this are not satisfactory. Probably the existing

condition of the law is the result of some obscure historical
accident (r).

Ordinary damages are a sum awarded as a fair measure QJ

of compensation to the plaintiff, the amount being, as near
as can be estimated, that by which he is the worse for the
defendant's wrong- doing, but in no case exceeding the
amount claimed by the plaintiff himself (s) Such amount .

is not necessarily that which it would cost to restore the

plaintiff to his former condition. Where a tenant for

years carried away a large quantity of valuable soil from
his holding, it was decided that the reversioner could
recover not what it would cost to replace the soil, but only

the amount by which the value of the reversion was

diminished (t) In other words cojaapfijisation, not restiVj
.

tution, is the proper test. Beyond this it is hardly

possible to lay down any
universal rule for ascertaining
the amount, the causes and circumstances of actionable

damage being infinitely various. And in particular classes

of cases only approximate generalization is possible. In

proceedings for the recovery of specific property or its

value there is not so much

assigning a
difficulty in

measure of damages, though here too there are unsettled

points (u). But in cases of personal injury and conse-
(r) See more in Ch. VII. below. equity which sometimes exer-
is

(*) A
jury has been known to cised by juries:" Cotton L. J.,
find a verdict for a greater sum Dreyfus v. Peruvian Guano Co.
than was claimed, and the judge (1889) 43 Ch. Div. 316, 327.
to amend the statement of claim (t) Whitham v. Kershaw (1885-6)
to enable himself to give judgment 16 Q. B. Div. 613 ; cp. Rust v.
for that greater sum. But this is Victoria Graving Dock Co. (1887)
an extreme use of the power of 36 Ch. Div. 113 Chifferielv. Wat-
;

the Court, justifiable only in an son (1888) 40 Ch. D. 45, 58 L. J.

" It will not Ch. 137 (compensation under con-
extraordinary case.
do for Mr. Justice Kay, or for this ditions of sale) .

Court, to exercise that unknown (u) See Mayne on Damages, c. 13.

170 REMEDIES FOR TORTS.

quential damage by loss of gains in a business or profession

it isnot possible either completely to separate the elements
of damage, or to found the estimate of the whole on any-

thing like an exact calculation (a?) There is little doubt

.

that in fact the process is often in cases of this class even

a rougher one than appears to be, and that legally
it

irrelevant circumstances, such as the wealth and condition

in life of the parties, have much influence on the verdicts
of juries a state of things which the law does not recog-
:

nize, but practically tolerates within large bounds.

Exem- One step more, and we come to cases where there is

plary da-
mages, great injury without the possibility of measuring compen-
sation by any numerical rule, and juries have been not

only allowed but encouraged to give damages that express

indignation at the defendant's wrong rather than a value
set upon the Damages awarded on this
plaintiff's loss.

principle are called exemplary or vindictive. The kind of

wrongs to which they are applicable are those which,
besides the violation of a right or the actual damage,
import insult or outrage, and so are not merely injuries
but iniuriae in the strictest Roman sense of the term.
The Greek vfyu perhaps denotes with still greater exactness
the quality of the acts which are thus treated. An assault
and false imprisonment under colour of a pretended right
in breach of the general law, and against the liberty of the
subject (y) ;
a wanton trespass on land, persisted in with

(x) See the summing-up of Field the plaintiff was detained about
J. in Phillips v. L. $ S. W. R. Co. six hours and civilly treated,
" entertained with beef -steaks and
(1879) 5 Q. B. Div. 78, 49 L. J.
Q. B. 233, which was in the main beer," but the jury was upheld
approved by the Court of Appeal. in giving 300/. damages, because

(y} Huckle v. Money (1763) 2 "it was a most daring public

Wils. 205, one of the branches of attack made upon the liberty of
the great case of general warrants : the subject."
 EXEMPLARY DAMAGES. 171

violent and intemperate behaviour (z) ;

the seduction of a
man's daughter with deliberate fraud, or otherwise under
circumstances of aggravation (a) such are the acts which,
;

with the open approval of the Courts, juries have been in

the habit of visiting with exemplary damages. Gross de-
famation should perhaps be added but there ;
it is rather

that no definite principle of compensation can be laid

down than that damages can be given which are distinctly
not compensation. It is not found practicable to interfere
with juries either way (&), unless their verdict shows
manifest mistake or improper motive. There are other
miscellaneous examples of an estimate of damages coloured,
so to speak, by disapproval of the defendant's conduct (and
in the opinion of the Court legitimately so), though it
be not a case for vindictive or exemplary damages in the
proper sense. In an action for trespass to land or goods

substantial damages may be recovered though no loss or

diminution in value of property may have occurred (c)

.

In an action for negligently pulling down buildings to an

adjacent owner's damage, evidence has been admitted that
the defendant wanted to disturb the plaintiff in his occu-

pation, and purposely caused the work to be done in a

reckless manner : and it was held that the judge might
properly authorize a jury to take into consideration the
words and conduct of the defendant " showing a contempt

(z)
Merest v. Harvey (1814) 5 (a) Tullidge v. Wade (1769) 3
Taunt. 442: the defendant was "Wils. 18: "Actions of this sort
drunk, and passing by the plain- are brought for example's sake."
tiff's land on which the plaintiff (V) See Forsdike v. Stone (1868)

was shooting, insisted, with oaths L. R. 3 C. P. 607, 37 L. J. C. P.

and threats, on joining in the sport; 301, where a verdict for Is. was
a verdict passed for 500., the full not disturbed, though the imputa-
amount claimed, and it was laid tion was a gross one.
down that juries ought to be al- (c} Per Denman C. J. in Ex.
lowed to punish insult by exemplary Ch., Rogers M.
v. Spence, 13 & W.
damages. at p. 581, 15 L. J. Ex, 49.
172 REMEDIES FOR TORTS.

of the plaintiff's rights and of his convenience" (d). Sub-

damages have been allowed for writing disparaging
stantial

words on a paper belonging to the plaintiff, although there

was no publication of the libel (e).
" It is universally felt by all persons who have had occa-
sion to consider the question of compensation, that there is

a difference between an injury which is the mere result of

such .negligence as amounts to little more than accident,
and an injury, wilful or negligent, which accompanied is

with expressions of insolence. I do not say that in actions

of negligence there should be vindictive damages such as
are sometimes given in actions of trespass, but the measure
of damage should be different, according to the nature of
the injury and the circumstances with which it is accom-
"
panied (/).
The case now cited was soon afterwards referred to by
Willes J. as an authority that a jury might give ex-
emplary damages, though the action was not in trespass,
from the character of the wrong and the way in which it

was done (g).

Analogy The
action for breach of promise of marriage, being an
of breach
of pro- action of contract, is not within the scope of this work ;
mise of
but has curious points of affinity with actions of tort in
it
marriage
to torts in its treatment and incidents one of which is that a very
;
this re-
spect. large discretion is given to the jury as to damages (h).

Mitiga- As damages may be aggravated by the defendant's ill-

(d] Emblen v. Myers (1860) 6 H. (g} Bell v. Midland E. Co. (1861)

& N. 54, 30 L. J. Ex. 71. 10 C. B. N. S. 287, 307, 30 L. J.
(e) Wennhak v. Morgan (1888) 20 C. P. 273, 281.
Q. B. D. 635, 57 L. J. Q. B. 241. (h) See, e. g. , Berry v. Da Costa

(/) Pollock C. B. 6 H. & N. 58, (1866) L. R. 1 C. P. 331, 35 L. J.

30 L. J. Ex. 72. Cp. per Bowen C. P. 191 and the last chapter of
;

L. J. in Whitham v. Kershaw (1886) the present work, ad Jin.

16 Q. B. Div. at p. 618.
 DISTINCT CAUSES OF ACTION. 173

behaviour or motives, so they may be reduced by proof of tion of

provocation, or of having acted in good faith

his and :

many kinds of circumstances which will not amount to

justification or excuse are for this purpose admissible and

" In cases where motive may be ground of
material. all

aggravation, evidence on this score will also be admissible

in reduction of damages "('). For the rest, this is an
affair of common knowledge and practice rather than of
reported authority.

"Damages resulting from one and the same cause of Concur-

"
action must be assessed and recovered once for all ;
but sever-

where the same facts give rise to two distinct causes of

action, though between the same parties, action and judg- action.

ment for one of these causes will be no bar to a subsequent

action on the other. A man who has had a verdict for
personal injuries cannot bring a fresh action if he afterwards
finds that his hurt was graver than he supposed. On the
other hand, trespass to goods is not the same cause of action
as trespass to the person, and the same principle holds of
injuries caused not by voluntary trespass,but by negli-
gence; therefore where the plaintiff, driving a cab, was
run down by a van negligently driven by the defendant's
servant, and the cab was damaged and the plaintiff suffered

bodily harm, it was held that after suing and recovering

for the damage to the cab the plaintiff was free to bring a

separate action for the personal injury(&). Apart from

questions of form, the right to personal security certainly
seems distinct in kind from the right to safe enjoyment
of one's goods, and such was the view of the Eoman

lawyers (I).

(i) Mayne on Damages, 100 L. J., diss. Lord Coleridge C. J.

(3rd ed.). Cp. per Lord Bramwell, 11 App.

(k) Brunsden v. Humphrey (1884) Ca. at p. 144.
14 Q. B. Div. 141, 53 L. J. Q. B. (I) Liber homo suo nomine
476, by Brett M. R. and Bowen utilem Aquiliae habet actionem :
174 REMEDIES FOR TORTS.

Injunc- Another remedy which is not, like that of

damages,
universally applicable, but which is applied to many kinds
of wrongs where the remedy of damages would be in-

adequate or practically worthless, is the granting of an

injunction to restrain the commission of wrongful acts
threatened, or the continuance of a wrongful course of
action already begun. There is now no positive limit to
the jurisdiction of the Court to issue injunctions, beyond
the Court's own view (a judicial view, that is) of what is

just and convenient (m). Practically, however, the lines of

the old equity jurisdiction have thus far been in the main

preserved. The kinds of tort against which this remedy is

commonly sought are nuisances, violations of specific rights
of property in the nature of nuisance, such as obstruc-
tion of light and disturbance of easements, continuing

trespasses, and infringements copyright and trade-

of

marks. In one direction the High Court has, since the

Judicature Acts, distinctly accepted and exercised an
increased jurisdiction. It will now restrain, whether by
final (n) or interlocutory (o) injunction, the publication of

a libel or, in a clear case,

the oral uttering of slander (p)
calculated to injure the plaintiff in his business in inter- :

locutory proceedings, however, this jurisdiction is exercised

with caution (o).

On what The special rules and principles by which the Court is

granted, guided in administering this remedy can be profitably
directam enim non habet, quoniam at p. 507.
dominus membrorum suorum nemo (n) Thorley's Cattle Food Co. v.
videtur: Ulpian, D. 9. 2, ad 1. Massam 14 Ch. Div. 763;
(1880)
Aquil. 13 pr. Thomas v. Williams, ib. 864.
(m) Judicature Act, 1873, s. 25, (o) Quartz Hill Consolidated Gold
sub-s. 8. Per Jessel M. R., Bed- Mining Co. v. Beatt (1882) 20 Ch.
dow v. Beddow (1878) 9 Ch. D. 89, Div. 501, 51 L. J. Ch. 874.
93, 47 L. J. Ch. 588; Quartz Hill (p) Hermann Loogv. Bean (1884)
$c. Co. v. Beall (1882) 20 Ch. Div. 26 Ch. Div. 306, 53 L. J. Ch. 1128.
 INJUNCTIONS. 175

discussed only in connexion with the particular causes of

action upon which it is sought. All of them, however, are

developments of the one general principle that an injunc-

tion is granted only where damages would not be an

adequate remedy, and an interim injunction only where

delay would make it impossible or highly difficult to do
complete justice at a later stage (q). In practice very
many causes were in the Court of Chancery, and still are,
really disposed of on an application for an injunction which
is in form interlocutory : the proceedings being treated as
final by consent, when it appears that the decision of the
interlocutory question goes to the merits of the whole case.

In certain cases of fraud (that Former

is, wilfully or recklessly
concurrent
false representation of fact) the Court of Chancery had jurisdic-

before the Judicature Acts concurrent jurisdiction with

common and would award pecuniary law ^nd
the courts of law,
compensation, not in the name of damages, indeed, but by give corn-

way of "making the representation good" (r).

restitution or for fraud.

In substance, however, the relief came to giving damages

under another name, and with more nicety of calculation
than a jury would have used. Since the Judicature Acts
it does not appear to be material whether the relief
administered in such a case be called damages or restitution ;
unless indeed it were contended in such a case that (accord-

ing to the rule of damages as regards injuries to pro-

perty) (s) the plaintiff was entitled not to be restored to his

(q)
In Mogul Steamship Co. v. is dealt with elsewhere.
M'Gregor, Gow $ Co. (1885) 15 Burrowes v. Lock (1805) 10
(r)

Q. B. D. 476, 54 L. J. Q. B. 540, Ves. 470 Slim v. Cromher (1860)

;

the Court refused to grant an in- 1 D. F. J. 518, 29 L. J. Ch. 273 ;

terlocutory injunction to restrain Peek v. Gurney (1871-3) L. E-. 13

a course of conduct alleged to Eq. 79, 6 H. L. 377, 43 L. J. Ch.
amount to a conspiracy of rival 19. See under the head of Deceit,
shipowners to drive the plaintiffs' Ch. VIII. below.
ships out of the China trade. The (s) Jones v. Gooday (1841) 8 M.
decision of the case on the merits & "W. 146, 10 .L. J. Ex. 275 ;
176 REMEDIES FOR TORTS.

former position or have his just expectation fulfilled, but

only to recover the amount by which he is actually the
worse for the defendant's wrong-doing. Any contention
of that kind would no doubt be effectually excluded by
the authorities in equity but even without them it would
;

scarcely be a hopeful one.

Special Duties of a public nature are constantly defined or

statutory
remedies, created by statute, and generally, though not invariably,
exclusive, special modes of enforcing them are provided by the same
statutes. Questions have arisen as to the rights and
remedies of persons who suffer special damage by the breach
or non-performance of such duties. Here it is material
(though not necessarily decisive) to observe to whom and
in what form the specific statutory remedy is given. If
the Legislature, at the same time that it creates a new

duty, points out a special course of private remedy for the

person aggrieved (for example, an action for penalties to

be recovered, wholly or in part, for the use of such person),
then generally presumed that the remedy so provided
it is

was intended to be, and is, the only remedy. The pro-
vision of a public remedy without any special means of

private compensation is in itself consistent with a person

specially aggrievedhaving an independent right of action

for injury caused by a breach of the statutory duty (t).

Wigsell v. School for Indigent Blind been fictitious) at the date of allot-
(1882) 8 Q. B. D. 357, 51 L. J. ment Peek v. Derry (1887) 37 Ch.
:

Q. B. 330; Whitham v. Kershaw Div. 591, 57 L. J. Ch. 347.

(1885-6) 16 Q. B. Div. 613. In (t) Ross v. Rugge-Price (1876) 1

an action for inducing the plaintiff Ex. D. 269, 45 L. J. Ex. 777 but :

by false statements to take shares qu. whether this case can now be
in a company, it is said that the relied on it was decided partly on
;

measure of damages is the dif- the authority of Atkinson v. New-

ference between the sum paid for castle Waterworks Co. (1871) L. R.

the shares and their real value (the 6 Ex. 404, afterwards reversed in
market value may, of course, have the Court of Appeal (see below).
 STATUTORY DUTIES. 177

And has been thought to be a general rule that where

it

the statutory remedy is not applicable to the compensation

of a person injured, that person has a right of action (w).
But the Court of Appeal has repudiated any such fixed
rule, and has laid down that the possibility or otherwise of
a private right of action for the breach of a public statu-

tory duty must depend on the scope and language of the

statute taken as a whole. A
waterworks company was
bound by the Waterworks Clauses Act, 1847, incorporated
in the company's special Act, to maintain a proper
pressure in its pipes, under certain public penalties. It
was held that an inhabitant of the district served by the
company under this Act had no cause of action against
the company for damage done to his property by fire by
reason of the pipes being insufficiently charged. The
Court thought it unreasonable to suppose that Parliament
intended to make the company insurers of all property
that might be burnt within their limits by reason of
deficient supply or pressure of water (v) .

Also the harm in respect of which an action is brought No private

redress
for the breach of a statutory duty must be of the kind unless the
which the statute was intended to prevent. If cattle being harm is
suffered
carried on a ship are washed overboard for want of appli- within the
mischief
ances prescribed by an Act of Parliament for purely aimed at
by the
sanitary purposes, the shipowner is not liable to the owner statute.

(u) Couch v. Steel (1854) 3 E. & vate rights enforceable by action ;

B. 402, 23 L. J. Q. B. 121. Vestry of St. Pancras v. Batterbury

(v) Atkinson v. Newcastle Water- (1857) 2 C. B. N. S. 477, 26 L. J.
works Co. (1877) 2 Ex. Div. 441, C. P. 243, where a statutory pro-
46 L. J. Ex. 775. Cp. Stevens v. vision for recovery by
summary
Jeacocke (1847) 11 Q. B. 731, 17 proceedings was held to exclude
L. J. Q. B. 1 63, where it was held any right of action (here, however,
that the local Act regulating, under no private damage was in ques-
penalties, the pilchard fishery of St. tion) and Vallance v. Falle (1884)
;

Ives> Cornwall, did not create pri- 13 Q. B. D. 109, 53 L. J. Q. B. 459.

P. N
178 REMEDIES FOR TORTS.

of the cattle by reason of the breach of the statute (x) :

though he will be liable if his conduct amounts to negli-

gence apart from the statute and with regard to the duty
of safe carriage which he has undertaken (y), and in an
action not founded on a statutory duty the disregard of
such a duty, if likely to cause harm of the kind that has
been suffered, may be a material fact (z).

Joint Where more than one person is concerned in the com-

wrong-
doers may mission of a wrong, the person wronged has his remedy
be sued
jointly or against all or any one or more of them at his choice.
severally :

Every wrong-doer whole damage, and it

is liable for the
does not matter (as we saw above) (a), whether they acted,
as between themselves, as equals, or one of them as agent
or servant of another. There are no degrees of responsi-
bility, nothing answering to the distinction in criminal law
but judg- between principals and accessories. But when the plaintiff
ment
against in such a case has made his choice, he is concluded by it.

any is bar
to further
After recovering judgment against some or one of the
action.
joint authors of a wrong, he cannot sue the other or
others for the same matter, even ifthe judgment in the
first action remains unsatisfied. By that judgment the
cause of action "transit in rem iudicatam," and is no
longer available (I}. The reason of the rule is stated to
be that otherwise a vexatious multiplicity of actions would
be encouraged.

Rules as As between who

to contri- joint wrong-doers themselves, one has

(x) Gorris v. Scott (1874) L. R. 9 Ex. Ch. L. R. 7 C. P. 547, 41 L. J.

Ex. 125, 43 L. J. Ex. 92. C. P. 190, finally settled the point.
(y) See per Pollock B. at p. 131. It was formerly doubtful whether

(z) Blamires v. Lane, and York- judgment without satisfaction was

shire . Ex. Ch. L. R.
Co. (1873) a bar. And in the United States
8 Ex. 283, 42 L. J. Ex. 182. it seems to be generally held that
(a) Page 66. it is not Cooley on Torts, 138, and
:

(b) Brim-mead v. Harrison (1872) see L. R. 7 C. P. 549.

 CONTRIBUTION BETWEEN WRONG-DOERS. 179

been sued alone and compelled to pay the whole damages bution and

has no right to indemnity or contribution from the

other (c), if the nature of the case is such that he "must
be presumed to have known that he was doing an unlawful
act" (d). Otherwise, "where the matter is indifferent in
itself," and the wrongful act is not clearly illegal (<?),
but
may have been done in honest ignorance, or in good faith
to determine a claim of right, there is no objection to
"
contribution or indemnity being claimed. Every man
who employs another an act which the employer
to do

appears to have a right to authorize him to do undertakes

to indemnify him for all such acts as would be lawful if
the employer had the authority he pretends to have."
Therefore an auctioneer who in good faith sells goods in
the way on behalf of a person who turns
of his business
out to have no right to dispose of them is entitled to be
indemnified by that person against the resulting liability
to the true owner (/) And persons intrusted with goods
.

as wharfingers or the like who stop delivery in pursuance

of their principal's instructions may claim
indemnity if the
stoppage turns out to be wrongful, but was not obviously
so at the time (g). In short, the proposition that there is
no contribution between wrong-doers must be understood
to affect only those who are wrong- doers in the common
sense of the word as well as in law. The wrong must be
so manifest that the person doing it could not at the time

reasonably suppose that he was acting under lawful autho-

rity. Or, to put it summarily, a wrong-doer by misadven-

(c) Herryweatherv. Nixan (1799) Bing. 66, 72. The ground of the
8 T. R.
186, where the doctrine is action for indemnity may be either
too widely laid down. deceit or warranty see at p. 73.
:

(d) Adamson v. Jarvis, 4 Bing. (g) Setts v. Gibbins (1834)

2 A.
at p. 73. & E. 57. See too Collins v. Evans
(e) Setts v. Gibbins, 2 A. & E. 57. (1844) (Ex. Ch.) 5 Q. B. at p. 830,
(/) Adamson v. Jarvis (1827) 4 13 L. J. Q. B. 180.

N2
180 REMEDIES FOR TORTS.

fr m under whose
V
& Wllf ul OP

negligent (fi) wrong -doer has no claim to contribution or

indemnity. There does not appear any reason why con-
tribution should not be due in some cases without any
relation of agency and authority between the parties. If
several persons undertake in concert to abate an obstruc-
tion to a supposed highway, having a reasonable claim of

right and acting in good faith for the purpose of trying

the right, and it turns out that their claim cannot be main-

tained, seems contrary to principle that one of them

it

should be compellable to pay the whole damages and costs

without any recourse over to the others. I cannot find,
however, that any decision has been given on facts of this
kind ;
nor is the question very likely to arise, as the

partieswould generally provide for expenses by a subscrip-

tion fund or guaranty.

Supposed It has been currently said, sometimes laid down, and

rule of
trespass once or twice acted on as established law, that when the
^ ac^s affording a cause of action in tort are such as to
"Emerged
mfelony." amoun t to a felony, there is no civil remedy against the
felon (i)
for the wrong, at all events before the crime has
been prosecuted to conviction. And as, before 1870 (/), a

(h) I am not sure that authority has not bought in market overt,
covers this. But I do not think whether the thief has been prose-
an agent could claim indemnity cuted or not Marsh v. Keating
:

for acts which a reasonable man in (1834) 1 Bing. N. C. 198, 217;

his place would know to be beyond White v. Spettigue (1845) 13 M. &
the lawful power of the principal. W. 603, 14 L. J. Ex. 99. In these
See Indian Contract Act, s. 223. cases indeed the cause of action is
(i) It
is settled that there is no not the offence but some-
itsfelf,
rule to prevent the suing of a which
thing else wrongful be-
is

person who was not party or privy cause an offence has been com-
to the felony. Stolen goods, or mitted.
their value, e. g. can be recovered
(j) 33 & 34 Viet. c. 23.
from an innocent possessor who
 TRESPASS AND FELONY. 181

convicted felon's property was forfeited, there would at

common law be no effectual remedy afterwards. So that
the compendious form in which the rule was often stated,
that " the trespass was merged in the felony," was sub-

stantially if not technically correct. But so much doubt

has been thrown upon the supposed rule in several recent
cases, that it seems, if not altogether exploded, to be only

awaiting a decisive abrogation. The result of the cases in

question is that, although it is difficult todeny that some

such rule exists, the precise extent of the rule, and the
reasons of policy on which it is founded, are uncertain, and
it is not known what is the proper mode of applying it.

As to the rule, the best supported version of it appears to

be to this effect : Where the same facts amount to a felony

and are such as in themselves would constitute a civil wrong,
a cause of action for the civil wrong does arise. But the
remedy not available for ja person who might have pro-
is

secuted the wrong-doer for the felony, and has failed to do

so. The plaintiff ought to show that the felon has actually
been prosecuted to conviction (by whom it does not matter,
nor whether it was for the same specific offence), or that

prosecution is impossible (as by the death of the felon or

hisimmediate escape beyond the jurisdiction), or that he

has endeavoured to bring the offender to justice, and has
failed without any fault of his own (k).

It is admitted that when any of these conditions is No known

satisfied there is both a cause of action and a presently enforcing
available remedy. But if not, what then ? It is said to
exists.
be the duty of the person wronged to prosecute for the ifc

" but
felony before he brings a civil action by what ;

(k) See the judgment of Bag- difficulties see per Bramwell L. J.,
gallay L. J. in Ex parte Ball (1879) ib. at p. 671.
10 Ch. Div. at p. 673. For the
182 REMEDIES FOR TORTS.

means that duty is to be enforced, we are nowhere in-

formed" (/). Its non-performance is not a defence which
can be set up by pleading (m) nor ,
is a statement of claim
bad for showing on the face of it that the wrongful act
was felonious Neither can the judge nonsuit the
(n).

plaintiff if this does not appear on the pleadings, but comes

out in evidence at the trial (0) It has been suggested
.

that the Court might in a proper case, on the application

of the Crown or otherwise, exercise its summary jurisdic-
tion to stay proceedings in the civil action (p) : but there
isno example of this. Whatever may be the true nature
and incidents of the duty of the wronged party to
prosecute, it is a personal one and does not extend to a
trustee in bankruptcy (q) 9 nor, it is conceived, to executors
in the cases where executors can sue. On the whole there
isapparent in quarters of high authority a strong though
not unanimous disposition to discredit the rule as a mere
cantilena of text-writers founded on ambiguous or misap-
prehended cases, or on dicta which themselves were open
to the same objections (r).
At the same time it is certain

(I) Lush
J., Wells v. Abrahams Cox, 566, it was said
v. 8. (1882) 16

(1872) L. R. 7 Q. B. at p. 563. that, in a proper case, the Court

(m) Blackburn J. ibid. might stay the action of its own
(ri) Roopev. D'Aviydor (1883)
10 motion; and one member thought
Q. B. D. 412, cp. Midland Insur- the case before them a proper one,
ance Co. v. Smith (1881) 6 Q. B. D. but the majority did not.
561, 50 L. J. Q. B. 329. (?) Ex parte Ball (1879) 10 Ch.
(0} Wells v. Abrahams (1872) L. D. 667, 48 L. J. Bk. 57.
B. 7 Q. B. 554, 41 L. J. Q. B. See the historical discussion
(r)

306, dissenting from Wellock v. in the judgment of Blackburn J.

Constantine (1863) 2 H. & C. 146 in Wells v. Abrahams, L. R. 7
32 L. J. Ex. 285, a very indecisive Q. B. 560, sqq. And see per
case,but the nearest approach to Maule J. in Ward
Lloyd (1843) v.
an authority for the enforcement 7 Scott N. R. 499, 507, a case of
of the supposed rule in a court of alleged compounding of felony :
common law. ''
It would be a strong thing to

(p] Blackburn J., L. R. 7 Q. B. say that every man is bound to

at p. 559. In a late Irish case, S. prosecute all the felonies that come
 LOCAL EXTENT OF JURISDICTION. 183

that the judges consulted by the House of Lords in

Marsh Keating () thought such a rule existed, though
v.

it was not applicable to the case in hand; and that in

Ex parte Elliott (f] it was effectually applied to exclude a

proof in bankruptcy.

Lastly we have to see under what conditions there may Locality

be a remedy in an English court for an act in the nature fui act as
of a tort committed in a place outside the territorial juris-

diction of the court. It is needless to state formally that

. .
court.
no action can be maintained in respect of an act which is

justified or excused according to both English and local

law. Besides this obvious case, the following states of

things are possible.

1. The act may be such that, although it may be Acts not

wrongful
wrongful by the local law, it would not be a wrong if by English
done in England. In this case no action lies in an
English court. The court will not carry respect for a
"
foreign municipal law so far as to give a remedy in the
shape of damages in respect of an act which, according to
its own principles, imposes no liability on the person from
whom the damages are claimed" (u).

2. The act, though in itself it would be a trespass by Actsjusti-

the law of England, may be justified or excused by the local law.

local law. Here no remedy in an English

also there is

court (#).
And it makes no difference whether the act

to his knowledge ;
and I do not (s)
1 Bing. N. C. 198, 217 (1834).
know why it, is the duty of the (<) Mont. & A. 110 (1837).
3

party who suffers by the felony to (u) The Halley (1868) L. R. 2

prosecute the felon, rather than P. C. 193, 204, 37 L. J. Adm. 33 ;

that of any other person: on the TheM.Moxham(1876) IP. Div. 107.

contrary, it is a Christian duty to (x) Blades Case, Blad v. Bamfield

forgive one's enemies and I think

;
(1673-4) in P. C. and Ch., 3
he does a very humane and charit- Swanst. 603-4, from Lord Not-
able and Christian-like thing in tingham's MSS. ;
The M. Moxham,
abstaining from prosecuting." 1 P. Div. 107.
184 REMEDIES FOR TORTS.

was from the first justifiable by the local law, or, not
being
at the time justifiable, was afterwards ratified or excused
by a declaration of indemnity proceeding from the local

sovereign power. In the well-known case of Phillips v.

Eyre (?/), where the defendant was governor of Jamaica at
the time of the trespasses complained of, an Act of indem-

nity subsequently passed by the colonial Legislature was

held effectual to prevent the defendant from being liable
in an action for assault and false imprisonment brought in

England. But nothing less than justification by the local

law will do. Conditions of the lex fori suspending or
delaying the remedy in the local courts will not be a bar
to the remedy in an English court in an otherwise proper
case (z). And our courts would possibly make an excep-
tion to the rule if it appeared that by the local law there
was no remedy at all for a manifest wrong, such as assault
and battery committed without any special justification or
excuse (a).

Act The may

3. act * be wrongful by
*
both the law of England
wrongful
by both and the law of the place where it was done. In such a
case an action lies in England, without regard to the
nationality of the parties (b), provided the cause of action
is not of a
purely local kind, such as trespass to land.
This last qualification was formerly enforced by the technical
rules of venue, with the distinction
thereby made between
"local and transitory actions : but it seems to involve matter
of real principle, though since the Judicature Acts
abolished the technical forms an occasion of re-stating
the principle has not yet arisen (c). It cannot well have

(y) Ex. Ch. L. R. 6 Q. B. 1, 40 JJ.

L. J. Q. B. 28 (1870). (b) Per Cur., The Halley, L. R.

(z)
Scott v. Seijmour (1862) Ex. 2 P. C. at p. 202.
Ch. 1 H. & C. 21 9, 32 L. J. Ex. 61 .
(c) See per Lord Cairns, Whitalcer

(a] Ib. per Wightman and Willes v. Forbes (1875) 1 C. P. Div. at

 LOCALITY OF WRONGS. 185

been the intention of the Judicature Acts to throw upon

our courts the duty of trying (for example) an action for
in Bengal for irrigation,
disturbing a right to use a stream
or to float timber down a particular river in Canada the ;

result of which would be that the most complicated

questions of local law might

have to be dealt with here as
matters of fact, not incidentally (as must now and then
unavoidably happen in various cases), but as the very
substance of the issues (d).

We have stated the law for convenience in a series of judgment

distinct propositions. But, considering the importance of n
the subject, it seems desirable also to reproduce the con- v -

tinuous view of given in the judgment of the Exchequer

it

Chamber delivered by Willes J. in Phillips v. Eyre :

" Our courts are said to be more open to admit actions
founded upon foreign transactions than those of any other
European country; but there are restrictions in respect
of locality which exclude some foreign causes of action
altogether, namely, those which would be local if they
arose in England, such as trespass to land : Doulson v.

Matthews (e) ;
and even with
respect to those not falling
within that description our courts do not undertake uni-
versal jurisdiction. As a general rule, in order to found a
suit in England for a
wrong alleged to have been com-
mitted abroad, two conditions must be fulfilled. First, the

wrong must be of such a character that it would have been

actionable if committed in England :
therefore, in The

p. 52, and the notes to Mostyn v. The other members of the Court

Fabrigas in Smith's Leading Cases. said nothing on this point.

(d) It was doubted by James (c) 4 T. R. 503 (1792: no action

L. J. (since the Judicature Acts) here for trespass to land in Canada),

whether the Court could entertain The student will bear in mind that
proceedings in respect of an injury Phillips v. Eyre (1870) was before
done to foreign soil. The M. the Judicature Acts.
Moxham (1876) 1 P. Div. at p. 109.
186 REMEDIES FOR TORTS.

Hallcy ( /') the Judicial Committee pronounced against a suit

in the Admiralty founded upon a liability by the law of

Belgium for collision caused by the act of a pilot whom the

shipowner was compelled by that law to employ, and for
whom, therefore, as not being his agent, he was not respon-
sibleby English law. Secondly, the act must not have
been justifiable by the law of the place where it was done.
Therefore in Blades Case (g), and Blad v. Bamfield (h), Lord

Nottingham held that a seizure in Iceland, authorized by

the Danish Government and valid by the law of the place,
could not be questioned by civil action in England, although
the plaintiff, an Englishman, insisted that the seizure was in
violation of a treaty country and Denmark
between this

a matter proper for remonstrance, not litigation. And in

Dobree v. Napier (i), Admiral Napier having, when in the
service of the Queen of Portugal, captured in Portuguese

water an English ship breaking blockade, was held by the

Court of Common Pleas to be justified by the law of

Portugal and of nations, though his serving under a

foreign prince was contraryEnglish law, and subjected
to

him to penalties under the Foreign Enlistment Act. And

in Reg. v. Lesley (k), an imprisonment in Chili on board a
was held by Erie C. J., and the
British ship, lawful there,
Court for Crown Cases Reserved, to be no ground for an
indictment here, there being no independent law of this

country making the act wrongful or criminal. As to

foreign laws affecting the liability of parties in respect of
bygone transactions, the law is clear that, if the foreign
law touches only the remedy or procedure for enforcing
the obligation, as in the case of an ordinary statute of

(/) L. R. 2 P. C. 193, 37 L. J. (i)

2 Blag. N. C. 781 (1836).
Adm. 33 (1868). (*) Bell C. C. 220, 29 L. J.

(g) 3 Swanst. 603. M. C. 97 (1860).

(h) 3 Swanst. 604.

 LIMITATION OF ACTIONS. 187

limitations, such law is no bar to an action in this country ;

but the foreign law extinguishes the right it is a bar in

if

this country equally as if the extinguishment had been by

a release of the party, or an act of our own Legislature.

This distinction is well illustrated on the one hand by
Hubcr v. Steiner (I), where the French law of five years'

was held by the Court of Common Pleas to be

prescription
no answer in this country to an action upon a French
promissory note, because that law dealt only with pro-
cedure, and the time and manner of suit (tempus et modum
actionis imtituendae), and did not affect to destroy the obli-

gation of the contract (valorem contractus) and on the ;

other hand by Potter v. Brown (m), where the drawer of a

bill at Baltimore upon England was held discharged from
his liability for the non-acceptance of the bill here by a

certificate in bankruptcy, under the law of the United

States of America, the Court of Queen's Bench adopting
the general rule laid down by Lord Mansfield in Ballantine
'
v. Golding (ri), and ever since recognized, that, what is a
discharge of a debt in the country where it is contracted is
a discharge of it everywhere.' So that where an obliga-
tion by pay a debt or damages is discharged
contract to
and avoided by the law of the place where it was made, the
accessory right of action in every court open to the creditor
unquestionably falls to the ground. And by strict parity
of reasoning, where an obligation ex delicto to pay damages
is discharged and avoided by the law of the country where
itwas made, the accessory right of action is in like manner
discharged and avoided. Cases may possibly arise in which
distinct and independent rights or liabilities or defences
are created by positive and specific laws of this country in

respect of foreign transactions ;

but there is no such law

(0 2 Bing. N. C. 202. () Cooke's Bankrupt Law, 487.

(m) 5 East 124.
 188 REMEDIES FOR TORTS.

(unless be the Governors Act already discussed and dis-

it

posed of) applicable to the present case."

Limitation
-P 4-*
The times in which actions of tort must be brought
^ are
fixed by the Statute of Limitation of James I. (21 Jac. 1,
c.
16) as modified by later enactments (n) . No general
principle down, but actionable wrongs are in effect
is laid
divided into three classes, with a different term of limita-
tion for each. These terms, and the causes of action to
which they apply, are as follows, the result being stated,
without regard to the actual words of the statute, according
to the modern construction and practice :

Six years.

Trespass to land and goods, conversion, and all other

common law wrongs (including libel) except slander by
words actionable per se (o) and injuries to the person.

Four years.

Injuries to the person (including imprisonment).

Tico years.

Slander by words actionable per sc.

Suspen- Persons who at the time of their acquiring a cause of

sion of the . .

statute by action are infants, married women, or lunatics (p), have

ties<
the period of limitation reckoned against them only from

() Seethe text of the statutes, Amendment Act, 1856), s. 10. The

Appendix C. existing law as to defendants be-
( 0)
See Blake Odgers, Digest of yond seas is the result of 4 &5 Anne,
Law Libel, 2nd ed. 520.
of c. 3 [al. 16], s. 19, as explained by
(p) Plaintiffs imprisoned or being 19 & 20 Viet. c. 97, s. 12. As to
beyond the seas had the same the retrospective effect of s. 10, see
right by the statute of James I., Pardo v. Bingham (1869) 4 Ch. 735,
but this was abrogated by 19 & 20 39 L. J. Ch. 170.
"fact. c. 97 (the Mercantile Law
 1, IMITATION OF ACTIONS. 189

the time of the disability ceasing and if a defendant is ;

beyond seas at the time of the right of action arising, the

time runs against the plaintiff only from his return. No
part of the United Kingdom or of the Channel Islands is

deemed to be beyond seas for this purpose (q). If one

cause of disability supervenes on another unexpired one

(as where a woman marries

under age), the period of limi-
tation probably runs only from the expiration of the latter

disability (r) .

Where damage the gist of the action, the time runs

is

only from the actual happening of the damage ().

*
Justices of the peace (t) and constables (u) are protected Protection
.
of justices,
by general enactments that actions against them for any consta-

thing done in the execution of their office must be brought

within six months of the act complained of.
The enforcement of statutory duties is often made sub-

ject by the same Acts which create the duties to a short

period of limitation. These provisions do not really belong

to our subject, but to various particular branches of public
law.

The operation of the Statute of Limitation is further Exception

subject to the exception of concealed fraud, derived from cealed
fraud -
the doctrine and practice of the Court of Chancery, which,
whether it thought itself bound by the terms of the statute,
or only acted in analogy to it (#) , considerably modified its

(-7)
See last note. Darley Main Colliery Co. v. Mitchell
(r]Cp. Borrows v. Ellison (1871) (1886) 11 App. Ca. 127, 55 L. J.
L. R. 6 Ex. 128, 40 L. J. Ex. 131 Q. B. 529, affirming S. C. 14 Q. B.
(on the Real Property Limitation Div. 125.
Act, 3 & 4 Win. IV. c. 27) but the ; (t)
11 & 12 Viet. c. 44, s. 8.

language of the two statutes might (u) 24 Greo. II. c. 44, s. 8.

be distinguished. (x) See 9 Q. B. Div. 68, per

(s) Backhouse v. Bonomi (1861) Brett L. J.
9 H. L. C. 503, 34 L. J. Q. B. 181 ;
190 REMEDIES FOR TORTS.

"Where a wrong-doer fraudulently con-

literal application.

ceals his own wrong, the period of limitation runs only

from the time when the plaintiff discovers the truth, or

with reasonable diligence would discover it. Such is now
the rule of the Supreme Court in every branch of it and in
all causes w
(?/).
/
^
A plaintiff may not set up by way of amendment claims
in respect of causes of action which are barred by the
statute at the date of amendment, though they were not so
at the date of the original writ (z) .

It has often been remarked that, as matter of policy,

the periods of limitation fixed by the statute of James are

unreasonably long for modern usage but modern legisla-

;

tion has done nothing beyond removing some of the

privileged disabilities.

Conclu- "We have now reviewed the general principles which are
sion of
General common to the whole law of Torts as to liability, as to
exceptions from liability, and as to remedies. In the fol-

lowing part of this work we have to do with the several

distinct kinds of actionable wrongs, and the law
peculiarly
applicable to each of them.

(y) ffibbs v. Guild (1882) 9 Q. B. Judicature Acts the Court of Chan-

Div. 59, 51 L. J. Q. B. 313, which ceiy would or would not have had
makes the equitable doctrine of jurisdiction in the case,
general application without regard (z) Weldon v. Neal (1887) 19 Q. B.
to the question whether before the Diy. 394, 56 L. J. Q. B. 621.
 191

BOOK II.

SPECIFIC WRONGS.

CHAPTEE VI.

PERSONAL WRONGS.

I. Assault and Battery.

SECURITY for the person is among the first conditions of Prelimi-

l
civilized life. The law therefore protects us, not only
against actual hurt and violence, but against every kind of
bodily interference and restraint not justified or excused
by allowed cause, and against the present apprehension of
any of these things. The application of unlawful force to
another constitutes the wrong called battery : an action
which puts another in instant fear of unlawful force, though
no force be actually applied, is the wrong called assault.
These wrongs are likewise indictable offences, and under
modern statutes can be dealt with by magistrates in the
way of summary jurisdiction, which is the kind of redress
most in use. Most of the learning of assault and battery,
considered as civil injuries, turns on the determination of
the occasions and purposes by which the use of force is

justified. The elementary notions are so well settled as to

require little illustration.

" The least "

touching of another in anger is a battery (a) ;
What
shall be

(a) Holt C. J., Cok v. Turner (1705) 6 Mod. 149, and BigelowL. C. 218.
192 PERSONAL WRONGS.

said a " for the law cannot draw the line between different
degrees
battery.
of violence, and therefore totally prohibits the first and
lowest stage of it every man's person being sacred, and
;

no other having a right to meddle with it in any the

slightest manner" (b). It is immaterial not only whether
the force applied be sufficient in degree to cause actual

hurt, but whether it be of such a kind as is likely to cause

it. Some interferences with the person which cause no
bodily harm are beyond comparison more insulting and
annoying than others which do cause it. Spitting in a
man's face is more offensive than a blow, and is as much a
battery in law (c). Again, it does not matter whether the
force used is applied directly or indirectly, to the human
body anything in contact with it nor whether
itself or to ;

with the hand or anything held in it, or with a missile (W).

What an Battery includes assault, and though assault strictly

assault.
means an inchoate battery, the word is in modern usage
constantly made reason appears
to include battery. No
for maintaining the distinction of terms in our modern

practice and in the draft

: Criminal Code of 1879 "assault"
is deliberately used in the larger popular sense. "An
" "
assault (so runs the proposed definition) is the act of

intentionally applying force to the person of another

directly or indirectly, or attempting or threatening by any

act or gesture to apply such force to the person of another,

if the person making the threat causes the other to believe (c)

(b)
Blackst. Comm. iii. 120. 108 b, a writ for throwing " quon-

(c}
It. v. Ootestvorth, 6 Mod. 172. dam liquorem calidutn
' '
on the
(d) Pur sell v. Home (1838) 3 N. plaintiff :
' '
casus erat huiusmodi
& P. 564 (throwing water at a praecedentis brevis :
quaedam mu-
person is assault ;
if the water . lier proiecit super aliam mulierem
falls on him as intended, it is bat- ydromellum quod anglice dicitur
tery also). But there is much worte quod erat nimis calidum."
" believes
older authority, see Reg. Brev. (f) One might expect
 ASSAULT. 193

upon reasonable grounds that he has present ability to

"
effect his purpose (/).
Examples which amount to assaulting a man are
of acts
"
the following Striking at him with or without a weapon,
:

or presenting a gun at him at a distance to which the gun

will carry, or pointing a pitchfork at him, standing within
the reach of it, or holding up one's fist at him, or drawing
a sword and waving it in a menacing manner" (g). The
essence of the wrong is putting a man in present fear of
violence, so that any act fitted to have that effect on a reason-

able man may be an assault, though there is no real present

ability to do the harm threatened. Thus it may be an assault

to present an unloaded fire-arm (A), or even, it is appre-
hended, anything that looks like a fire-arm. So if a man
is advancing upon another with apparent intent to strike

him, and is stopped by a third person before he is actually

within striking distance, he has committed an assault (i).

or causes," &c. ;
but this would be not be convicted of an attempt to
an extension of the law. No as- discharge a loaded fire-arm under
sault is committed by presenting a a criminal statute, nor even of an
gun at a man who cannot see it, assault, if the arm is (as by defec-
any more than by forming an in- tive priming) not in a state capable
tention to shoot at him. of being discharged ; but this
(/) Criminal Code (Indictable opinion (also held by Lord Abinger,
Offences) Bill, s. 203. Mr. Justice Blake v. Barnard, 9 C. & P. at p.
Stephen's definition in his Digest 628) is against that of Parke B. in
(art. 241) more elaborate; and
is R. v. St. George (1840) 9 C. & P.
the Indian Penal Code has an ex- 483, 493, which would almost cer-
tremely minute definition of
' '

using tainly be followed at this day.

force to another" (s. 349). As (i) Stephens
v. Myers, 4 C. & P.
Mr. Justice Stephen remarks, if 349 ; Bigelow L. C. 217. A large
legislators begin defining in this proportion of the authorities on
way it is hard to see what they can this subject are Nisi Prius cases
assume to be known. (cp. however Read v. Coker (1853)
(ff)
Bacon Abr. " Assault and 13 C. B. 850, 22 L. J. C. P. 201) :
Battery," A; Hawkins P. C. i. see the sub -titles of Assault under
110. Criminal Law and Trespass in
(h) It. v. James (1844) 1 C. & K. Fisher's Digest. Some of the
530, apparently to the contrary.
is dicta, as might be expected, are in
Tindal C. J. held that a man could conflict.

P. O
194 PERSONAL WRONGS.

Acts capable in themselves of being an assault may on

the other hand be explained or qualified by words or cir-
cumstances contradicting what might otherwise be inferred
from them. A
man put his hand, on his sword and said,
"
Ifwere not assize-time, I would not take such language
it
"
from you this was no assault, because the words ex-
;

cluded an intention of actually striking (k).

Excusable Hostile or unlawful intention necessary to constitute

is
acts.
an indictable assault ;
and such touching, pushing, or the
like as belongs to the ordinary conduct of life, and is free

from the use of unnecessary force, is neither an offence nor

" If two or more meet in a narrow
wrong. passage, and
without any violence or design of harm the one touches
"
the other gently, it will be no battery (/). The same rule
holds of a crowd of people going into a theatre or the
like (m). Such accidents are treated as inevitable, and
createno right of action even for nominal damages. In
other cases an intentional touching is justified by the-
common usage of civil intercourse, as when a man gently
lays his hand on another to attract attention. But the
use of needless force for this purpose, though it does not
seem to entail criminal liability where no actual hurt is
done, probably makes the act civilly wrongful (n) .

Mere passive obstruction is not an assault, as where a

man by standing in a doorway prevents another from
coming in (o).

(k) Tubermlle v. Savage (1669) 1 (o) Lines v. Wylie (1884) 1 C. &

Mod. 3. K. 257. But it seems the other, if

(1}
Holt C. J., Colev. Turner, 6 he is going where he has a right to
Mod. 149. go, is justified in pushing him.

(w) Steph. Dig.Cr. Law, art. 241, aside, though not in striking or
illustrations. other violence outside the actual

(n) Coward v. Baddeley (1859) 4 exercise of his right: see p. 157,

H. & N. 478, 28 L. J. Ex. 260. above.
 ASSAULT. 195

Words cannot of themselves amount to an assault under

any circumstances, though it is said that a contrary opinion

formerly prevailed :

" For Meade's case

proves, or my Report's in fault,
That singing can't be reckoned an assault " (p).

There is little direct authority on the point, but no doubt

is possible.

common " leave and

Consent, or in the phrase licence,"
will justify many acts which would otherwise be assaults (<?),

striking in sport for example ;

or even, if coupled with
reasonable cause, wounding and other acts of adangerous
kind, as in the practice of surgery. But consent will not
make acts lawful which are a breach of the peace, or other-
wise criminal in themselves, or unwarrantably dangerous.
To the authorities already cited (r) under the head of General
Exceptions we may add Hawkins' paragraph on the
matter.
" It seems to be the better
opinion that a man is in no
danger of such a forfeiture [of recognizances for keeping
the peace] from any hurt done to another by playing at

cudgels, or such like sport, by consent, because the intent

of the parties seems no way unlawful, but rather com-
mendable, and tending mutually to promote activity and
courage. Yet it is said that he who wounds another in

(p) The Circuiteers, by John (q) Under the old system of

Leycester Adolphus (the supposed pleading this was not a matter
speaker is Sir
Gregory Lewin), of special justification, but evi-
L. Q. K. i. Meade's and Belt's
232 ;
dence under the general issue, an
" no words
ca., 1 Lewin C. C. 184 : assault by consent being a contra-
or singing are equivalent to an diction in terms :
Christopherson v.
assault," per Holroyd J. Op. Bare (1848) 11 Q. B. 473, 17 L. J.
Hawkins P. C. i. 110. But it was Q. B. 109. But this has long
formerly held otherwise see 27 : ceased to be of any importance in
Ass. 134, pi. 11, 17 Ed. IV. 3, England,
pi. 2, 36 Hen. VI. 20 b, pi. 8. (r) P. 145 above.

02
196 PERSONAL WRONGS.

fighting with naked swords does in strictness forfeit such a

recognizance, because no consent can make so dangerous a
diversion lawful" (s).

It has been repeatedly held in criminal cases of assault

that an unintelligent assent, or a consent obtained by fraud,
is of no effect (t). The same principles would no doubt be
applied by courts of civil jurisdiction if necessary.

Self- When one is lawful to repel

wrongfully assaulted it is

force by force (as also to use force in the defence of those

whom one is bound to protect, or for keeping the peace),
provided that no unnecessary violence be used. How much
force, and of what kind, it is reasonable and proper to use
in the circumstances must always be a question of fact,
and as it is incapable of being concluded beforehand by
authority, so we do not any find decisions which attempt a
definition. "We must be content to say that the resistance
must " not exceed
the bounds of mere defence and preven-
tion" (u), or that the force used in defence must be not
more than " commensurate " with that which provoked
it (v) . It is obvious, however, that the matter is of much
graver importance in criminal than in civil law (#).

Menace Menace without assault is in some cases actionable. But

distin-

() Hawkins, P. C. i. 484. The Pierce, 138 Mass. 165, 180.

Roman law went even farther in (u) Blackst. Comm. iii. 4.
contests " Eeece v. Taylor, 4 N. & M.
encouraging gloriae (v)
causa et virtutis," D. 9. 2, ad 1. 470.
(x) See Stephen's Digest of the
Aquil. 7, 4.

(t) Cases collected in Fisher's Criminal Law, art. 200, and cp.
Dig. ed. Mews, 2081-2. Similarly Criminal Code Bill, ss. 5557 ;
where consent is given to an un- and for full discussion Dicey, Law
reasonably dangerous operation or of the Constitution, 3rd ed. appx.
treatment by one who relies on the note 3. There are many modern
prisoner's skill, it does not excuse American decisions, chiefly in the
him from the guilt of manslaughter Southern and Western States. See
if death ensues: Commomvcalth v. Cooley on Torts, 165.
 SELF-DEFENCE. 197

on the ground of its causing a certain special kind

this is guished

of damage and then the person menaced need not be the

; assault.

person who suffers

damage. In fact the old authorities

are all, or nearly all, on intimidation of a man's servants

or tenants whereby he loses their service or dues. There-
fore,though under the old forms of action this wrong was
of the same genus with assault and battery, we shall find
it more convenient to consider it under another head.

Verbal threats of personal violence are not, as such, a^

ground of civil action at all. If a
thereby put in man is

reasonable bodily fear he has his remedy, but not a civil

one, namely by security of the peace.

Where an complained of before justices under Summary

assault is
proceed -
24 & 25 Yict. c. 100, and the complaint has been dismissed ings when
either for want of proof, or on the ground that the assault

or battery was " justified or so trifling as not to merit

any
actlon -

punishment," or the defendant has been convicted and

paid the fine or suffered the sentence, as the case may be,
no further proceedings either civil or criminal can be
taken in respect of the same assault (y).
J

II. False Imprisonment.

Freedom of the person includes immunity not only from False

the actual application of force, but from every kind of

detention and restraint not authorized by law. The in-
fliction of such restraint is the wrong of false imprison-

ment ; which, though generally coupled with assault, is

(y} 24 & 25 Viet. c. 100, ss. 42 master for consequential damage:

45. Masperv. Brown (1876) 1 C. the words of the Act are "same
P. D. 97, decides that the Act is cause," but they are equivalent to
not confined to suits strictly for the same assault ' in the earlier Act,
' ' '

same cause of action, but extends 16 & 17 Viet. c. 30, s. 1, repealed

to bar actions by a husband or by 24 & 25 Viet. c. 95.
198 PERSONAL WRONGS.

nevertheless a distinct wrong. Laying on of hands or

other actual constraint of the body is not a necessary
"
element and, if " stone walls do not a prison make for
;

the hero or the poet, the law none the less takes notice that
there may be an effectual imprisonment without walls of
"
any kind. Every confinement of the person is an im-
prisonment, whether it be in a common prison, or in a
private house, or in the stocks, or even by forcibly detain-
ing one in the public streets" (z). And when a man is

lawfully in a house, it is imprisonment to prevent him

from leaving the room in which he is (a) The detainer, .

however, must be such as to limit the party's freedom of

motion in all directions. It is not an imprisonment to
obstruct a man's passage in one direction only. "A prison
may have its boundary large or narrow, invisible or tangible,
actual or real, or indeed in conception only it may in ;

itself be moveable or fixed must have,

;
but a boundary it

and from that boundary the party imprisoned must be pre-

vented from escaping he must be prevented from leaving
;

that place within the limit of which the party imprisoned

could be confined." Otherwise every obstruction of the
exercise of a right of way may be treated as an imprison-
ment (b). A man is not imprisoned
escape who has an
open to (c) him is, ;
that a we apprehend,
means of escape
which a man of ordinary ability can use without peril of
life or limb. The verge of a cliff, or the foot of an
apparently impracticable wall of rock, would in law be a

(z)
Blackst. Comm. iii. 127. (b)
Bird v. Jones (1845) 7 Q. B.
(a) Warner v. Riddiford,
4 C. B. 742, 15 L. J. Q. B. 82, per Cole-
N. S. 180 even if he is disabled
; ridge J.

by sickness from moving at all :

(c) "Williams J., ib. To the same
the assumption of control is the Patteson "
effect J. :
Imprison -
main thing: Grainger v. Hill (1838) ment is a total restraint of liberty
4 Bing. N. C. 212. of person." Lord Denman C. J.
dissented.
 FALSE IMPRISONMENT. 199

sufficient boundary, though peradventure not sufficient in

fact to restrain an expert diver or mountaineer. So much
as to what amounts to an imprisonment.

When an action for false imprisonment is

brought and
Juatifica-

def ended, the real question in dispute is mostly, though arrest and
not always, whether the imprisonment was justified. One
could not account for all possible justifications except by a
full enumeration of all the causes for which one man may
lawfully put constraint on the person of another : an un-
dertaking not within our purpose in this work. We have
considered, under the head of General Exceptions (d), the
principles on which persons acting in the exercise of special
duties and authorities are entitled to absolute or qualified

immunity. With regard to the lawfulness of arrest and

imprisonment in particular', there are divers and somewhat
minute distinctions between the powers of a peace-officer
and those of a private citizen (e) : of which the chief is that
an officer may without a warrant arrest on reasonable

suspicion of felony, even though a felony has not in fact

been committed, whereas a private person so arresting, or
causing to be arrested, an alleged offender, must show not
only that he had reasonable grounds of suspicion but that
a felony had actually been committed (/). The modern
policeman is a statutory constable having all the powers
which a constable has by the common law (g), and special

(d) Ch. IV. p. 96, above. that they have committed a mis-

(e) Stephen, Dig. Grim. Proc. demeanour :" see Griffin v. Coleman
o. 12, 1 Hist. Cr. Law 193: and (1859) 4 H. & N. 265, 28 L. J. Ex.
see Hogg v. Ward (1858) 3 H. & N. 134.

417, 27 L. J. Ex. 443. ((/} Stephen, 1 Hist. Or. Law,

(/) This applies only to felony :
197, 199. As to the common law
" the law common law] does
[i. e., powers of constables and others to
not excuse constables for arresting arrest for preservation of the peace,

persons on the reasonable belief which seem not free from doubt,
200 PEKSONAL WRONGS.

statutory powers for dealing with various particular

offences (ti)
.

Who is Every one is answerable for specifically directing the

able. arrest orimprisonment of another, as for any other act that
he specifically commands or ratifies and a superior officer ;

who finds a person taken into custody hy a constable under

his orders, and then continues the custody, is liable to an
action if the original arrest was unlawful (i) Nor does it .

matter whether he acts in his own interest or another's (/).

But one is not answerable for acts done upon his informa-
tion or suggestion by an officer of the law, if they are done
not as merely ministerial acts, but in the exercise of the
proper authority or discretion. Rather trouble-
officer's

some doubts may arise in particular cases as to the quality

of the act complained of, whether in this sense discre-

tionary, or ministerial only. The distinction between a

"
servant and an " independent contractor with regard
(7c)

to the employer's responsibility is in some measure

analogous. A party who sets the law in motion without
making its act his own is not necessarily free from liability.
He may be liable for malicious prosecution (of which here-

after) (/) ;
but he cannot be sued for false imprisonment, or
in a court which has not jurisdiction over cases of malicious
"
prosecution. The distinction between false imprison-
ment and malicious prosecution is well illustrated by
the case where, parties being before a magistrate, one
makes a charge against another, whereupon the magistrate

see Timothy v. Simpson (1835) 1 C. W. Bl. 866 (attorney suing out and
M. & R. 757, Bigelow L. C. 257, procuring execution of void pro-
per Parke B. cess).
(A) Bigelow L. C. 200. (K) P. 72, above.
(i) Griffin v. Coleman, note (/) (/)
See Fitzjoknv. Mackinder (1881)
last page. Ex. Oh. 1861, 9 C. B. N. S. 505,

(j) Barker v. Braham (1773) 2 30 L. J. C. P. 257.

 FALSE IMPRISONMENT. 201

orders the person charged to be taken into custody and

detained until the matter can be investigated. The party
making the charge is not liable to an action for false
imprisonment, because he does not set a ministerial officer
in motion, but a judicial officer. The opinion and the
judgment of a judicial officer are interposed between the
"
charge and the imprisonment (m). "Where an officer has
taken a supposed offender into custody of his own motion ?
a person who at his request signs the charge-sheet does not
thereby make the act his own (w), any more than one who
certifieswork done under a contract thereby makes the
contractor his servant. But where an officer consents to
take a person into custody only upon a charge being

distinctly made by the complainant, and the charge-sheet

signed by him, there the person signing the charge-sheet
must answer for the imprisonment as well as the officer (o).

Again, where a man is given into custody on a mis-

taken charge, and then brought before a magistrate who
remands him, damages can be given against the prosecutor
in an action for false imprisonment only for the trespass in

arresting, not for the remand, which is the act of the

magistrate (p).

(m) "Willes J., Austin v. Dowling 260. Other illustrations may be

(1870) L. R. 5 C. P. at p. 540; found in Addison on Torts, 5th ed.
West v. Smallwood (1838) 3 M. & 130, 131. As to the protection of
W. 418; Bigelow L. C. 237; nor parties issuing an execution in
does an action for malicious prose- regular course, though the judg-
cution where the judicial officer
lie ment is afterwards set aside on
has held on a true statement of the other grounds, see Smith v. Sydney
facts that there is reasonable cause :
(1870) L. R. 5 Q. B. 203, 39 L. J.
Hope Evered (1886) 17 Q. B. D.
v. Q. B. 144. One case often cited,
338, 55 L. J. M. C. 146; Lea v. Flew sterv. Roy le (1808, Lord Ellen-
Charrington (1889) 23 Q. B. Div. borough) 1 Camp. 187, is of doubt-
45, 272, 58 L. J. Q. B. 461. ful authority: see Gosden v. Elphick

() Grinham v. Willey (1859) 4 (1849) 4 Ex. 445, 19 L. J. Ex. 9 ;

H. & N. 496, 28 L. J. Ex. 242. and Grinham v. Willey, above.
(0) Austin Dowling (1870) L.
v. (p} Lock v. Ashton (1848) 12 Q,
E. 5 C. P. 534, 39 L. J. C. P. B. 871, 18 L. J. Q. B. 76.
202 PERSONAL WRONGS.

Reason- What reasonable cause of suspicion to justify arrest

is

probable may be said, paradoxical as the statement looks, to be neither

a question of law nor of fact, at any rate in the common
sense of the terms. Not of fact, because it is for the judge
"
and not for the jury (q) ;
not of law, because no definite
rule can be laid down for the exercise of the judge's judg-
"
ment (r).
a matter of judicial discretion such as
It is

is familiar enough in the classes of cases which are dis-

posed of by a judge sitting alone but this sort of discre- ;

tion does not find a natural place in a system which

assigns the decision of facts to the jury and the determina-

tion of the law to the judge. The anomalous character of

the rule has been more than once pointed out and regret-
ted by the highest judicial authority (s) The truth seems .

to be that the question was formerly held to be one of law,

and has for some time been tending to become one of fact,

but the change has never been formally recognized. The

only thing which can be certainly affirmed in general
" reasonable cause " in this
terms about the meaning of
connexion is that on the one hand a belief honestly enter-

tained is not of itself enough (t) ;

on the other hand, a man
, is not bound to wait until he is in possession of such evi-

dence as would be admissible and sufficient for prosecuting

the offence to conviction, or even of the best evidence

" It does not
which he might obtain by further inquiry.

(q) Haiks v. Marks (1861) 7 H. procedure in which there was no

& N. 56, 30 L. J. Ex. 389. jury at all) in Lister v. Ferryman,
(r) Ferryman (1870) L.
Lister v. L. K. 4 H. L. 531, 538, 539.
R. 4 H. L. 521, 535, per Lord (t) Broughton v. Jackson (1852)
Chelmsford. So per Lord Colonsay 18 Q. B. 378, 21 L. J. Q. B. 266:
at p. 540. the defendant must show "facts

(s)
Lord Campbell in Broughton which would create a reasonable
v. Jackson (1852) 18 Q. B. 378, suspicion in the mind of a reason-
383, 21 L. J. Q. B. 266; Lord able man," per Lord Campbell

Hatherley, Lord Westbury, and C. J.

Lord Colonsay (all familiar with
 REASONABLE CAUSE FOR ARREST. 203

follow that because it would be very reasonable to make

further inquiry, it isnot reasonable to act without doing
"
so (u). It is obvious, also, that the existence or non-
existence of reasonable cause must be judged, not by the
event, but by the party's means of knowledge at the time.
Although the judge ought not to leave the whole ques-
tion of reasonable cause to the jury, there seems to be no

objection to hisasking the jury, as separate questions,

whether the defendant acted on an honest belief, and
whether he used reasonable care to inform himself of the

^facts (x).

III. Injuries in Family Relations.

Next to the sanctity of the person comes that of the Protection

personal relations constituting the family. Depriving a relations.

husband of the society of his wife, a parent of the com-

panionship and confidence of his children, is not less a
personal injury, though a less tangible one, than beating
or imprisonment. The same may to some extent be said
of the relation of master and servant, which in modern
law is created by contract, but is still regarded for some
purposes as belonging to the permanent organism of the
family, and having the nature of status. It seems natural

enough that an action should lie at the suit of the head of

a household for enticing away a person who is under his
lawful authority, be it wife, child, or servant there may ;

be difficulty in fixing the boundary where the sphere of

domestic relations ends and that of pure contract begins,
but that a difficulty of degree. That the same rule
is

should extend to any wrong done to a wife, child, or

(u) Branrwell B., Ferryman v. H. L. at p. 533.

.lister (1868) L. K. 3 Ex. at p. 202, (a;)H. Stephen on Malicious
approved by Lord Hatherley, S. C. Prosecution, ch. 7.
nom. Lister V. Perryman, L. R. 4
204 PERSONAL WRONGS.

servant, and followed as a proximate consequence by loss

of their society or service, equally to be expected.

is

Then, if seduction in its ordinary sense of physical and

moral corruption is part of the wrong-doer's conduct, it is
quite in accordance with principles admitted in other parts
of the law that this should be a recognized ground for

awarding exemplary damages. It is equally plain that on

general principle a daughter or servant can herself have

no civil remedy against the seducer, though the parent or
master may no; remedy, we say, for other remedies
civil

have existed and exist. She cannot complain of that

which took place by her own consent. Any different rule
would be an anomaly. Positive legislation might introduce
it on grounds of moral expediency the courts, which have
;

the power and the duty of applying known principles to

new cases, but cannot abrogate or modify the principles
themselves, are unable to take any such step.

Historical There seems, in short, no reason why this class of

of the wrongs should not be treated by the common law in a
simple and rational manner, and with results gene-
herein.
rally not much unlike those we actually find, only free
from the anomalies and injustice which flow from dis-

guising real analogies under transparent but cumbrous

fictions. But as matter of history (and pretty modern
history) the development of the law has been strangely

halting and one-sided. Starting from the particular case

of a hired servant, the authorities have dealt with other

relations, not by openly treating them as analogous in

principle, but by importing into them the fiction of actual
service; with the result that in the class of cases most

prominent in modern practice, namely, actions brought by

a parent (or person in loco parent-is) for the seduction of a

daughter, the test of the plaintiffs right has come to be,

 LOSS OF SERVICE. 205

not whether he has heen injured as the head of a family,

but whether he can make out a constructive " loss of ser-
vice"^).

The common law provided a remedy by writ of trespass Trespass

for the actual taking away of a wife, servant, or heir, and away
/
a_

perhaps younger child also (z). An action of trespass also d

e>

lay for wrongs done to the plaintiff's wife or servant (not

x
P er <i

servttittm
to a child as such), whereby he lost the society of the amisit.

former or the services of the latter. The language of

pleading was per quod consortium, or servitium amisit.

Such a cause of action was quite distinct from that which
the husband might acquire in right of the wife, or the
servant in his own right. The trespass is one, but the
remedies are "diversis respectibus" (a). "If my servant
is beat, the master shall not have an action for this battery,

unless the battery great that by reason thereof he

is so

loses the service of his servant, but the servant himself for

every small battery shall have an action and the reason ;

of this difference is that the master has not any damage

by the personal beating of his servant, but by reason of a

per quod, viz., per quod servitium, Sfc. amisit; so that the
original act is not the cause of his action, but the conse-

quent upon it, viz., the loss of his service, is the cause of
his action ;
for be the battery greater or less, if the master
doth not lose the service of his servant, he shall not have an
action" (b). The same rule applies to the beating or mal-

(y) Christian's note on Black- sui, or an ordinary writ of trespass

stone iii. 142 is still not amiss, (F. N. B. 52 K) a case as late as
;

though the amendments of this the Restoration is mentioned in

century in the law of evidence Bac. Abr. v. 328 (ed. 1832).
have removed some of the griev- (a) Y. B. 19 Hen. VI. 45, pi. 94.
ances mentioned. (b) Robert Marys' s case, 9 Co.
(z) F. N. B. 89 O, 90 H, 91 I; Eep. 1130. It is held in Osbornv.
Blackst. Comm. iii. 139. The writ L. B. 8 Ex. 88, 42
Gillett (1873)
was de uxore abducta cum bonis viri L. J. Ex. 53, that a master shall
206 PERSONAL WRONGS.

treatment of a man's wife, provided it be " very enormous,

so that thereby the husband is deprived for any time of
"
the company and assistance of his wife (c).

"Criminal
Against an adulterer the husband had an action at
tion." common law, commonly known as an action of criminal
conversation. In form it was generally trespass vi et armis,
on the theory that " a wife is not, as regards her husband,
a free agent or separate person" (d), and therefore her
consent was immaterial, and the husband might sue the
adulterer as he might have sued any mere trespasser who

beat, imprisoned, or carried away his wife against her will.

Actions for criminal conversation were abolished in Eng-

land on the establishment of the Divorce Court in 1857,
but damages can be claimed on the same principles in

proceedings for a dissolution of marriage or judicial

separation (e).

In practice these actions were always or almost always

instituted with a view to obtaining a divorce by private
Act of Parliament ;
the rules of the House of Lords (in
which alone such were brought in) requiring the
Bills

applicant to have obtained both the verdict of a jury in an

action, and a sentence of separation a mensa et toro in the
Ecclesiastical Court.

Enticing An action also lay for enticing away a servant (that is,
away
servants. procuring him or her to depart voluntarily from the

not have an action for a trespass Gye (1853) 22 L. J. Q. B. at p. 478.

whereby his servant is killed (diss. Case would also lie, and the com-
Bramwell B.). It is submitted mon form of declaration was for
that the decision is wrong, and some time considered to be rather
Lord Bramwell's dissenting judg- case than trespass Macfadzen v.
;

ment right. See pp. 57, 58, above. Olivant (1805) 6 East 387. See
(c)
Blackst. Comm. iii. 140. next note but one.
(d) Coleridge J. in Lumley v. (e) 20 & 21 Viet. c. 85, ss. 33, 59.
 ENTICING AWAY SERVANTS. 207

master's service), and also for knowingly harbouring a

servant during breach of service ; whether by the common

law, only after and by virtue of the Statute of

or
Labourers (/), is doubtful. Quite modern examples are
not wanting (g) .

Much experiment was tried with success of a

later the

husband bringing a like action " against such as persuade

and entice the wife to live separate from him without a
sufficient cause" (h).
the action for enticing away a servant, per
Still later

quod servitium amisit, was turned to the purpose for which

alone it may now
be said to survive, that of punishing
seducers; for the latitude allowed in estimating damages
makes the proceeding in substance almost a penal one.

In this kind of action it is not necessary to prove the Actions

Tf\r* oiw3ii
for seduc-

(/) 23Edw. III. (A.D. 1349): this was the only proper form ibid. :
,

statute, passed in consequence of Ditcham v. Bond (1814) 2 M. & S.

the Black Death, marks a great 43G. It was formally decided as
crisis in the history of English late as 1839 (without giving any
agriculture and land tenure. As other reason than the constant
to its bearing on the matter in practice) that trespass or case
hand, see the dissenting judgment might be used at the pleader's
of Coleridge J. in Luniley v. Gye option : Chamberlain v. Hazelwood

(1853) 2 E. & B. 216, 22 L. J. (1839) 5M. & W. 515, 9 L. J. Ex.

Q. B. 463, 480. The action was 87. The only conclusion which
generally on the case, but it might can or need at this day be drawn
be trespass: e. p., Tullidgev. Wade from such fluctuations is that the
(1769) 3 Wils. 18, an action for old system of pleading did not suc-

seducing the plaintiff's daughter, ceed in its professed object of main-

where the declaration was in taining clear logical distinctions
trespass vi et armis. How this between different causes of action.
can be accounted for on principle (g) Hartley v. Cummings (1847) 5
I know not, short of regarding C. B. 247, 17 L. J. C. P. 84.
the servant as a quasi chattel the :
(h) Blackst. Comm. iii. 139 ;

difficulty was felt by Sir James Winsmore v. Greenbank (1745)

Mansfield, Woodward v. Walton Willes 577, Bigelow L. C. 328.
(1807) 2 B. & P. N. R. 476, 482. It was objected that there was no
For a time it seemed the better precedent of any such action.
opinion, however, that trespass
208 PERSONAL WRONGS.

tion in existence of a binding contract of service between the

practice: plaintiff and the person seduced or enticed away. The

presump- presence or absence of seduction in the common sense
tion of "
service.
(whether the defendant debauched the plaintiff's daugh-
ter," in the forensic phrase) makes no difference in this

respect ;
not a necessary part of the cause of action,
it is

but only a circumstance of aggravation (t) Whether that .

element be present or absent, proof of a de facto relation of

service is enough ;
and any fraud whereby the servant is

induced to absent himself or herself affords a ground of

" when once the relation of master and servant at
action,
"
the time of the acts complained of is established (k).
This applies even to an actual contract of hiring made
by the defendant with a female servant whom he has
seduced, found as a fact that the hiring was a
if it is

merely colourable one, undertaken with a view to the

seduction which followed (/). And a de facto service is
not the recognized because a third party may have a
less

paramount claim a married woman living apart from her

:

husband in her father's house may be her father's servant,

even though that relation might be determined at the will
of the husband (m) Some evidence of such a relation
.

there must be, but very little will serve. A grown-up

daughter keeping a separate establishment cannot be
deemed her father's servant (n) ;
nor can a daughter,

(t)
Evans v. Walton (1867) L. R. (*) Willes J., L. B. 2 C. P. 622.
2 C. P. 615, 36 L. J. C. P. 307, (1) Speight Oliviera (1819) 2
v.

where it was unsuccessfully con- Stark. 493, cited with approval by

tended that the action for seducing Montague Smith J., L. K. 2 C. P.
a daughter with loss of service as 624.
the consequence, and for enticing (m} Harper v. Luffkin (1827) 7
away a servant, were distinct B. & C. 387. This was long before
species ;
and that to sustain an courts of law did or could recog-
action for "enticing away" alone, nize any capacity of contracting in
a binding contract of service must a married woman.
be proved. (n) Manley v. Field (1859) 7 C. B.
N. S. 96, 29 L. J. C. P. 79.
 SEDUCTION. 209

whether of age or not, who at the time of the seduc-

full

tion is actually another person's servant, so that no part of

her services is at her parents' disposal (o) On the other .

hand, the fact of a child living with a parent, or any other

person in loco parent-is, as a member of the family of which
that person is the head, is deemed enough to support the
"
inference that the relation of master and servant, deter-
m in able at the will of either party, exists between them" (p).
And a daughter under age, returning home from service
with another person which has been determined, may be
deemed to have re-entered the service of her father (q).
" "
The right to the service is sufficient (r).

Partial attendance in the parents' house is enough to

constitute service, as where a daughter employed elsewhere

in the daytime without consulting her employer free to
is

assist, and does assist, in the household when she comes

home in the evening (s).

Some loss of service, or possibility of service, must be Damages,

shown on the seduction, since that is, in
as consequent

theory, the ground of action (t) but when that condition ;

(o) Dean v. Peel (1804) 5 East (p) Bramwell B. in Thompson v.

45 ;
even if by the master's licence Ross, last note,
she gives occasional help in her (q) Terry v. Hutchinson (1868)
parents'work Thompson v. Ross ;
L. R. 3 Q. B. 599, 37 L. J. Q. B.
(1859) 5 H. & N. 16, 29 L. J. Ex. 257.
1 ; Tagg (1872) L. R. 7
Hedges v. Littledale J. cited with ap-
(r)
Ex. 283, 41 L. J. Ex. 169. In the proval by Blackburn J., L. R. 3
United States it is generally held Q. B. 602.
that actual service with a third () Rist v. Faux (1863) Ex. Ch. 4
person is no bar to the action, B. & S. 409, 32 L. J. Q. B. 386.
unless there a binding contract
is (t) Grinnell v. Wells (1844) 7
which excludes the parents' right M. & G. 1033, 14 L. J. C. P. 19 ;

of reclaiming the child's services Eager v. Grimwood (1847) 1 Ex.

i.e. that service either de facto or 61, 16 L. J. Ex. 236, where the
de jure will do Martin v. Payne : declaration was framed in trespass,
(Sup. Court N. Y. 1812), Bigelow it would seem purposely on the
L. C. 286, and notes. chance of the court holding that

P. P
210 PERSONAL WRONGS.

is once the damages that may be given are by

satisfied,
no means limited to an amount commensurate with the
actual loss of service proved or inferred. The awarding
of exemplary damages indeed rather encouraged than
is

otherwise (u). It is immaterial whether the plaintiff be a

parent or kinsman, or a stranger in blood who has adopted

the person seduced (x).

Services
Qn
fa Q same principle or fiction of law a parent can
child. sue in his own name for any injury done to a child living
under his care and control, provided the child is old enough
to be capable of rendering service ;
otherwise not, for " the

gist of the action depends upon the capacity of the child to

"
perform acts of service (y).

Capricious The capricious working of the action for seduction in

of the law. modern practice has often been the subject of censure.

Thus, Serjeant Manning wrote more than forty years ago:

" the
quasi fiction of servitium amis-it affords protection to
the rich man whose daughter occasionally makes his tea,
but leaves without redress the poor man whose child is
sent unprotected to earn her bread amongst strangers " (z) .

All devices for obtaining what is virtually a new remedy

by straining old forms and ideas beyond their original

intention are liable to this kind of inconvenience. It has
been truly said (a) that the enforcement of a substantially
"
just claim ought not to depend upon a mere fiction over
which the courts possess no control." We have already

the per quod servitium amisit could not show that, if a jury chose to
"bedispensed with. find that a very young child was
(u) See Terry v. Hutchinson, note capable of service, their verdict
(q) last page. would be disturbed.
(a?)
Irwin v. Dearman (1809) 11 (z) Note to Grinnell v. JTells, 7
East 23. M. & G-. 1044.
(*/)
Hall v. Hollander (1825) 4 (a) Starkie's note to Speight v.
B. & C. 660. But this case does OHviera (1819) 2 Stark. 496.
 SEDUCTION. 211

pointed out the bolder course which might have been

taken without doing violence to any legal principle. Now
it is too late to go back upon the cases, and legislation
would also and troublesome, not so much from
be difficult

the nature of the subject in itself as from the variety of

irrelevant matters that would probably be imported into

any discussion of it at large.

It would be merely curious, and hardly profitable in any Construe -

just proportion to the labour, to inquire how far the fiction vice i n
of constructive service is borne out by the
^
old law of the
action for beating or carrying away a servant. Early in
the 15th century we find a dictum that if a man serves me,
and stays with me at his own will, I shall have an
action for beating him, on the ground of the loss of his

service (b) : but this is reported with a quaere. A generation

later (c) we find Newton
saying that a relation 0. J.
of service between father and son cannot be presumed :

" for he serve where

may it pleaseth him, and I cannot
constrain without his good will " this must
him to serve :

apply only to a son of full age, but as to that case

Newton's opinion express that some positive evidence of
is

service, beyond living with the parent as a member of the

household, required to support an action.
is Unless the
case of a daughter can be distinguished, the modern autho-
ritiesdo not agree with this. But the same Year Book
bears them out (as noted by Willes J.) (d) in holding that
a binding contract of service need not be shown. Indeed,
it was better merely to allege tho service as a fact (in
scrvitio suo existentem cepit), for an action under the Statute
of Labourers would not lie where there was a special con-

(b) 11 Hen. IV. fo. 1-2, pi. 2, (c) 22 Hen. VI. 31 (A.D. 1443).
per Huls J. (A.D. 1410). (d) L. E. 2 C. P. 621-2.
212 PERSONAL WRONGS.

tract varying from the retainer contemplated by the statute,

and amounting to matter of covenant (e).

Inthnida- A similar cause of action, but not quite the same, was
servants recognized by the medieval common law where a man's
tenants,
servants or tenants at will (/) were compelled by force or
" There is
menace to depart from their service or tenure.
another writ of trespass," writes Fitzherbert, " against
those who
near the plaintiff's house, and will not suffer
lie

his servants to go into the house, nor the servants who are
"
in the house to come out thereof (g). Examples of this
kind are not uncommon down to the sixteenth century or
even later; we find in the pleadings considerable variety of
circumstance, which may be taken as expansion or speci-
fication of the alia enormia regularly mentioned in the
conclusion of the writ (h).

(e) 22 Hen. VI. 32*, per Cur. brorum, ita quod recesserunt de
(Newton C. J. ; Fulthorpe, Ascue tenura"; Rastell, Entries 661, 662,
or Ayscoghe, Portington JJ.) ;
F. similar forms of declaration one ;

N. B. 168 F. (pi. 9) is for menacing the king's

(/) If the tenancy were not at tenants, so that " negotia sua
will, the departure would be a palam incedere non audebant";
breach of contract this introduces
;
Garret v. Taylor, Cro. Jac. 567,
a new element of difficulty, never action on the case for threatening

expressly faced by our courts be- the plaintiff's workmen and cus-
which more " to
fore Lumley v. Gye, of tomers, mayhem and vex them
elsewhere. with suits if they bought any
(g) F. N. B. 87 N. ;
and see the stones"; 21 Hen. VI. 26, pi. 9,
form of the writ there. It seems " manassavit vulneravit et verbera-
' '
therefore that "picketing," so vit note that in this action the
:

soon as it exceeds the bounds of "vulneravit " is not justifiable and

persuasion and becomes physical therefore must be traversed, other-
intimidation, is a trespass at wise under a plea of son assault
common law against the employer. demesne; 22 Ass. 102, pi. 76, is
(h] 14 Ed. IV. 7, pi. 13, a writ for actual beating, aggravated by
"
quare tenentes suos verberavit carrying away timber of the plain-
per quod a tenura sua recesse- tiff's (merimentum = materiamen,
runt" 9 Hen. VII. 7, pi. 4, action
;
see Du
Cange, s. v. materia; a
for menacing plaintiff's tenants at Latin maeremium and a law-French
will " de vita et mutilatione mem- meresme are also found). Cp. Reg.
 MENACING SERVANTS OR TENANTS. 213

In the early years of the eighteenth century the genius

of Holt found the way to use this, together with other

special classes of authorities, as a foundation for the

broader principle that "he that hinders another in his
trade or livelihood is liable to an action for so hindering
him "(a'), subject, of course, to the exception that no

wrong done by pursuing one's own trade or livelihood

is

in the accustomed manner though loss to another may

be the result (k) and even the intended result (/). His-
torically both this principle and that of Lumley Gye (m)v.
" servitium amisit"
are developments of the old per quod ;

but in the modern law they depend on different and

much wider reasons, and raise questions which are not
technical but fundamental. We shall therefore deal with
them not here but under another head.

Brev. (1595) 104 a, "quando te- 11 East 574 n.

nentes non audent morari super (Jc]
Ib. 576 ; supra, p. 133.
tenuris suis," and Tarleton v. (t) Mogul Steamship Co \ McGre-. .

McGaivley (1794) Peake 270 [205], gor (1889) 23 Q. B. Div. 598, 58

action for deterring negroes on the L. J. Q. B. 465.
coast of Africa from trading with (m) 2 E. & B. 216, 22 L. J. Q. B.
plaintiff's ship. 463(1853).
(i) Keeble v. Hickeringill (1705)
314

OHAPTEE VII.

DEFAMATION.

Civil and REPUTATION and honour are no less precious to good men
juris-
than bodily safety and freedom. In some cases they may
diction
distin-
be dearer than life itself. Thus it is needful for the peace
guished. and well-being of a civilized commonwealth that the law
should protect the reputation as well as the person of the
citizen. In our law some kinds of defamation are the
subject of criminal
proceedings, as endangering public
order, or being offensive to public decency or morality.
"We are not here concerned with libel as a criminal
offence, but only with the civil wrong and the right to
redress in a civil action : and we may therefore leave aside
allquestions exclusively proper to the criminal law and
procedure, some of which are of great difficulty (a).

Slander The wrong of defamation may be committed either by

and libel
distin- way of speech, or by way of writing or its equivalent.
guished. For this purpose itbe taken that significant gestures
may
(as the finger-language of the deaf and dumb) are in the
same case with audible words and there is no doubt that
;

drawing, printing, engraving, and every other use of per-

manent visible symbols to convey distinct ideas, are in the
same case with writing. The term slander is appropriated
to the former kind of utterances, libel to the latter. Using

(a) Such as
the definition of blasphemous libel, and the grounds on
which it is punishable.
 SLANDER AND LIBEL. 215

" "
the terms " written and " spoken in an extended sense,
to include the analogous cases just mentioned, we may say

that slander a spoken and libel is a written defamation.

is

The law has made a great difference between the two.

Libel isan offence as well as a wrong, but slander is a
civil wrong only (b) Written utterances are, in the ab-
.

sence of special ground of justification or excuse, wrongful

as against any person whom they tend to bring into
hatred, contempt, or ridicule. Spoken words are action-
able only when damage can be proved to have been
special
their proximate consequence, or when they convey impu-

No branch of the law has been more fertile of litigation

than this (whether be more moved by a keen

plaintiffs
sense of honour, or by the delight of carrying on personal
controversies under the protection and with the solemnities
of civil justice), nor hasany been more perplexed with
minute and barren distinctions. This latter remark applies
especially to the law of slander ;
for the law of libel, as a
civil cause of action, indeed overgrown with a great mass
is

of detail, but is in the main sufficiently rational. In a

work like the present it is not possible to give more than
an outline of the subject. Those who desire full informa-
tion will find it in Mr. Blake Odgers' excellent and ex-
haustive monograph (<?). We shall, as a rule, confine our
authorities and illustrations to recent cases.

(b) Scandalum magnatum was, and Slander, &c. By W. Blake

and in strictness of law still might Odgers. London, 2nd ed. 1887.

be, an exception to this Blake : Part IV. of Mr. Shortt's " Law
Odgers, Digest of the Law of relating to Works of Literature
Libel and Slander, 134137. Mr. and Art" (2nd ed.
London, 1884),
Odgers has not found any case may alsobe usefully consulted:
after 1710. but this does not cover the whole
(c) A Digest of the Law of Libel ground.
216 DEFAMATION.

1. Slander.

"When Slander an actionable wrong when special damage

is

action- can be shown to have followed from the utterance of the

words complained of, and also in the following cases :

/ Where the words impute a criminal offence.

Where they impute having a contagious disease which
would cause the person having it to be excluded from
society.
Where they convey a charge of unfitness, dishonesty, or
/
incompetence in an office, profession, or trade, in
short, where they manifestly tend to prejudice a man
in his calling.

Spoken words which afford a cause of action without

proof of special damage are said to be actionable per se :

the theory being that their tendency to injure the plain-
tiff's reputation law does not require
is so manifest that the

evidence of their having actually injured it. There is

much cause however to deem this and other like reasons
given in our modern books mere afterthoughts, devised to
justify the results of historical accident a thing so :

common in current expositions of English law that we

need not dwell upon this example of it (d).

Meaning No such distinctions exist in the case of libel : it is

OT ^ ^
'W^'iwZ/!/

facie enough to make a written statement prim* facie libellous

Libellous.
^^ ^
injurious to the character or credit (domestic,
y.

public, or professional) of the person concerning whom it

is uttered, or in any way tends to cause men to shun his

(d) See Blake Odgers, pp. 2 4, acquaintances are likely to read,

and Amer. Law Rev. 593. It and refuse to presume it from the
seems odd that the law should communication of the
direct oral

presume damage to a man from same matter to the persons most

printed matter in a newspaper likely to act upon it.

which, it may be, none of his

 SLANDER SPECIAL DAMAGE.
I 217

society, or to bring him into hatred, contempt, or ridicule.

When we call a statement prima facie libellous, we do not

mean that the person making it is necessarily a wrong-
doer, but that he will be so held unless the statement is
found to be within some recognized ground of justification
or excuse.
Such are the rules as to the actionable quality of words,

if that be a correct expression. The authorities by which

they are illustrated, and on which they ultimately rest,
are to a great extent antiquated or trivial (e) ; the rules
themselves are well settled in modern practice.

" "
Where the ground of action, we
special damage is Special

have to do with principles already considered in a former

chapter (/) namely, the damage must be in a legal sense
:

the_aatnral and probable result of tho wuids complained

" the
of. It has been said that it must also be legal and
"
natural consequence of the words spoken in this sense,
that A. speaks words in disparagement of B. which are
if

not actionable per se, by reason of which speech C. does

something to B.'s disadvantage that is itself wrongful as

against B. (such as dismissing B. from his service in breach
of a subsisting contract), B. has no remedy against A., but
only against C. (g). But this doctrine is contrary to prin-

ciple : the question is not whether C.'s act was lawful or

unlawful, but whether it
might have been in fact reason-
ably expected to result from the original act of A. And,
though not directly overruled, it has been disapproved

by so much and such weighty authority that we may say

(e)
The old abridgments, e.g. reported by Coke, 4 Rep. 12 b
Bolle, sub tit. Action sur Case, 20 b.
Pur Parolls, abound in examples, (/) P. 28, above,
many of them sufficiently gro- (g] Vicars v. Wikocto (1806) 8
tesque. A select group of cases is East 1.
218 DEFAMATION.

it is not law (ti)

. There
authority for the proposition
is

that where spoken words, defamatory but not actionable in

themselves, are followed by special damage, the cause of

action is not the original speaking, but the damage
itself (i). This does not seem to affect the general test of
liability. Either way the speaker will be liable if the

damage is an intended or natural consequence of his words,

otherwise not.

Repetition It is settled however that no cause of action is afforded

words. by special damage arising merely from the voluntary
repetition of spoken words by some hearer who was not
under a legal or moral duty to repeat them. Such a con-
sequence is deemed too remote (/). But if the first speaker
authorized the repetition of what he said, or (it seems)

spoke to or in the hearing of some one who in the per-

formance of a legal, official, or moral duty ought to repeat
it, he will be liable for the consequences (k).

Special Losing the general good opinion of one's neighbours,

damage
involves a consortium vicmorum as the phrase goes, is not of itself

temporal special damage. A loss of

some material advantage must
loss.
J.JQ gnowilt Defamatory words not actionable per se were
spoken of a member of a religious society who by reason
thereof was excluded from membership there was not :

any allegation or proof that such membership carried with

(h) Lynch v. Knight (1861) 9 that he left her).

H. L. C. 577. See notes to Vicars (Jc]
Blake Odgers 331. Riding v.
Sm. L. C.
v. Wilcocks, in 2 Smith (1876) 1 Ex. D. 91, 45 L. J.

(i)
Maule J. ex relat. Bramwell Ex. 281, must be taken not to in-
L. J., 7 Q. B. D. 437. terfere with this distinction, as the

(/) Parkins v. Scott (1862) 1 H. majority of the court disclaimed

& C. 153, 31 L. J. Ex. 331 (wife any intention of so doing: but see
repeated to her husband gross thereon Mayne on Damages, 4th
language used to herself, where- ed. 72.
fore the husband was so much hurt
 SLANDER IMPUTATION OF CRIME.
I 219

it as of right any definite temporal advantage. It was

held that no loss appeared beyond that of consortium
vicinorum,and therefore there was no ground of action (/).
Yet the loss of consortium as between husband and wife is
a special damage of which the law will take notice (m),
and so is the loss of the voluntary hospitality of friends,
on the ground that a dinner in a friend's house
this last

and at his expense is a thing of some temporal value (n) .

Actual membership of a club is perhaps a thing of tem-

poral value for this purpose, but the mere chance of being
elected is not : so that an action will not lie for speaking

disparaging words of a candidate for a club, by means

whereof the majority of the club decline to alter the rules
in a manner which would be favourable to his election.
" The risk of
temporal loss is not the same as temporal
loss"(o). Trouble of mind caused by defamatory words
is not sufficient special damage, and illness consequent
"
upon such trouble is too remote. Bodily pain or suffer-
ing cannot be said to be the natural result in all per-
sons" (p).

As to the several classes of spoken words that may be Imputa-

actionable without damage words sued on as
special :
criminal
offence -
imputing crime must amount to a charge of some offence
which, if proved against the party to whom it is imputed,
would expose him imprisonment or other corporal
to

penalty (not merely to a fine in the first instance, with

possible imprisonment in default of payment) (q). The

(I) Roberts v. Roberts (1864) 5 B. Q. B. Div. 407 ; per Bowen L. J.

6 S. 384, 33 L. J. Q. B. 249. at p. 416, 52 L. J. Q. B. 277. The
(m) Lynch v. Knight, 9 H. L. C. damage was also held too remote.
677. (p) Allsop v. Allsop (1860) 5 H.
Daviesv. Solomon (1871) L. E.
(n) & N. 534, 29 L. J. Ex. 315.
7 Q. B. 112, 41 L. J. Q. B. 10. (q) This is the true distinction :

(o) Chamberlain v. Boyd (1883) 11 it matters not whether the offence

220 DEFAMATION.

offence need not be specified with legal precision, indeed

it need not be words impute felony
specified at all if the

generally. But if particulars are given they must be

legally consistent with the offence imputed. It is not
actionable per se to say of a man that he stole the parish

bell-ropes when he was churchwarden, for the legal pro-

perty is vested in him ex offlcio (r) it might be otherwise;

to say that he fraudulently converted them to his own use.

The practical inference seems to be that minute and
copious vituperation is safer than terms of general re-
"
proach, such as thief," inasmuch as a layman who enters
on details will probably make some impossible combination.

Charges of False accusation of immorality or disreputable conduct

mere im-
morality not punishable by a temporal court is not actionable per se,
^ '

however The
gross. might without violence have
courts

presumed that a man's reputation for courage, honour, and

truthfulness, a woman's for chastity and modest conduct,
was something of which the loss would naturally lead to

damage in any lawful walk of life. But the rule is other-

" the
wise, and we can only say with Lord Blackburn that
law upon the subject of disparaging words spoken of other
"
persons is not in a satisfactory state (s). It has gone

be indictable or punishable by a (r) Jackson v. Adams (1835) 2

court of summary jurisdiction :
Bing. N. C. 402. The words were,
Webb Beavan (1883) 11 Q. B. D.
v. "who stole the parish bell-ropes,

609, 52 L. J. Q. B. 544. In the you scamping rascal?" If spoken

United States the received opinion is while the plaintiff held the office,
that such words are actionable only they would probably have been
"incase the charge, if true, will actionable, as tending to his pre-
subject the party charged to an in- judice therein,
dictment for a crime involving (s) 5 B. & S. at p. 390. The
moral turpitude, or subject him to technical reason is that charges of
an infamous punishment :" Brooker incontinence, heresy, &c., were
v. Coffin (1809) 5 Johns. 188, Bige- "spiritual defamation," and the
low L. C. 77, 80 ;
later authorities matter determinable in the Eccle-
ap. Cooley on Torts, 197. siastical Court acting pro salute
 SLANDER IN OFFICE OR BUSINESS.
I 221

wrong from the beginning in making the damage and not

the insult the cause of action ;
and this seems the stranger
when we have seen that with regard to assault a sounder

principle is well established (t).

A. person who has committed a felony and been con-
victed may not be called a felon after he has undergone
the sentence, and been discharged, for he is then no longer
a felon in law (u) .

Little need be said concerning imputations of contagious Imputa-

disease unfitting a person for society : in the contagious
that is,
disea8e
modern law, venereal disease (x). The only notable point
-

isthat " charging another with having had a contagious

disorder is not actionable ; for unless the words spoken
.

impute a continuance of the disorder at the time of speak-

ing them, the gist of the action fails for such a charge ;

cannot produce the effect which makes it the subject of an

"
action, namely, his being avoided by society (y). There
does not seem to be more than one reported English case
of the kind within the present century (z) .

Concerning words spoken of a man to his disparagement Evil-

in his office, profession, or other business they are action- Of a man
:

n
able on the following conditions :
They must be spoken of ^
"
way
^
him in relation to or " in the way of a position which he business,
holds, or a business he carries on, at the time of speaking.
"Whether they have reference to his office or business is, in

animae. See Davis v. Gardiner, 4 Odgers 64.

Co. Rep. 16 b; Palmer v. Thorpe, (y) CarslaJce v.
Mapledoram (1788)
ib. 20 a. 2 T. B. 473, Bigelow L. C. 84, per
P. 192, above.
(t) Ashhurst J.
(u) Leyman v. Latimer (1878) 3 (z) Bloodworth v. Gray (1844) 7
Ex Div. 352, 47 L. J. Ex. 470. M. & Gr. 334. The whole of the
Leprosy and, it is said, the
(x) judgment runs thus: "This case
plague, were in the same category. falls within the principle of the old
Small-pox is not. See Blake authorities."
222 DEFAMATION.

case of doubt, a question of fact. And they must either

amount to a direct charge of incompetence or unfitness, or

impute something so inconsistent with competence or

fitness that, if believed, it would tend to the loss of the

party's employment or business. To call a stonemason a

" "
ringleader of the nine hours system is not on the face

of it against his competence or conduct as a workman,

or a naturaland probable cause why he should not get
work such words therefore, in default of anything show-
;

ing more distinctly how they were connected with the

plaintiff's occupation, were held not to. be actionable (a).

Spoken charges of habitual immoral conduct against a

clergyman or a domestic servant are actionable, as na-
turally tending, if believed, to the party's deprivation
or other ecclesiastical censure in the one case, and dis-
missal in the other. Of a clerk or messenger, and even
of a medical man, it is otherwise, unless the imputation
is in some way with his occupation.
specifically connected
It is actionable to charge a barrister with being a dunce,
or being ignorant of the law; but not a justice of the

peace, for he need not be learned. It is actionable to

charge a solicitor with cheating his clients, but not with

cheating other people on occasions unconnected with his

business (b) .

It makes no difference whether the office or profession

carries with it any legal right to temporal profit, or in

point of law is wholly or to some extent honorary, as in
the case of a barrister or a fellow of the College of Phy-
sicians. Nor does it matter what the nature of the
employment is, provided it be lawful (c) or whether the ;

conduct imputed is such as in itself the law will blame or

(a) Miller v. David (1874) L. K. Bing. N. C. 835, and authorities

9 C. P. 118, 43 L. J. C. P. 84. there cited.

(fl) DoyUy v. Roberts (1837) 3 (c}

L. E. 2 Ex. at p. 330.
 SLANDER IN OFFICE OR BUSINESS.
: 223

not, provided it is inconsistent with the due fulfilment of

what the party, in employment or office, has
virtue of his
undertaken. A gamekeeper may have an action against
one who says of him, as gamekeeper, that he trapped
foxes (cl)
. As regards the reputation of traders the law
has taken a broader view than elsewhere. To impute
insolvency to a tradesman, in any form whatever, is action-
able. Substantial damages have been given by a jury,
and allowed by the court, for a mere clerical error by
which an advertisement of a dissolution of partnership was
printed among a list of meetings under the Bankruptcy
.Act(e).

There are cases, though not common in our books, in Words

y
which a man suffers loss in his business as the intended or
causing
" natural and " dama
of words spoken in relation
ft
probable result to a man
to that business, but not against
CJ
the man's own character in his
-1 *

or conduct where a wife or servant dwelling at his

: as

place of business is charged with misbehaviour, and the

credit of the business is thereby impaired. In such a case
an action lies, but is not, it seems, properly an action of
slander, but rather a special action (on the case in the old

system of pleading) analogous to those which have been

-

allowed for disturbing a man in his calling, or in the

exercise of a right in other ways. It is doubtful how
far^
the rule that a man is not liable for unauthorized repetition (
of his spoken words applies to an action of this kind (/) . V
On principle the conditions of liability would seem to be
that the defendant made
the original statement without
belief in its truth (for the cause of action is more akin to

(d) Foulger v. Newcomb (1867) (/) Riding v. Smith (1876) 1 Ex.

L. R. 2 Ex. 327, 36 L. J. Ex. 169. D. 91, 45 L. J. Ex. 281 see Mr.
;

(e) Blake Odgers 80 Shepheard ;

Blake Odgers and Mr. J. D. Mayne
v. Whitaker (1875) L. K. 10 C. P. thereon.
502.
224 DEFAMATION.

deceit than to defamation), and that he expected, or had

reasonable cause to expect, that it would be repeated in
such a manner as in fact it was, and would lead to such

damage as in fact ensued.

2. Defamation in general.

Rules as
4-^-v
(jAT fl *
We now pass to the general law of defamation, which
mation applies to both slander and libel, subject, as to slander, to
genera y.
^Q con(ji^ ons an(j distinctions we have just gone through.
Considerations of the same kind may affect the measure of
damages for written defamation, though not the right of
action itself.

"Implied It is commonly said that defamation to be actionable

mnlipf1
must be malicious, and the old form of pleading added
"maliciously" to "falsely." Whatever may have been
the origin or the original meaning of this language (#),
malice in the modern law signifies neither more nor less,
in this connexion, than the absence of just cause or
excuse (k) ;
and law implies malice from
to say that the

the publication of matter calculated to convey an actionable

imputation is only to say in an artificial form that the

person who so publishes is responsible for the natural con-
" "
sequences of his act (i). Express malice means some-
thing different, of which hereafter.

What is
Evil-speaking, of whatever kind, is not actionable if
publica-
tion, communicated only to the person spoken of. The cause of

(g) See Bigelow L. C. 117. intentionally without just cause or

(h] Bayley J. in Bromage v. excuse:" so too Littledale J. in
Prosser (1825) 4 B. & C. at p. 253, McPher&on v. Daniels (1829) 10 B.
" Malice in &
Bigelow L. C. 137: C. 272.
common acceptation means ill-will (i) Lord Blackburn in Capital
against a person, but in its legal and Counties Bank v. Henty (1882)
sense it means a wrongful act done 7 App. Ca. 787, 52 L. J. Q. B. 232 .
 PUBLICATION. 225

action not insult, but proved or presumed injury to

is

reputation. Therefore there must be a communication by

the speaker or writer to at least one third person and this ;

necessary element of the wrongful act is technically called

publication. It need not amount
anything like publica- to

tion in the common usage of the word. That an open

message passes through the hands of a telegraph clerk (/),
or a manuscript through those of a compositor in a print-

ing-office (k) is enough to constitute a publication to those

,

persons if they are capable of understanding the matters

so delivered to them. Every repetition of defamatory
words is a new publication, and a distinct cause of action.

The sale of a copy of a newspaper, published (in the

popular sense) years ago, to a person sent to the

many
newspaper office by the plaintiff on purpose to buy it, is a
fresh publication (I). It appears on the whole that if the
defendant has placed defamatory matter within a person's
reach, whether it is likely or not that he will attend to the

meaning of it, this throws on the defendant the burden of

proving that the paper was not read, or the words heard
by that person ; but if it is proved that the matter did not
come to his knowledge, there is no publication (m). A
person who is an unconscious instrument in circulating

libellous matter, not knowing or having reason to believe

that the document he circulates contains any such matter,

is free from liability if he proves his ignorance. Such is
the case of a newsvendor, as distinguished from the pub-

lishers, printers, and owners of newspapers.

"
A news-

(/) See Williamsons. Freer (1814) the text to be printed is Arabic or

L. K.. 9 C. P. 393, 43 L. J. C. P. Chinese, or the message in cipher.
161. (I)
Duke of Brunswick \. Harmer
(k) Printing is for this reason (1849) 14 Q. B. 185, 19 L. J. Q. B.
prima facie a publication, Baldwin 20.
v. Elphimton, 2 W. Bl. 1037. (m) Blake Odgers 154.
There are obvious exceptions, as if

p. u
226 DEFAMATION.

paper is not like a fire ;

a man may carry it about without
"
being bound to suppose that it is
anjnjury (n). likely to do
If A. is justified in making a disparaging communication
about B.'s character to C. (as, under certain conditions,
we shall see that he may be), it would seem upon the
tendency and analogy of the authorities now before us
that this will be no excuse if, exchanging the envelopes of
two letters by inadvertence, or the like, he does in fact
communicate the matter to D. It has been held other-

wise (0), but we do not think the decision is generally

accepted as good law if it is right on principle, the
:

" "
earlier authorities on publication can hardly be right
also.

Sending a defamatory letter to a wife about her husband

is a publication "man and wife are in the eye of the law,
:

for purposes, one person, and for many purposes"

many
" different "
of which this is one persons (p).

Vicarious the general principles of liability, a man is deemed

On
'

tion. to publish that which is published by his authority. And

the authority need not be to publish a particular form of
words. A
general request, or words intended and acted
on as such, to take public notice of a matter, may make
the speaker answerable for what is published in conformity
to the general
" sense and substance " of his
request (<?).

() Emmens v. Pottle (1885) 16 the defendant to his wife is not a

Q. B. Div. 354, per Bowen L. J. publication Wennhak v. Morgan
:

at p. 358, 55 L. J. Q. B. 51. But (1888) 20 Q. B. D. 635, 57 L. J.

it seems the vendor would be liable Q. B. 241.
if he had reason to know that the (q) ParJces v. Prescott (1869) L.
publication contained, or was likely B,.4 Ex. 169, 38 L. J. Ex. 105,
to contain, libellous matter. Ex. Ch. Whether the particular
(o) Tompson v. Dashwood (1883) publication is within the authority
11 Q. B. D. 43, 52 L. J. Q. B. 425. is a question of fact. All the
(p) Wenman v. Ash (1853) 13 Court decide is that verbal dicta-
C. B. 836, 22 L. J. C. P. 190, per tion or approval by the principal
Maule J. But communication by need not be shown.
 INNUENDO. 227

A person who
generally responsible for publication
is

(such as an editor), and who has admitted publication, is

not as a rule bound to disclose the name of the actual
author (r) .

Supposing the authorship of the words complained of to Construe -

be proved or admitted, many questions may remain. words :

The construction of words alleged to be libellous (we

"
shall now use this term as equivalent to defamatory,"
unless the context requires us to advert to any distinction

between libel and slander) is often a matter of doubt. In

the first place the Court has to be satisfied that they are"
capable of the defamatory meaning ascribed to them.
"Whether they are so is a question of law (s) If they are, .

and if there is some other meaning which they are also

capable of, it is a question of fact which meaning they did

convey under all the circumstances of the publication in

question. An averment by the plaintiff that words not

libellous in their ordinary meaning or without a special

application were used with a specified libellous meaning or _

application is called an innuendo, from the old form of

pleading. The old cases contain much
minute, not to say
frivolous, technicality ; but the substance of the doctrine is
now reduced to something like what is expressed above.
The requirement of an innuendo, where the words are not
on the face of them libellous, is not affected by the aboli-
tion of forms of pleading. It is a matter of substance, for
a plaintiff who sues on words not in themselves libellous,

(r) Gibson v. Evans (1889) 23 Q. upon consideration, not to be

B. D. 384, 58 L. J. Q. B. 612. capable of such a meaning-, see Mul-
(s) Capital and Counties Sank v. ligan v. Cole (1875) L. R. 10 Q. B.
Henty (1882) App. Ca. 741, 52
7 549, 44 L. J. Q. B. 153; for one
L. J. Q. B. 232, where the law on the other side of the line, Hart
is elaborately discussed. For a v. Wall (1877) 2 C. P. D. 146, 46
shorter example of words held, L. J. C. P. 227.

Q2
228 DEFAMATION.

and does not claim that they conveyed a

allege in his

libellous meaning, and show what that meaning was, has

failed to show any cause of action (t). Again, explanation

is required if the words have not, for judicial purposes, any
received ordinary meaning at all, as being foreign, pro-

vincial, or the like (u) . This however is not quite the

same thing as an innuendo. A libel in a foreign language
might need both a translation to show the ordinary mean-
ing of the words, and a distinct further innuendo to show
that they bore a special injurious meaning.

Libellous The actionable or innocent character of words depends

7
must* be n t on the intention with which they were published, but

mlawlna on ^e r actual meaning and tendency when

^
published (t?).

proved in A man is bound to know the. natural effect of the language

he uses. But where the plaintiff seeks to put an action-
able meaning on words by which it is not obviously con-
veyed, he must make out that the words are capable of that
meaning (which is matter of law) and that they did con-
vey (which is matter of fact) so that he has to con-
it :

vince both the Court and the jury, and will lose his cause
if he fail with either (x). "Words are not deemed capable
of a particular meaning merely because it might by possi-
bility be attached to them there must be something in
:

either the context or the circumstances that would suggest

the alleged meaning to a reasonable mind (y). In scho-
lastic language, it is not enough that the terms should be
" "
of the injurious construction
patient they must not ;

only suffer it. but be fairly capable of it.

(0 See 1 App. C. 748 (Lord (y) Lord Selborne, 7 App. Ca.

Selborne). 744; Lord Blackburn, ib. 778;
(u) Blake Odgers 109112. Lord Bramwell, ib. 792, "I think
(v) 7 App. Ca. 768, 782, 790, cf. that the defamer is he who, of
P- 787. many inferences, chooses a defa-
(x) Lord Blackburn, 7 App. Ca. matory one."
776.
 REPETITION.

The publication is no less the speaker's or writer's own Repeti-

act, and none the less makes him answerable, because he reports

only repeats what he has heard. Libel may consist in a 5? ^u

fair report of statements which were actually made, and on
an occasion which then and there justified the original

speaker in making them (s) slander in the repetition of a

;

rumour merely as a rumour, and without expressing any

belief in its truth (a). "A
wrongfully and man may
maliciously repeat that which another person may have
uttered upon a justifiable occasion," and " as great an
injury may accrue from the wrongful repetition as from the
first publication of slander; the first utterer may have
been a person insane or of bad character. The person who
"
repeats it gives greater weight to the slander (b). Cir-
cumstances of this kind may 'count for much in assessing

damages, but they count for nothing towards determining

whether the defendant is liable at all.
From this principle it follows, as regards
spoken words, 1
that if A. speak of Z. words actionable only with special

damage, and B. repeat them, and special damage ensue

from the repetition only, Z. shall have an action against
B., but not against A. (c). As to the defendant's belief in
the truth of the matter published or republished by him,
that may affect the damages but cannot affect the liability.
Grood faith occurs as a material legal element only when
we come to the exceptions from the general law that a man
utters defamatory matter at his own peril.

(z)
1'urcell v. Sowler (1877) 2 C. 4th Resolution reported in the Earl
P. Div. 215, 46 L. J. C. P. 308. of Northampton' s case, 12 Co. Rep.
(a) Watkin v. Hall (1868) L. R. 134, is not law. See per Parke J.,
3 Q. B. 396, 37 L. J. Q. B. 125. 10 B. & C. at p. 275.

(b} Littledale J., McPherson v. (c) See Parkins

v. Scott (1862) 1

Daniels (1829) 10 B. &C. 263, 273, H. & C. 153, 31 L. J. Ex. 331,

adopted by Blackburn J., L. R. 3 P- 218, above.

Q. B. 400. The latter part of the
230 DEFAMATION.

3. Exceptions.

Excep- "\ye now have to mention the conditions which exclude,

tions: fair . .

comment, if present, liability for words apparently injurious to

reputation.
Nothing is a libel which is a fair comment on a subject

fairly open to public discussion. This is a rule of common

right, not of allowance to persons in any particular situa-
tion (d) ;
and it is not correct to speak of utterances pro-
tected by it as being privileged. A man is no more
privileged to make fair comments in public on the public

conduct of others than to compete fairly with them in

trade, or to build on his own land so as to darken their

newly-made windows. There is not a cause of action

with an excuse, but no cause of action at all. " The
question is not whether the article is
privileged, but
whether it is a libel" (e).
This is settled by the leading
/ case of Cqm^hdl-^fr^S^offuwoode (/), confirmed by the
Court of Appeal in Merivale v^Cgmw. (g) . On the other

hand, the honesty of the critic's belief or motive is no

defence. The right is to publish such comment as in the

opinion of impartial bystanders, as represented by the

jury, may fairly arise out of the matter in hand. What-
ever goes beyond this, even if well meant, is libellous.

The courts have, perhaps purposely, not fixed any

"
standard of "fair criticism (h). One test very commonly
applicable is the distinction between action and motive ;

public acts and performances may be freely censured as to

(d) See per Bowen L. J., Meri- (g) (1887) 20 Q. B. Div. 275.
vale v. Carson (1887) 20 Q. B. Div. This must be taken to overrule
at p. 282, 58 L. J.Q. B. 548. whatever was said to the contrary
(e)
Lord Esher M. E., ib. at p. inHemvood v. Harrison (1872) L. R.
280. 70. P. 606, 626, 41 L. J. C. P. 206.
(/) 3 B. & S. 769, 32 L. J. Q. B. (h) Bowen L. J., 20 Q. B. Div.
185 (1863). at p. 283.
 FAIR COMMENT. 231

their merits or probable consequences, but wicked or dis-

honest motives must not be imputed upon mere surmise.
Such imputations, even if honestly made, are wrongful,
"
unless there is in fact good cause for them. Where a
person has done or published anything which may fairly
be said to have invited comment .... every one has a

right to make a
and proper comment and as long as
fair ;

he keeps within that limit, what he writes is not a libel ;

but that is not a privilege at all. Honest belief may . . .

frequently be an element which the jury may take into

consideration in considering whether or not an alleged
libel was in excess of a fair comment but it cannot in ;

itself prevent the matter being libellous" (i).

The case of a criticism fair in itself being proved to be
due to unfair motives in the person making it is not known
to have arisen, nor is it likely to arise, and it need not be
here discussed (/). On principle it seems that the motive
is immaterial; for if the criticism be in itself justifiable,

there nothing to complain of unless it can be said that

is ;

comment proceeding from an indirect and dishonest in-

tention to injure the plaintiff is not criticism at all (k).
Evidence tending to show the presence of improper motives
might well also tend to show that the comment was not
fair in itself, and thus be material on either view ;
as on
the other hand to say of some kinds of criticism that

there is no evidence of malice is practically equivalent to

saying there is no evidence of the comment being other-

wise than fair (I).

(i)
Blackburn J., Campbell v. Sampson (1879) 5 Ex. Div. 53, 49
Spottisu-oode, 32 L. J. Q. B. at p. L. J. Q. B. 120 and per Lord
;

202 ; cp.Bowen L. J., 20 Q. B. Div. Esher M. K., 20 Q. B. Div. at p.

at p. 284. 281.

(j) See however Wason v. Walter (k} Lord Esher M. R,., Merivale
(1868) L. R. 4 Q. B. at p. 96, 38 v. Carson, 20 Q. B. Div. 275, 281.
L. J. Q. B. 34, and Stevens v. (I)
On this ground the actual
232 DEFAMATION.

What is "What acts and conduct are open to public comment is a

open to . , . .
i

question for the Court, but one of judicial common sense

,,

comment,
rather than of technical definition. Subject-matter of this
kind be broadly classed under two types.
may
The matter may be in itself of interest to the common
weal, as the conduct of persons in public offices or affairs (m) ,
of those in authority, whether imperial or local (n), in
the administration of the law, of the managers of public
institutions in the affairs of those institutions, and the

like.

Or it be laid open to the public by the voluntary^

may
act of the person concerned. The writer of a book offered
for sale, the composer of music publicly performed, the
author of a work of art publicly exhibited, the manager of
a public entertainment, and all who appear as performers
therein, the propounder of an invention or discovery

publicly described with his consent, are all deemed to

submit their work to public opinion, and must take the
risks of fair criticism ;
which
being itself a public
criticism,

act, is in like manner open to reply within commensurate

limits.

Whether What a question of fact,

comment
is actually fair criticism is

is fair,
provided the words are capable of being understood in a
fact (if
sense beyond the fair (that is, honest) expression of an

construe-
unfavourable opinion, however strong, on that which the

decision in Henwood v. Harrison, the conduct of public worship and

note (#), p. 230, supra, may have whatever is incidental thereto is
been right; see however the dis- matter of public interest Kelly v.:

senting judgment of Grove J. Tinting (1865) L. E. 1 Q. B. 699,

(m) Including the conduct at a 35 L. J. Q. B. 940, cp. Kelly v.
public meeting of persons who Sherlock (1866) L. E. 1 Q. B. at
attend it as private citizens Davis :
p. 689, 35 L. J. Q. B. 209.
v. Duncan (1874) L. E. 9 C. P. 396, (n} Purcell v. Sowler, 2 C. P. Div.
43 L. J. C. P. 185. A clergyman 215, 46 L. J. C. P. 308.
is a public officer, or at any rate
 JUSTIFICATION BY TRUTH. 233

plaintiff has submitted to the public this is only an : tion pos-

application of the wider principle above stated as to the

construction of a supposed libel (0) .

In literary and
usage criticism is hardly allowed
artistic

to be fair which does not show competent intelligence of

the subject-matter. Courts of justice have not the means
of applying so fine a test and a right of criticism limited
:

to experts would be no longer a common right but a

privilege.
The right of fair criticism will, of course, not cover

untrue statements concerning alleged specific acts of mis-

conduct (p)j or purporting to describe the actual contents
of the work being criticised (q).

Defamation is not actionable if the defendant shows Justifies -

Ihatthe defamatory matter was true and if it was so, the ground ; of

purpose or motive with which it was published is irrelevant.

For although in the current phrase the statement of matter
"true in substance and in fact" is said to be justified,
this is not because any merit attached by the law to the
is

disclosure of all truth in season and out of season (indeed

it may be a criminal offence), but because of the demerit
attaching to the plaintiff if the imputation is true,
whereby
he is deemed
have no ground of complaint for the fact
to

being communicated to his neighbours. It is not that

uttering truth always carries its own justification, but that

the law bars the other party of redress which he does not
deserve. Thus the old rule is explained, that where truth
is relied on for justification, it must be
specially pleaded ;

the cause of action was confessed, but the special matter

(o) Merivale v. Carson (1887) 20 not right.

Q. B. Div. 275 Jenner v. A' Beckett
; (p) Davis v. Shepstone (1886) J.
(1871) L. R. 7 Q. B. 11, 41 L. J. C. 11 App. Ca. 187, 55 L. J. P. C.
Q. B. 14. Qu. whether the dis- 51.

Renting judgment of Lush J. was (q) Merivalc v. Carson, supra,.

234 DEFAMATION.

" The law will not

avoided the plaintiff's right (r).

permit a man to recover damages in respect of an injury

to a character which he either does not or ought not to
"
possess (s) This defence, as authority and experience
.

show, is not a favoured one. To adopt it is to forego the

usual advantages of the defending party, and commit one-
self to a counter-attack in which only complete success will

be profitable, and failure will be disastrous.

Must be What the defendant has to prove is trjiihr4a---sttbstance,

sn nsf"fiTi
tially
that is, he must show that the imputation made or
imP e e
repeated by him was true as a whole and in every
-

material part thereof. He cannot justify part of a

statement, and admit liability for part, without distinctly
severing that which he justifies from that which he does
not (t). What parts of a statement are material, in the
sense that their accuracy or inaccuracy makes a sensible

difference in the effect of the whole, is a question of

fact (u).

There may be a further question whether the matter

alleged as justification is sufficient, if proved, to cover the

whole cause of action arising on the words complained of ;

and this appears to be a question of law, save so far as it

depends on the fixing of that sense, out of two or more
possible ones, which those words actually conveyed. It is
a rule of law that one not justify calling the editor
may
of a journal a "felon editor" by showing that he was
once convicted of felony. For a felon is one who has
actually committed felony, and who has not ceased to be a
felon by full endurance of the sentence of the law, or by a

(r^ Compare the similar doctrine (t) Fleming v. Dollar (1889) 23

in trespass, which has peculiar con- Q. B. D. 388, 58 L. J. Q. B. 548.
sequences. But of this in its place. (u) Alexander v. North Eastern

(s) Littledale J., 10 B. & C. at E. Co. (1865) 6 B. & S. 340, 34

p. 272. L. J. Q. B. 152.
 PARLIAMENTARY AND JUDICIAL PRIVILEGE. 235

pardon not a man erroneously convicted, or one who has

;

been convicted and duly discharged. But it may be for a

" "
jury to say whether calling a man a convicted felon

imputed the quality of felony generally, or only conveyed

the fact that at some time he was convicted (x). Where
the libel charges a criminal offence with circumstances of i

moral aggravation, it is not a sufficient justification to

aver the committing of the offence without those circum-

stances, though in law they may be irrelevant, or relevant

only as evidence of some element or condition of the

offence (y). The limits of the authority which the Court
" mixed
will exercise over juries in handling questions of
" to be hard to define in
fact and law must be admitted
this and other branches of the law of defamation.

Apparently it would make no difference in law that the Defen-

fiflTli" S
defendant had made a defamatory statement without any belief im-
matenal -
belief in its truth, if it turned out afterwards to have been

true when made :

as, conversely, it is certain that the most
honest and even reasonable belief is of itself no justifica-
tion. Costs, however, are now in the discretion of the
Court.

In order that public duties may be discharged without Immunity

fear, unqualified protection is given to language used in bers Of
the exercise of parliamentary and judicial functions. A
member of Parliament cannot be lawfully molested out- judges
side Parliament by civil action, or otherwise, on account
of anything said by him in his place in either House (z) .

(x} Leyman v.
Latimer (1878) 3 Wm. & M. sess. 2, c. 2, "That
Ex. Div. 352, 47 L. J. Ex. 470. the freedome of speech and de-

(y) Helsham v. Blackwood (1851)

bates or proceedings in Parlyament
11 C. B. 128, 20 L. J. C. P. 187, a ought not to be impeached or
very curious case. questioned in any court or place
(z) St. 4 Hen. VIII. c. 8 (Pro out of Parlyament."
Rlcardo Strode) ;
Bill of Eights, 1
236 DEFAMATION.

An action will not lie against a judge for any words used
by him in his judicial capacity in a court of justice (a).

It not open to discussion whether the words were or

is

were not in the nature of fair comment on the matter in

hand, or otherwise relevant or proper, or whether or not
they were used in good faith.

Other and witnesses in a court of justice

Parties, advocates,
persons in
judicial are under the like protection. They are subject to the

authority of the Court itself, but whatever they say in the

course of the proceedings and with reference to the matter
in hand is exempt from question elsewhere. It is not
slander for a prisoner's counsel to make insinuations

against the prosecutor, which might, explain some if true,

of the facts proved, however gross and unfounded those

insinuations may be (b) nor for a witness after his cross-
;

examination to volunteer a statement of opinion by way

of vindicating his credit, which involves a criminal accu-
sation against a person wholly unconnected with the
case (c). The only limitation is that the words must in
some way have reference the inquiry the Court is to

engaged in. A
duly constituted military court of inquiry
is for this purpose on the same footing as an ordinary

court of justice (d). So is a select committee of the House

of Commons (e).
Statements coming within this rule are

(a) Scott v. Stansfield (1868) L. R. (c) Seaman v. NethercUft (1876)

2
3 Ex. 220, 37 L. J. Ex. 155 ;
the C. P. Div. 53, 46 L. J. C. P. 128.

protection extends to judicial acts, (d] Daw kins v. Lord Rokeby

see the chapter of General Excep- (1873-5) Ex. Ch. and H. L., L. R.
tions above, pp. 103105, and 8 Q. B. 255, 7 H. L. 744, 45 L. J.
further illustrations op. Blake Q. B. 8, see opinion of judges 7
Odgers 188. H. L. at p. 752 Dawkinsv. Prince
;

(b) HTumif.fr v. Lamb (1883) 11 Edward of Saxe Weimar (1876) 1

Q. B. Div. 588, where authorities Q. B. D. 499, 45 L. J. Q. B. 567.

are collected. (e) Goffin v. Donnelly (1881) 6
Q. B. D. 307, 50 L. J. Q. B. 303.
 PRIVILEGED COMMUNICATIONS. 237

said to be " absolutely privileged." The reason for pre-

cluding all discussion of their reasonableness or good faith

before another tribunal is one of public policy, laid down
to the same effect in all the authorities. The law does not
seek to protect a dishonest witness or a reckless advocate,
but deems this a less evil than exposing honest witnesses
and advocates to vexatious actions.

As to reports made
in the course of naval or military Reports of

duty, but not with reference to any pending judicial pro- & c .

ceeding, doubtful whether they come under this head

it is

or that of "
qualified privilege." majority of the Court A
of Queen's Bench has held
(against a strong dissent), not
"
exactly that they are absolutely privileged," Jmt that an
ordinary court of law will not determine questions of naval
or military discipline and duty. But the decision is not
received as conclusive (/).

There is an important class of cases in which a middle Qualified

. . , -, .1 , immunity
course is taken between the common rule 01 unqualified of "privi-

responsibility for one's statements, and the exceptional communi-

rules which we have cations -"
give, as just seen, absolute protection
to the kinds of statements covered by them. In many
relations of life the law deems it politic and necessary to

protect the honest expression of opinion concerning the

character and merits of persons, to the extent appropriate
to the nature of the occasion, but not necessary to prevent

(/) J)awkinsv.LordPaulet(lS69) Hart v. Gumpach (1872) L. R. 4

L. R. 5 Q. B. 94, 39 L. J. Q. B. P. C. 439, 464, 42 L. J. P. C. 25,
53, see the dissenting judgment of is quite neutral. They declined to
Cockburn C. J., and the notes of presume that such an "absolute
Mr. Justice Stephen, Dig. Cr. L. privilege" existed by the law and
art. 276, and Mr. Blake Odgers, customs of China as to official

op. cit. 195. The reference of the reports to the Chinese Government .

Judicial Committee to the case in

238 DEFAMATION.

the person affected from showing, he can, that an if

unfavourahle opinion expressed concerning him is not

honest. Occasions of this kind are said to he privileged,
and communications made in pursuance of the duty or
right incident to them are said to he privileged by the
"
occasion. The term " giifllifiAfl pri^'lo^o is often used to
mark the requirement of good faith in such cases, in con-
" "
trast to the cases of absolute privilege ahove mentioned.
Fair reports of judicial and parliamentary proceedings are

put by the latest authorities in the same category. Such

reports must he fair and substantially correct in fact to
begin with, and also must not be published from motives
of personal ill-will ;
and this although the matter reported
" "
was absolutely privileged as to the original utterance

of it.

Conditions The conditions ofimmunity may be thus summed up :

privilege.
The occasion must be privileged and if the defendant ;

establishes this, he will not be liable unless the plaintiff can

prove that the communication was not ho^^ly made for
the purpose of discharging a legal, moral or social duty,
or with a view to the just protection of some private
interest or of the public good by giving information
appearing proper to be given, but from some improper
motive fl,nd without (^uf^jregard to truth.
Such proof may consist either in external evidence of

personal ill-feeling or disregard of the truth of the matter,

or in the manner or terms of the communication, or acts

./accompanying and giving point to it, being unreasonable

(
and improper, " in excess of tho-occ^sion." as we say.

"Express The rule formerly was, and still sometimes is, expressed
malice." . .

in an artificial manner derived from the style of pleading

at common law.
 PRIVILEGED COMMUNICATIONS. 230

The law, it presumes or implies malice in all |^

is said,
cases of defamatory words this presumption may be
;

rebutted by showing that the words were uttered on a

privileged occasion ;
but after this the plaintiff may allege
and prove express or actual malice, that is, wrong motive.
He need not prove malice in the first instance, because the
law presumes it ;
when
the presumption is removed, the
" malice in law " which
field is still open to proof. But the

was said to be presumed is not the same as the " express

"
malice which is matter of proof. To have a lawful
occasion and abuse it may be as bad as doing harm without
any lawful occasion, or worse ;
but
a different thing in
it is

substance. It is better to say that where there is a duty,

though of imperfect obligation, or a right, though not

answering to any legal duty, to communicate matter of a
certain kind, a person acting on that occasion in discharge of
the duty or exercise of the right incurs no liability, and
the burden of proof is on those who allege that he was not
so acting (g).

The occasions giving rise to privileged communications What are

may be in matters of legal or social duty, as where a confi- occasions.

dential report is made to an official superior, or in the

common case of giving a character to a servant ;
or they

may be in the way of self-defence, or the defence of an

interest common to those between whom the words or

writing pass; or they may be addressed to persons in

public authority with a view to the exercise of their
authority for the public good they may also be matter
;

published in the ordinary sense of the word for purposes

of general information.

As to occasions of private duty ;

the result of the Moral or 3
(g) See per Lord Blackburn, 7 App. Ca. 787.
240 DEFAMATION.

social authorities appears to be that any state of factsmaking it

right in the interests of society for one person to commu-
nicate to another what he believes or has heard regarding

any person's conduct or character will constitute a privi-

leged occasion (h) .

Answers to confidential inquiries, or to any inquiries

made in the course of affairs for a reasonable purpose, are

clearly privileged. So are communications made by a

person to one to whom it is his especial duty to give
information by virtue of a standing relation between
them, as by a solicitor to his client about the soundness of
a security, by a father to his daughter of full age about
the character and standing of a suitor, and the like.

Statejnejiij3--ffiate~"wttnout ^request and apart from any

special relation of confidence may or may not be privi-

leged according to the circumstances ;

but it cannot be

prudently assumed that they will be (i). The nature of

the interest for the sake of which the communication
is made (as whether it be public or private, whether it is

one touching the preservation of life, honour, or morals,

or only matters of ordinary business), the apparent im-

portance and urgency of the occasion, and other such

points of discretion for which no general rule can be laid
down, will all have their weight ; how far any of them
will outweigh the general presumption against officious

interference must always be more or less doubtful (k) .

Self-pro- Examples of privileged communications in self-protec-

i/f'
tection.

(h] per Blackburn J. in

See (k) See Coxhead v. Richards
Davies v. Snead (1870) L. R. 5 Q. B. (1846) 2 C. B. 569, 15 L. J. C. P.
at p. 611. 278, where the Court was equally
(i)
Cases of this kind have been divided, rather as to the reasonably
very troublesome. See Blake apparent urgency of the particular
Odgers 217 221. occasion than on any definable
principle.
 PRIVILEGED COMMUNICATIONS. 241

tion, or the protection of a common

a warning interest, are

given by a master to his servants not to associate with a

former fellow-servant whom he has discharged on the

ground of dishonesty (I) ;

a letter from a creditor of a
firm in liquidation to another of the creditors, conveying
information and warning as to the conduct of a member of
the debtor firm in its affairs (HI) The holder
. of a public

office, when an attack is publicly made on his official

conduct, may defend himself with the like publicity (n) .

Communications addressed in good faith to persons in a Informa-

public position for the purpose of giving them information public

go '

to be used for the redress of grievances, the punishment of

crime, or the security of public morals, are in like manner
privileged, provided the subject-matter is at least reason-

ably believed to be within the competence of the person

addressed (0). The communication to an incumbent of

reports affecting the character of his curate is privileged, at

all events if made by a neighbour or parishioner ;
so are

consultations between the clergy of the immediate neigh-

bourhood arising out of the same matter (p).

Somervilk v. Hawkins (1850)

(I)
itwould be more usual to address
10 C. B. 583, 20 L. J. C. P. 133. such a memorial to the Lord Chan-
Jfw&(1869) Ex. Ch.
(m) Spill v. cellor. Complaints made to the
L. R. 4 Ex. 232, 38 L. J. Ex. 138. Privy Council against an officer
(n) Bishop of Sodor
Laughton v. whom the Council is by statute

and Man (1872) L. K. 4 P. C. 495, empowered to remove are in this

42 L. J. P. C. 11. category; the absolute privilege
(o) Harrison v. Bush (1855) 5 of judicial proceedings cannot
E. & B. 344, 25 L. J. Q. B. 25. be claimed for them, though the
There however it was held that power in question may be exer-
it wasnot, in fact, irregular to ciseable only on inquiry: Proctor
address a memorial complaining of v. Webster (1885) 16 Q. B. D. 112,
the conduct of a justice of the 55 L. J. Q. B. 150.
peace to a Secretary of State (see (p) Clark v. Jtlolyneux (1877) 3
the judgment of the Court as to Q. B. Div. 237, 47 L. J. Q. B. 230.
the incidents of that office), though
P. B
242 DEFAMATION.

distinguished from comment) are a

Fair Fair reports (as
reports.
distinct class of publications enjoying the protection of
" "
qualified privilege to the extent to be mentioned. The
fact that imputations have been a privileged made on
occasion will, of course, not exempt from liability a person
who repeats them on an occasion not privileged. Even if
the original statement be made with circumstances of
"
publicity, and be of the kind known as absolutely privi-
leged," it cannot be stated as a general rule that republica-
tion is justifiable. Certain specific immunities have been
ordained by modern decisions and statutes. They rest on

particular grounds, and are not to be extended (q). Matter

not coming under any of them must stand on its own
merits, if it can, as a fair comment on a subject of public
interest.

Parlia-
By statute (3 & 4 Yict. c. 9, A.D. 1840) the publication
mentary
papers. of any reports, papers, votes, or proceedings of either
House of Parliament by the order or under the autho-
rity of that House is absolutely protected, and so is the

republication in full. Extracts and abstracts are protected

if in the opinion of the jury they were published bonafide,
and without malice (r).

Parlia- Fair parliamentary and public judicial pro-

reports, of
mentary-
debates ceedings are treated as privileged communications. It has
and judi-
cial pro- long been settled (s) that fair and substantially accurate
reports of proceedings in courts of justice are on this foot-
ceedings.

ing. As late as 1868 it was decided (t) that the same

[q] See Davis v. Shepstone (1886) to throw the burden of proving

J. C., 11 App. Ca. 187, 55 L. J. good faith on the publisher, which
P. C. 51. probably was not intended.
(r) See Blake Odgers, op. cif. (s)
Per cur. in Wason v. Walter,
185-6. The words of the Act, in L. R. 4 Q. B. at p. 87.
their literal construction, appear (0 Wason v. Walter, L. R. 4
 FAIR REPORTS. 243

measure of immunity extends to reports of parliamentary

debates, notwithstanding that proceedings in Parliament
are technically not public, and, still later, that it extends
to fair reports of the quasi- judicial proceedings of a body

established for public purposes, and invested with quasi-

judicial authority for effecting those purposes (it). In
the case of judicial proceedings it is immaterial whether

they are preliminary or final, and, according to the pre-

vailing modern opinion, whether contested or ex parte, and
alsowhether the Court actually has jurisdiction or not, pro-
vided that it is acting in an apparently regular manner (x) .

The report need not be a report of the whole proceedings,

provided it and substantially complete account
gives a fair
of the case : but whether it does give such an account seems
to be a pure question of fact, even if the part which is

separately reported be a judgment purporting to state the

facts (y). The report must not in any case be partial to
the extent of misrepresenting the judgment (z) It may be .

libellous to publish even a correct extract from a register of

judgments in such a way as to suggest that a judgment is

outstanding when it is in fact satisfied (a). By statute
" a fair and accurate
report in any newspaper of proceed-
ings publicly heard before any court exercising judicial

Q. B. 73, 38 L. J. Q. B. 34. And the proceeding reported was an

editorial comments on a debate application to a police magistrate,
published by the same newspaper who, after hearing the facts stated,
which publishes the report are declined to act on the ground of
entitled to the benefit of the want of jurisdiction Lewis v. Levy
:

general rule as to fair comment on (1858) E. B. & E. 537, 27 L. J.

public affairs ib. Cp. the Ger-
:
Q. B. 282.
man Federal Constitution, arts. 22, Macdougall v. Knight (1889)
(y)
30. HApp.Ca. 194, 58L.J. Q. B. 537.
(u) Allbutt v. General Council of (z) Hayward $ Co. v. Hayward
Medical Education (1889) 23 Q. B. # Son (1886) 34 Ch. D. 198, 56 L,
Div. 400, 58 L. J. Q. B. 606. J. Ch, 287.

(x) Usili v. Sales (1878) 3 C. P. (a) Williams v. Smith (1888) 22

D. 319, 47 L. J. C. P. 323, where Q. B. D. 134, 58 L. J. Q. B. 21.
244 DEFAMATION.

"
authority "if published contemporaneously with such
is,

proceedings," privileged (b). The rule does not extend to

justify the reproduction of matter in itself obscene, or
otherwise unfit for general publication (<?), or of proceedings
of which the publication is forbidden by the Court in which

they took place.

Volun- Anordinary newspaper report furnished by a regular

reports. reporter is all but conclusively presumed, if in fact fair
and substantially correct, to have been published in good
faith but an outsider who sends to a public print even a
;

fair report of judicial proceedings containing personal im-

putations invites the question whether he sent it honestly

for purposes of information, or from a motive of personal

hostility ;
if the latter is found to be the fact, he is liable

to an action (d).

Newspaper reports of public meetings and of meetings

of vestries, town councils, and other local authorities, and
of their committees, of royal or parliamentary commissions,
and of select committees, are privileged under the Law of
Libel Amendment Act, 1888 (c). A public meeting is for
"
this purpose any meeting bona fide and lawfully held for
a lawful purpose, and for the furtherance or discussion
of any matter of public concern, whether the admission
thereto be general or restricted." The defendant must not
have refused on request to insert in the same newspaper a
reasonable contradiction or explanation. Moreover "the
publication of any matter not of public concern, and the

(b) 51 & 52 Viet. c. 64, s. 3. The (d) Stevens v. Sampson (1879) 5

earlier cases are still material to Ex. Div. 53, 49 L. J. Q. B. 120.
show what is a fair and accurate (e) 51 & 52 Viet. c. 64, s. 4. The
report. ill-drawn enactment of 1881 for the
(c) Steele v. Brannan (1872) L. K. same purpose, 44 & 45 Viet. c. 61,
7 C. P. 261 (a criminal case) ;
51 & s. 2, is
repealed by sect. 2 of this
62 Viet. c. 64, s. 3. Act.
 EXCESS OF PRIVILEGE. 245

publication of which is not for the public benefit," is not

protected (/).

In the case of privileged communications of a confi- Excess of

I
dential kind, the failure to use ordinary means of ensuring

privacy as if the matter is sent on a post-card instead of

in a sealed letter, or telegraphed without evident necessity
will destroy the privilege either as evidence of malice,
;

or because it constitutes a publication to persons in respect

of whom there was not any privilege at all. The latter

view seems on principle the better one (g). It would also

seem that if a communication intended to be made on a
privileged occasion by the sender's negligence (as by
is

putting letters in wrong envelopes) delivered to a person

who is a stranger to that occasion, the sender has not any
benefit of privilege. The contrary has been decided by a
Divisional Court (A), but there is reason to think that the
decision is by no means universally accepted in the profes-
sion as good law.

Where the existence of a privileged occasion is estab- Honest

V. 1
"
-P
*

lished, we have seen that the plaintiff must give affirmative no t nec.es

proof of malice, that is, a dishonest personal ill-will, in

order to succeed. It is not for the defendant to prove belief

that his belief was founded on reasonable grounds. To

constitute malice there must be something more than the
absence of reasonable ground for belief in the matter com-
municated. That may be evidence of reckless disregard

(/) Ibid. In a civil action on (g} Williamson v. Freer (1874)

whom is the burden of proof as to L. R. 9 C. P. 393, 43 L. J. C. P.
this? See Blake Odgers, 381-3, 161.
on the repealed section of 1881, (h) Tompson v. Dashwood (1883)
where however this qualification 11 Q. B. D. 43, 52 L. J. Q. B.
was by way of condition and not 425,

by way of proviso.
246 DEFAMATION.

of truth, but is not always even such evidence. A man

may be honest and yet unreasonably credulous or it may ;

be proper for him to communicate reports or suspicions

which he himself does not believe. In either case he is
within the protection of the rule (i). It has been found
difficult to impress this distinction upon juries, and the
"
involved language of the authorities about " implied and
" "
express malice has, no doubt, added to the difficulty.
The result is that the power of the Court to withhold
a case from the jury on the ground of a total want of
evidence has on this point been carried very far (j) In .

theory, however, the relation of the Court to the jury is

the same as in other questions of " mixed fact and law."
Similar difficulties have been felt in the law of Negligence,
as we shall see under that head.

Power of In assessing damages the jury " are entitled to look at

jury in the whole conduct of the defendant from the time the
assessing
libel was published down to the time they gave their ver-
damages.
dict. They may consider what his conduct has been be-
fore action, after action, and in Court during the trial."
And the verdict will not be set aside on the ground of the
damages being excessive, unless the Court thinks the
amount such as no twelve men could reasonably have
given (k).

Special Lord Campbell's Act (6 & 7 Yict. c. 96, ss. 1, 2), contains
procedure
in actions special provisions as to proving the offer of an apology
for news- in mitigation of damages in actions for defamation, and
paper
libels.
payment into court together with apology in actions for
libel in a public print (/).

Limits of Where money has been paid into Court in an action for
interroga- the is not entitled to interrogate the de-
tories in libel, plaintiff
action for fendant as to the sources of his information or the means
libel. used to verify it (m).

({)
Clark v. Mohjncux (1877) 3 Q. (k) Pracd v. Graham (1889) 24 Q.
B. Div. 237, 47 L. J. Q. B. 230, B. Div. 53, 55.
per Bramwell L. J. at p. 244 per
; (I)
The Rules of Court of 1875
Brett L. J. at pp. 247-8; per had the effect of enlarging and so
Cotton L. J. at p. 249. far superseding the latter provi-
(j) Laughton v. Bishop of Sodor sion; but see now Order XXII.
and Man (1872) L. K. 4 P. C. 495, r. 1, and " The Annual Practice "
42 L. J. P. C. 11, and authorities thereon. See also 51 & 52 Viet.
there cited ;
Maule (1869)
Spill v. o. 64, s. 6.
Ex. Ch. L. R. 4 Ex. 232, 38 L. J. (*) Parnett v. Walter (1890) 24
Ex. 138. Q. B. D. 441.
 247

CHAPTEE VIII.

WRONGS OF FRAUD AND MALICE.

I. Deceit.

IN the foregoing chapters we dealt with wrongs affecting Nature

the so-called primary rights to security for a man's person,
wrong,
to the enjoyment of the society and obedience of his

family, and to his reputation and good name. In these

cases, exceptional conditions excepted, the knowledge or
state of mind of the person violating the right is not
material for determining his legal responsibility. This is
so even in the law of defamation, as we have just seen,
"
the artificial use of the word " malice notwithstanding.
We now come to a kind of wrongs in which either a
positivewrongful intention, or such ignorance or indiffe-
rence as amounts to guilty recklessness (in Roman terms
either dolus or culpa laid) is a necessary element ;
so that

liability is founded not in an absolute right of the plaintiff,

but in the unrighteousness of the defendant.

The wrong called Deceit consists in leading a man into Concur-

damage by 'wilfully or recklessly causing him to believe diction"?
and act on a falsehood. It is a cause of action by the common
law and
common law (the action being an action on the case equity,
founded on the ancient writ of deceit (a), which had a
much narrower scope) and it has likewise been dealt with
:

by courts of equity under the general jurisdiction of

() F. N. B. 95 E. sqq.
248 WRONGS OF FRAUD AND MALICE.

the Chancery in matters of fraud. The principles worked

out in the two jurisdictions are believed to be identical (&),

though there may be a theoretical difference as to the

character of the remedy, which in the Court of Chancery
did not purport to be damages but restitution (<?) Since .

1875, therefore, we have in this case a real and perfect

fusion of rules of common law and equity which formerly
were distinct, though parallel and similar.

Difficul- The subject has been one of considerable difficulty

J for
ties of the
subject : several reasons.

ticmwitli" First, the law of tort is here much

complicated with the
contract.
j aw o f contract. A false statement may be the induce-

ment to a contract, or may be part of a contract, and in

these capacities may give rise to a claim for the rescission of
the contract obtained means, or for compensation
by its

for breach of the contract or of a collateral

warranty. A
false statement unconnected with any contract may like-
wise create, by way of estoppel, an obligation analogous to
contract. And
a statement capable of being regarded in
one or more of these ways may at the same time afford a
"
cause of action in tort for deceit. If, when a man thinks
ithighly probable that a thing exists, he chooses to say he
knows the thing exists, that is really asserting what is
false : it is That has been repeatedly laid
positive fraud.
down. ... If you choose to say, and say without inquiry,
'
I warrant that/ that is a contract. If you say,
'
I know
it,' and if you say that in order to save the trouble of

inquiry, that is a false representation you are saying

what is induce them to act upon it " (d).
false to

The grounds and results of these forms of liability are

(b] See per Lord Chelmsford, (d) Lord Blackburn, Broivnlie v.

L. R. 6 H. L. at p. 390. Campbell (1880) 5 App. Ca. (Sc.) at
(c] See p. 175, above. p. 953.
 DECEIT. 249

largely similar, but cannot be assumed to be identical.

The authorities establishing what is a cause of action for ^
deceit are to a large extent convertible with those which
define the right to rescind a contract for fraud or mis-

representation, and the two classes of cases are commonly

cited without any express discrimination. Yet we have
no warrant before close examination for making sure that
they are convertible to the full extent.

Secondly, there are difficulties as to the amount of actual Questions

fraudulent intention that must be proved against a dulent
mtent
defendant. A man may be, to all practical intents,
-

deceived and led into loss by relying on words or con-

duct of another which did not proceed from any set

purpose to deceive, but perhaps from an unfounded expec-

tation that what he stated or suggested would be justified

by the event. In such a case

seems hard that the party
it

misled should not have a remedy, and yet there is some-

thing harsh in saying that the other is

guilty of fraud or
deceit. An over-sanguine and careless man may do as
much harm as a deliberately fraudulent one, but the moral

blame not equal. Again, the jurisdiction of courts of

is

equity in these matters has always been said to be founded

on fraud. Equity judges, therefore, were unable to frame
a terminology which should clearly distinguish fraud from

culpable misrepresentation n*t amounting t* fraud, but

having similar consequences in law and on the contrary
:

they were driven, in order to maintain and extend a

righteous and beneficial jurisdiction, to such vague and
" constructive "
confusing phrases as fraud," or conduct
fraudulent in the eyes of this Court." Thus they obtained
in a cumbrous fashion the results of the bolder Eoman
maxim culpa lata dolo aequiparatur. The results were
good, but, being so obtained, entailed the cost of much
v
 WRONGS OF FRAUD AND MALICE.

laxity in terms and some laxity of thought. Of late years

there has been a reaction against this habit, wholesome

in the main, but not free from some danger of excess.
" "
Legal fraud is an objectionable term, but it does not
follow that has no real meaning (e). One might as
it
" common counts " for
well say that the money had and
received, and the like, which before the Judicature Acts
were annexed to most declarations in contract, disclosed no
real cause of action, because the "contract implied in law"
which they supposed was not founded on any actual request
or promise.

Fraud of
Thirdly, special difficulties of the same kind have arisen
with regard to false statements made by an agent in the
course of his business and for his principal's purposes, but

without express authority to make such statements. Under

these conditions it has been thought harsh to hold the

principal answerable ; and there is a further aggravation

of difficulty in that class of cases (perhaps the most im-

portant) where the principal a corporation, for a corpo-

is

ration has been supposed not to be capable of a fraudulent

intention. "We have already touched on this point (/) ;

and the other difficulties appear to have been surmounted,

or to be in the way of being surmounted, by our modern
authorities.

General to be met with.

conditions
Having- indicated the kind of problems
A
of the we proceed to the substance of the law.
action. To create a right of action for deceit there must be a
statement made by the defendant, or for which he is

(e)
See per Lord Branrwell, Weir nated in Udell \.Atlierton (1861)
v. Bell, 3 Ex. D. at p. 243 Dernj
; 7 H. & N. 172 30 L. J. Ex. 337,
;

v. Peck, 14 App. Ca. at p. 346. where the Court was equally

(/) P. 53, above. The difficul- divided.
tiesmay be said to have culmi-
 DECEIT. 251

answerable as principal, and with regard to that statement

all the following conditions must concur :

(a) It is untrue in fact.

(b) The person making the statement, or the person

responsible for it, either knows it to be untrue,

or culpably ignorant (that is, recklessly and con-

is

sciously ignorant) (g) whether it be true or not.

(c) It is made to the intent that the plaintiff shall act

upon it, or in a manner apparently fitted to

induce him to act upon it (h) .

(d) The plaintiff does act in reliance on the statement

in the manner contemplated or manifestly prob-
able, and thereby suffers damage (i) .

There is no cause of action without both fraud (j ) and

actual damage, or the damage is the gist of the action (k) .

And according to the general principles of civil liability,

the damage must be the natural and probable consequence
of the plaintiff's action on the faith of the defendant's
statement.

(e) The statement must be and signed ini

in writing
one class of cases, namely where it amounts to ai

guaranty but this requirement is statutory, and

:

as did not apply to the Court of Chancery,

it

does not seem to apply to the High Court of

Justice in its equitable jurisdiction.
Of these heads in order.

(ff)
Lord Herschell, Berry v. Peek L. J., Edgington v. Fitzmaurice
(1889) 14 App. Ca. at p. 371. (1885) 29 Ch. Div. at pp. 481-2;
(h} See Polhillv. Walter, 3 B. & and Lindley L. J., Smith v. Ghad-
Ad. 114, 123. wick (1882) 20 Ch. Div. at p. 75.
(i) Cp. for the general rules (j) Derry v. Peek (1889) 14 App.
Lord Hatherley (Page Wood, Ca. 337, 374, 58 L. J. Ch. 864.

V.-C.), Barry v. Groskey (1861) 2 (k) Lord Blackburn, Smith v.

J. & H. at pp. 22-3, approved by Chadwick (1884) 9 App. Ca. at p.
Lord Cairns in Peek v. Gurney, 196.
L. R. 6 H. L. at p. 413 ;
Bowen
252 WRONGS or FRAUD AND MALICE.

Falsehood A statement can be untrue in fact only if it purports

(a)
to state matter of fact. A promise is distinct from a state-
ment of fact, and breach of contract, whether from want of

power or of will to perform one's promise, is a different

thing from deceit. Again a mere statement of opinion or
inference, the facts on which it purports to be founded

being notorious or equally known to both parties, is

different from a statement importing that certain matters

of fact are within the particular knowledge of the speaker.

A man cannot hold me to account because he has lost
money by following me in an opinion which turned out to
be erroneous. In particular cases, however, it may be hard
to draw the line between a mere expression of opinion and
an assertion of specific fact (k). And a man's intention
or purpose at a given time is in itself a matter of fact, and
capable (though the proof be seldom easy) of being found
" The
as a fact. state of a man's mind is as much a fact
"
as the state of his digestion (/). It is settled that the
vendor of goods can rescind the contract on the ground of
fraud if he discovers within due time that the buyer
intended not to pay the price (m).
When a prospectus is. issued to shareholders in a com-
pany or the like to invite subscriptions to a loan, a state-
ment of the purposes for which the money is wanted in
other words, of the borrower's intention as to its applica-

(&) Compare Pasleyv. Freeman L. J., Ex parte Whittaker (1875)

(1789) 3 T. E.
51, with Haycraft 10 Ch. at p. 449. Whether in such
v. Creasy (1801) 2 East 92, where case an action of deceit would lie is
Lord Kenyon's dissenting judg- a merely speculative question, as if

ment may be more acceptable to rescission is impracticable, and if

the latter-day reader than those of the fraudulent buyer is worth
the majority. suing, the obviously better course
(T)
BowenL. J.,29 Ch. Div. 483. is to sue on the contract for the

(m) Clough v. L. and N. W. E. price. See however Williamson v.

Co. (1871) Ex. Ch. L. R. 7 Ex. 26, Allison (1802) 2 East 446.
41 L. J. Ex. 17 cp. per Mellish
;
 WHAT IS DECEIT. 253

tion is a material statement of fact, and if untrue may be

ground for an action of deceit (n). The same principle
would seem to apply to a man's statement of the reasons
for his conduct, if intended or calculated to influence the

conduct of those with whom he is

dealing (o) as if an ;

agent employed to huy falsely names, not merely as the

highest price he is willing to give, hut as the actual limit
of his authority, a sum lower than that which he is really

empowered to deal for.

A representation concerning a man's private rights. Misrepre-

sentations
.

though it may involve matters of law, is as a whole of law.

deemed to he a statement of fact. Where officers of a

company incorporated by a private Act of Parliament
accept a bill in the name of the company, this is a repre-
sentation that they have power so to do under the Act of

Parliament, and the existence or non-existence of such

power is a matter of fact. "Suppose I were to say I have a
private Act of Parliament which gives me power to do so
and so. Is not that an assertion that I have such an Act
of Parliament ? It appears to me to be as much a repre-
sentation of a matter of fact as if I had said I have a

particular bound copy of Johnson's Dictionary" (p). A

statement about the existence or actual text of a public Act
of Parliament, or a reported decision, would seem to be no
less a statement of fact.With regard to statements of
matters of general law made only by implication, or state-
ments of pure propositions of the law, the rule may perhaps

(n) Edgingtonv.Fitzmaurice (1884) v. Kitson (1884) 13Q. B. Div. 360,

29 Ch. Div. 459, 55 L. J. Ch. 650. per Bowen L. J.
at p. 363, 63 L. J.
(o) It is submitted that the con- Q. B. 345. Cp. Firlank's Executors
trary opinion given in Vernon v. v. Humphreys (1886) 18 Q. B. Div.

Keys (1810) Ex. Ch. 4 Taunt. 488, 54, 56 L. J. Q. B. 57 (directors'

can no longer be considered law. assertion of subsisting authority to

(p) West London Commercial Bank issue debentures).

254 WRONGS OF FRAUD AND MALICE.

be this, that in dealings between parties who have equal

means of ascertaining the law, the one will not be pre-
sumed to rely upon a statement law made by
of matter of
the other (q) . It has never been decided whether proof of
such reliance is admissible ;
it is submitted that if the case
arose itcould be received, though with caution. Of course
a man will not in any event be liable to an action of deceit
for misleading another by a statement of law, however
erroneous, which at the time he really believed to be correct.
That case would the general category of honest
fall into

though mistaken expressions of opinion. If there be any

ground of liability, it is not fraud but negligence, and it
must be shown that the duty of giving competent advice
had been assumed or accepted.

Falsehood It remains to be noted that a statement of which every

state- part is literally be false as a whole, if by reason
true may
1 s'
of the omission of material facts it is as a whole calculated
to mislead a person ignorant of those facts" into an infer-

ence contrary to the truth (r)

"
suppression of the truth
. A
"
may amount to a suggestion of falsehood (s).
Know- (t) As to the knowledge and belief of the person making
ledge or
belief of the statement.
He may believe it to be true (t).
In that case he incurs
no liability, nor is he bound to show that his belief was
founded on such grounds as would produce the same belief

This appears to be the real

(q)
which is stated absolutely false " :

ground of Rashdatt v. Ford (1866) Lord Cairns, L. R. 6 H. L. 403.

2 Eq. 750, 35 L. J. Ch. 769. (s} Stewart v. Wyoming Ranche
(r)
"There must, in opinion, my Go. (1888) 128 U. S. 383, 388.

be some active misstatement of (t)

Collins v. .Evans (1844) Ex.
fact, or at all events such a partial Ch. 5 Q. B. 820, 13 L. J. Q. B.
and fragmentary statement of fact 180. Good and probable reason
as that the withholding of that as well as good faith was pleaded
which is not stated makes that and proved.
 "WHAT IS DECEIT. 255

in a prudent and competent man except so far as the

(u),
absence of reasonable cause may tend to the inference that
there was not any real belief. An honest though dull
man cannot be held guilty of fraud any more than of
"
express malice," although there is a point beyond which
courts will not believe in honest stupidity. "If an untrue
" founded
statement is made," said Lord Chelmsford,
upon a belief which is destitute of all reasonable grounds,
or which the least inquiry would immediately correct, I
do not see that it is not fairly and correctly characterized
as misrepresentation and deceit" (x) ;
Lord Gran worth
pref erred to say that such circumstances might be strong
evidence, but only evidence, that the statement was not
really believed to be true, and any liability of the parties
" would
be the consequence not of their having stated as
true what they had not reasonable ground to believe to be

true, but of their having stated as true what they did not
believe to be trae"(y). Lord Cranworth's opinion has
been declared by the House of Lords (s), reversing the
judgment of the Court of Appeal (), to be the correct
" The ground upon which an
one. alleged belief was
" "
founded is allowed to be a most important test of its
"
reality (b) ;
but if it can be found as a fact that a belief
was really and honestly held, whether on reasonable

grounds or not, a statement embodying that belief cannot

render its maker liable in an action for deceit (c).

() Taylor v. Ashton (1843) 11 (y) Ib. at p. 168.

M. & W. 401, 12 L. J. Ex. 363, (z) Derry v. Peek (1889) 14 App.
but the actual decision is not con- Ca. 337, 58 L..J. Ch. 864.
sistent with the doctrine of the (a) Peek v. Derry (1887) 37 Ch.
modern cases on the duty of Div. 541, 57 L. J. Ch. 347.
directors of companies. See per (b) Lord Herschell, 14 App. Ca.
Lord Herschell, 14 App. Ca. at at p. 375.

p. 375. (c)
Ace. Glasier v. Soils (1889) 42

(x) Western ank of Scotland v. Ch. Div. 436, 58 L. J. Ch. 820.

Addle (1867) L. K. 1 Sc. at p. 162.
256 "WRONGS OF FRAUD AND MALICE.

The rule is subject to a qualification, to be presently

mentioned, in the case of matters which have actually
been within a man's knowledge in the course of business
or duty connected with the transaction in hand.
I have given reasons elsewhere (d) for thinking the late

decision of the House of Lords an unfortunate one. It

would be out of place to repeat those reasons here. But it

may be pointed out that the reversed opinion of the Court

of Appeal coincides with that which has for many years

prevailed in the leading American Courts (e), and has lately

been thus expressed in Massachusetts :

" It is well settled in this Commonwealth

that the charge
of fraudulent intent, in an action for deceit, may be main-
tained by proof of a statement made, as of the party's own
knowledge, which is false, provided the thing stated is not
merely a matter of opinion, estimate, or judgment, but is
susceptible of actual knowledge ;
and in such case it is not

necessary to make any further proof of an actual intent to

deceive. The fraud consists in stating that the party
knows the thing to exist, when he does not know it to
exist and if he does not know it to exist, he must ordi-
;

"
narily be deemed to know that he does not (/).
Perhaps would have been better on principle to hold
it

the duty in these cases to be quasi ex contracts, and evade

the barren controversy about " legal fraud." One who
makes a statement as of fact to another, intending him to
act thereon, might well be held to request him to act upon
it; and it have been held to be an implied
might also

term or warranty in every such request that the party

making it has some reasonable ground for believing what
(d) L. Q. R. v. 410 ;
for a dif- Stone v. Denny, 4 Met. (Mass.) 151,
ferent view, see Sir William Anson ,
168.
ib. vi. 72. (/) Chatham furnace Co. v.

(e) Cooley on Torts 501. The Moffatt (1888) 147 Mass. 403.
tendency appears as early as 1842,
 WHAT IS DECEIT. 257

lie not necessarily sufficient ground, but such as

affirms ;

might then and there have seemed sufficient to a man of

ordinary understanding. This would not have been more
than holding, as the Exchequer Chamber was
artificial

once prepared to hold, that the highest lona fide bidder at

an auction, advertised to be without reserve, can sue the
auctioneer as on a contract that the sale is really without

reserve, or that he has authority to

without reserve (/) sell .

And such a development would have been quite parallel

to others which have taken place in the modern history of
the law. No now
regards an express warranty on a
one
sale otherwise than as a matter of contract yet until the ;

latter part of the eighteenth century the common practice

was to declare on such warranties in tort (g). But it seems

now too late, at all events in this country, to follow such
a line of speculation.
It has been suggested that it would be highly incon-
"
venient to admit inquiry into the reasonableness of a
"
belief admitted to be honestly entertained (h). I cannot
see that the inquiry is more difficult or inconvenient than
that which constantly takes place in questions of negligence,
or that it is so difficult as those which are necessary in
cases of malicious prosecution and abuse of privileged
communications .

If, having honestly made a representation, a man dis- Represen-

covers that not true before the other party has acted ^^e-
it is

upon it. what is his position ? It seems on principle that, <i uentl y '
discovered
as the offer of a contract is deemed to continue till revoca- to be
untrue.

(/) Warlow v. Harrison (1859) 1 ginally an action on the case for

E. & E. 309, 29 L. J. Q. B. 14. deceit in breaking a promise to the

(ff)
Williamson v. Allison (1802) promisee's damage: J. B. Ames in
2 East 446, 451. We need not Harvard Law Rev. ii. 1, 53.
remind the learned reader that the (h) Sir "W. Anson, L. Q. R. vi.
action of assumpsit itself was ori- 74.

P. S
258 WRONGS OF FRAUD AND MALICE.

or acceptance, here the representation must be taken to

be continuously made until it is acted upon, so that from

the moment
the party making it discovers that it is false

and, having the means of communicating^ the truth to the

other party, omits to do so, he is in point of law making a
with knowledge of its untruth. And
false representation

such has been declared to be the rule of the Court of

" The
Chancery for the purpose of setting aside a deed.
case is not at all varied by the circumstance that the untrue

representation, or any of the untrue representations, may

in the first instance have been the result of innocent error.

If, after the error has been discovered, the party who has
innocently made the incorrect representation suffers the
other party to continue in error and act on the belief that
no mistake has been made; this from the time of the
discovery becomes, in the contemplation of this Court, a
fraudulent misrepresentation, even though it was not so

originally" (/). "We do not know

any authority against of
this being the true doctrine of common law as well as of
equity, or as applicable to an action for deceit as to the
setting aside of a contract or conveyance. Analogy seems
in its favour (k). Since the Judicature Acts, however, it

is sufficient for English purposes to accept the doctrine

from equity. The same rule holds if the representation
was true when first made, but ceases to be true by reason
of some event within the knowledge of the party making
it and not within the knowledge of the party to whom it

is made (I).

(i] Eeynell v. Sprye (1852) 1 D. graver consequences in the cri-

M. Gr. 660, 709, Lord Cranworth : minal law. Jessel M. R. assumed
cp. Jessel M. R., Redgrave v. Hurd the common law rule to be in
(1881) 20 Ch. Div. 12, 13, 51 L. J. some way narrower than that of
Ch. 113. equity (20 Ch. Div. 13), but this
(k} Compare the doctrine of con- was an extra-judicial dictum.
tinuous taking- in trespass de bonis (1) Traill v. Baring (1864) 4 D.

asportatis, which is carried out to J. S. 318 ;

the difficulty of making
 RECKLESS ASSERTION.

On the other hand if a man states as fact what he does Assertions

not helieve to be he speaks at his peril and this

fact, ; reckless
1 norance
whether he knows the contrary to be true or has no know- ff -

ledge of the matter at all, for the pretence of having

certain information which he has not is itself a deceit.
" He takes
upon himself to warrant his own belief of the
" " If
truth of that which he so asserts (m). persons take
upon themselves to make assertions as to which they are
ignorant, whether they are true or untrue, they must, in a
civilpoint of view, be held as responsible as if they had
asserted that which they knew to be untrue" (n). These
dicta, one of an eminent common law judge, the other of
an eminent chancellor, are now both classical
their direct ;

application was to the repudiation of contracts obtained by

fraud or misrepresentation, but they state a principle which
is well understood to include liability in an action for de-

ceit (o). The ignorance referred to is conscious ignorance,

the state of mind of a man who asserts his belief in a fact
" when he is conscious that he knows not whether it

be true or false, and when he has therefore no such

"
belief

With regard to transactions in which a more or less Breach of

"1
stringent duty of giving full and correct information (not duty to
.

out how there was any representa- 581. Even Lord Bramwell allows
tion of fact in that case as distin- Lord Cairns' s dictum (14 App. Ca.
guished from a promise or con- at p. 351).
is not material
dition of a contract (o) Taylor v. Ashton (1843) 11
to the present purpose. M. & W. 401, 12 L. J. Ex. 363;
(m) Maule J., Evans v. Edmonds Edgington v. Fitzmaurice (1885) 29
(1853) 13 C. B. 777, 786, 22 L. J. Ch. Div. 459, 479, 481, 55 L. J.
C. P. 211. Ch. 650; cp. Smith v. Chadwiek
(n) Lord Cairns, Reese River (1884) 9 App. Ca. at p. 190, per
SilverMining Co. v. Smith (1869) Lord Selborne.
L. R. 4 H. L. 64, 79, 39 L. J. Ch. (p) Lord Herschell, Derry v.
849. See per Sir J. Hannen in Peek, 14 App. Ca. at p. 371.
Peek v. Derry, 37 Ch. Div. at p.

s2
260 WRONGS OF FRAUD AND MALICE.

give merely of abstaining from falsehood or concealment equi-

formation. valent to falsehood) is imposed on one of the parties, it

may be doubted whether an obligation of this kind annexed

by law to particular classes of contracts can ever be treated
as independent of contract. If a misrepresentation by a
vendor of real property, for example, is wilfully or reck-
lessly false, it comes within the general description of de-
ceit. But there are errors of mere inadvertence which

constantly suffice to avoid contracts of these kinds, and in

such cases I do not think an action for deceit (or the
analogous suit in equity) is known to have been main-
tained. Since Derry v. Peek it seems clear that it could
not be. As regards these kinds of contracts, therefore
but, it is submitted, these only the right of action for
misrepresentation as a wrong is not co-extensive with the
right of rescission. In some cases compensation may be
recovered as an exclusive or alternative remedy, but on
different grounds, and subject to the special character and
terms of the contract.

False The qualification of the rule that the defendant must be

10n
aTto s h wn n t to have believed the truth of his assertion (if it

rea^y be a qualification) that a person cannot excuse

is

party's himself for misrepresenting material facts which have been

know- specially within his own knowledge, and of which he is
e ffe *
the proper person to give information, by alleging that at
the moment he forgot the true state of things. It is a
trustee's business to know whether or not he has had notice

of a prior incumbrance (q), a lessor's business to know

whether or not he has already granted a lease (r). Inad-
vertence on the part of such persons, which leads innocent
third parties to accept worthless securities on the faith of
their statements, is not the ordinary negligence into which
(g) Burrowes v. Lock (1805) 10 (r) Slim v. Croucher (I860) 1 D.
Ves. 470. F. J. 518.
 DECEIT: SPECIAL RULES. 261

a well-meaning man may fall by occasional lack of skill or

attention. and on the verge of fraud, hardly
It is gross
distinguishable from deliberate fraud in its character, and
not at distinguishable in its results. Since the decision
all

of the House of Lords in Derry v. Peek, however, it may

be hard to say whether the rule is not in England a rule
or presumption of evidence rather than of law (IT). For
practical purposes one hope that it matters little a
may ;

man may allege that he forgot that which was within his
particular knowledge and business, and so made a false
report of it to another's damage with the sincere belief
that he was speaking truly, but he will hardly persuade
the Court to accept such an allegation.
The
unqualified liability of a professed agent for want
of authority may possibly be regarded as a branch of this
rule (s).

The same principle seems to account for the possible,

though not very probable, case of a statement being made,

by a clerical blunder or the

convey a meaning like, to

wholly different from that which was intended ().. A

railway company does not intend to advertise trains which
have been taken off, but it may happen that by negligence
the tables are not corrected (u).
qualifying Material

words, or even a downright negative, may be omitted by a

printer's error, without obvious correction from the context.

In such cases it would seem that gross negligence is equiva-
lent to wrongful intention, but failure to use all possible
caution unless in circumstances imposing a special duty
is not.

(c) It is not a necessary condition of liability that the

S&
Intention

See per Lord Blackburn, 9

m
Cp. the Appendix to Clerk
(rr) (t)

and Lindsell's " Law of Torts." App. Ca. 201.

'

FirlanUs Executors v.
(s)
Hum- (u) See Denton v. G. N. R, Co.,
phrey* (1886) 18 Q. B. Div. 54, 56 p. 263, below.
L. J. Q. B. 57.
xfO3 WRONGS OF FKAUD AND MALICE.

of the misrepresentation complained of should have been made

directly to the plaintiff, or that the defendant should have
intended or desired any harm to come to him. It is

enough that the representation was intended for him to

act upon, and that he has acted in the manner contem-
plated, and suffered damage which was a natural and
probahle consequence. If the seller of a gun asserts that
it is the work of a well-known maker and safe to use, that,

as between him and the buyer, is a warranty, and the

buyer has a complete remedy in contract if the assertion
is found untrue and this will generally be his better
;

remedy, as he need not then allege or prove anything

about the defendant's knowledge but he may none the
;

less treat the warranty, if it be fraudulent, as a substan-

tive ground of action in tort. If the buyer wants the gun
not for his own use, but for the use of a son to whom he
means to give it, and the seller knows this, the seller's
assertion is a representation on which he intends or expects
the buyer's son to act. And if the seller has wilfully or

recklessly asserted that which is false, and the gun, being

in fact of inferior and unsafe manufacture, bursts in the
hands of the purchaser's son and wounds him, the seller is
liable to that son, not on his warranty (for there is no
contract between them, and no consideration for any), but
for a deceit (#) . Hemeant no other wrong than obtaining
a better price than the gun was worth probably he hoped
;

it would be good enough not to burst,

though not so good
as he said it was but he has put another in danger of life
;

and limb by his falsehood, and he must abide the risk.

We have to follow the authorities yet farther.

Represen- A statement circulated or published in order to be acted

tations to

(x) Langridge v. Levy (1837) 2 M. & "W. 519 : affirmed (very briefly) in
Ex. Ch. 4 M. & W. 333.
 DECEIT BY PUBLIC REPRESENTATIONS. 263

on by a certain class of persons, or at the pleasure of any a class of

one to whose hands it may * come, is
deemed to be made to ?Tlolnul v.
that person who acts upon it, though he may be wholly
unknown to the issuer of the statement. A bill is pre-

sented for acceptance at a merchant's office. He is not

there, but a friend, not his partner or agent, who does his
own business at the same place, is on the spot, and,
assuming without inquiry that the bill is drawn and pre-
sented in the regular course of business, takes upon him-
self to accept the bill as agent for the drawee. Thereby
he represents to every one who may become a holder of
the bill in due course that he has authority to accept and ;

if he has in fact no authority, and his acceptance is not

ratified by the nominal principal, he is liable to an action

for deceit,though he may have thought his conduct was
for the benefit of all parties, and expected that the accept-
ance would be ratified (?/)
.

Denton v.
Again the current time-table of a railway company is a
representation to persons meaning to travel by the com- Co.

pany's trains that the company will use reasonable dili-

gence to despatch trains at or about the stated times for
the stated places. If a train which has been taken off is

announced as still running, this is a false representation,

and (belief in its truth on the part of the company's ser-
vants being out of the question) a person who by relying
on it has missed an appointment and incurred loss may
have an action for deceit against the company (z). Here
(y] Polhill v. Walter (1 832) 3 there was also a cause of action in
B. & Ad. 114. The more recent contract. The difficulty often felt
doctrine of implied warranty was about maintaining an action for
then unknown. deceit against a corporation does

(z)
So held unanimously in Den- not seem to have occurred to any
ton v. G. N. R. Co. (1856) 5 E. & member of the Court. It is of
B. 860, 25 L. J. Q. B. 129. Lord course open to argument that this
Campbell C. J., and "Wightman case is overruled by Derry v. Peek,
J., held (dttbit. Crompton J.) that 14 App. Ca. 337, 58 L. J. Ch. 864,
264 WKONGS OF FRAUD AND MALICE.

there is no fraudulent intention. The default is really a

negligent omission ;
a page of the tables should have been
an erratum-slip added. And the negligence
cancelled, or
could hardly be called gross, but for the manifest import-
ance to the public of accuracy in these announcements.

Peek v.
Again the prospectus of a new company, so far forth as
Gurnet/.
it alleges matters of fact concerning the position and pro-
spects of the undertaking, a representation addressed to
is

all persons who may apply for shares in the company but ;

it is not deemed to be addressed to persons who after the

establishment of the company become purchasers of shares

at one or more removes from the original holders (a) ,
for
the office of the prospectus is exhausted when once the
shares are allotted. regards those to whom it is ad-
As
dressed, it matters not whether the promoters wilfully use

misleading language or not, or do or do not expect that

the undertaking will ultimately be successful. The ma-
"
terial question is, Was there or was there not misrepre-
sentation in point of fact?" (b). Innocent or benevolent
motives do not justify an unlawful intention in law,

though they are too often allowed to do so in popular

morality.

Reliance
(d) As to the plaintiff's action on the faith of the
on the
represen- defendant's representation.
tation.
A. by words or acts represents to B. that a certain state
of things exists, in order to induce B. to act in a certain

way. The where B., relying wholly on

simplest case is

A.'s statement, and having no other source of information,

(a) Peek v. Gurney (1873) L. R. burn, Smith v. Chadwick, 9 App. Ca.

6 H. L. 377, 400, 411, 43 L. J. at p. 201 Lord Herschell, Derry
;

Ch. 19. v. Peel-, 14 App. Ca. at pp. 365,

(b}
Lord Cairns, L. R. G H. L. 371.
at p. 409. Cp. per Lord Black-
 DECEIT : RELIANCE ON REPRESENTATION. 205

acts in the manner contemplated. This needs no further

comment. The case of B. disbelieving and rejecting A.'s
assertion is equally simple.
Another case is that A.'s representation is never com-
municated to B. Here, though A. may have intended to
deceive B., it is plain that he has not deceived him and ;

an unsuccessful attempt however unrighteous it

to deceive,

may be, does not cause damage, and is not an actionable

wrong. A fraudulent seller of defective goods who

patches up a flaw for the purpose of deceiving an inspec-
tion cannot be said to have thereby deceived a buyer who
omits to make any inspection at all. We should say this
was an obvious proposition, if it had not been judicially
doubted The buyer may be protected by a condition
(c) .

or warranty, express or implied by law from the nature of

the particular transaction but he cannot complain of a
;

merely potential fraud directed against precautions which

he did not use. A false witness who is in readiness but
is not called is a bad man, m but he does not commit

perjury.

Yet another case is that the plaintiff has at hand the Means of

means of testing the defendant's statement, indicated by

na W1th
the defendant himself, or otherwise within the plaintiff's j t
~i

power, and either does not use them or uses them in a inde-

partial
Here it seems plausible at
and imperfect manner. inquiry.
first sight to contend that a man who does not use obvious

means of verifying the representations made to him does

not deserve to be compensated for any loss he may incur

by relying on them without inquiry. But the ground of

(c} Horsfall v. Thomas (1862) 1 dissented from by Cockburn C. J.,

H. & C. 90, 31 L. J. Ex. 322, a L. R. 6 Q. B. at p. 605. The case
case of contract, so that a fortiori was a peculiar one, but could not
an action for deceit would not lie : have been otherwise decided.
266 WRONGS OF FRAUD AND MALICE.

this kind of redress is not the merit of the plaintiff, but the
demerit of the defendant : and it is now settled law that
one who chooses to make positive assertions without warrant
shall not excuse himself by saying that the other party
need not have relied upon them. He must show that his
representation was not in fact relied upon. In the same
spirit it is now understood (as we shall see in due place)
that the defence of contributory negligence does not mean
that the plaintiff is to be punished for his want of caution,
but that an act or default of his own, and not the negli-

gence of the defendant, was the proximate cause of his

damage. If the seller of a business fraudulently over-
states the amount of the business and returns, and thereby
obtains an excessive price, he is liable to an action for
deceit at the suit of the buyer, although the books were
accessible to the buyer before the sale was concluded (d).

Perfunc- Andthe same principle applies as long as the party

quny^vm substantially puts his trust in the representation made to

not do. he does use some observation of his own.
him, even if

A cursory view of a house asserted by the vendor to be

in good repair does not preclude the purchaser from com-
plaining of substantial defects in repair which he afterwards
"
discovers. The purchaser is induced to make a less
accurate examination by the representation, which he had
a right to believe "(e). The buyer of a business is not
deprived of redress for misrepresentation of the amount of
profits, because he has seen or held in his hand a bundle
of papers alleged to contain the entries showing those

profits (/). An original shareholder in a company who

(d} Dobell v. Stevens (1825) 3 B. sation).

& C. 623. (/) Redgrave v. Hurd (1881) 20
(e) Dyer v. Hargrave (1805) 10 Ch. Div. 1, 51 L. J. Ch. 113 (action
Ves. at p. 510 (cross suits for for specific performance, counter-

specific performance and compen- claim for rescission and damages).

 DECEIT : KNOWLEDGE OR INQUIRY. 267

was induced to apply for his shares by exaggerated and

untrue statements in the prospectus is not less entitled to
relief because facts negativing those statements are dis-

closedby documents referred to in the prospectus, which he

might have seen by applying at the company's office (y).
In short, nothing will excuse a culpable misrepresenta- ^
tion short of proof that it was not relied on, either because

the other party knew the truth, or because he relied wholly

on his own investigation, or because the alleged fact did
not influence his action at all. And the burden of this

proof is on the person who has been proved guilty of

material misrepresentation (//) He may prove any of these
.

things if he can. It is not an absolute proposition of law

that one who, having a certain allegation before him, acts
as belief in that allegation would naturally induce a man
to act, is deemed to have acted on the faith of that allega-
tion. It is an inference of fact, and may be excluded by
contrary proof. But the inference is often irresistible (i).

Difficulties may arise on the construction of the state- Ambigu-

ment alleged to be deceitful. Of course a man is respon-

sible for the obvious meaning of his assertions ;
but where
the meaning is obscure, it is for the party complaining to
show that he relied upon the words in a sense in which
they were false and misleading, and of which they were
fairly capable (k) As most persons take the first construc-
.

tion of obscure words which happens to strike them for the

(ff)
Central J$. Co. of Venezuela v. (h) See especially per Jessel
Kisch (1867) L. K. 2 H. L. 99, 120, M. R, 20 Ch. Div. 21.
36 L. J. Ch. 849, per Lord Chelms- (i) See per Lord Blackburn,
ford. A case of this kind alone * Smith v. Chadwick, 9 App. Ca. at
would not prove the rule as a p. 196.
general one, promoters of a com- (k) Smith v. Chadwiek (1884)
pany being under a special duty of 9 App. Ca. 187, 53 L. J. Ch.
full disclosure. 873, especially Lord Blackburn's
opinion.
268 WRONGS OF FRAUD AND MALICE.

obviously right and only reasonable construction, there

must always be room for perplexity in questions of this
kind. Even judicial minds will differ widely upon such
points, after full discussion and consideration of the
various constructions proposed (I).

(
e) ^ ^ as a rea(ty been observed in general
l that a false
Act.
representation may at the same time be a promise or term
of a contract. In particular it may be such as to amount
to, or to a guaranty. Now by the
be in the nature of,

Statute of Frauds a guaranty cannot be sued on as a

promise unless it is in writing and signed by the party to

be charged or his agent. If an oral guaranty could be
sued on in tort by treating it as a fraudulent affirmation
instead of a promise, the statute
might be largely evaded.
Such actions, in fact, were a novelty a century and a
quarter after the statute had been passed (m), much less
were they foreseen at the time. It was pointed out, after
the modern action for deceit was established, that the

jurisdiction thus created was of dangerous latitude (n) ;

and, at a time when the parties could not be witnesses in a

court of common law, the objection had much force. By
Lord Tenterden's Act, as it is commonly called (0), the
following provision was made :

"
No action shall be brought whereby to charge any
<> person upon by reason of any representation or assur-
or
ance made or given concerning or relating to the character,

conduct, credit, ability, trade, or dealings of any other

In the case last cited (1881-2)
(I)
Lord Blackburn, and Lord Watson
(Fry and C. A. 20 Ch. Div. 27),
J., thought it ambiguous.
Fry J. and Lord Bramwell de- (m) See the dissenting judgment
cidedly adopted one construction of Grose J. in Pasley v. Freeman
of a particular statement Lindley ; (1789) 3 T. R. 51, and 2 Sm. L. C.
L. J., the same, though less de- (n} By Lord Eldon in Evans v.

cidedly, and Cotton L. J., another, Bicknell (1801) 6 Ves. 174, 182, 186.
while Jessel M. R., Lord Selborne, () 9 GTeo. IV. c. 14, s. 6.
 FALSE GUARANTIES. 2GO

person, to the intent or purpose that such other person may

obtain credit, money, or goods upon(>), unless such repre-
sentation or assurance be made in writing, signed by the
party to be charged therewith."
This is something more stringent than the Statute of
Frauds, for nothing is said, as in that statute, about the
signature of a person "thereunto lawfully authorized," and
it has been decided that signature by an agent will not

do(<?). Some doubt whether the word "ability"

exists

does or does not extend the enactment to cases where the

representation not in the nature of a guaranty at all,

is

but an affirmation about some specific circumstance in a

person's affairs. The better opinion seems to be that only
statements really going to an assurance of personal credit
are within the statute (r). Such a statement is not the
less within it, however, becauseincludes the allegation
it

of a specific collateral circumstance as a reason (s) .

A. more serious doubt is whether the enactment be now Quaere as

i~o i"nf i Ifl/wr

word " action " of under

'

practically operative in England. The the

course did not include a suit in equity at the date of the
t^e Acts
Act, and the High Court has succeeded to all (and in some
points more than the equitable jurisdiction and powers
all)
of the Court of Chancery. But that Court would not in a
case of fraud, however undoubted its jurisdiction, act on
the plaintiff's oath against the defendant's, without the
corroboration of documents or other material facts and it ;

(p) Sic, it is believed that the (q] Swift v. Jewsbury (1874) Ex.
word "credit" was accidentally Ch. L. R. 9 Q. B. 301, 43 L. J.
transposed, so that the true read- Q. B. 56.
" obtain
ing would be money or (r) Parke and Alderson BB. in

goods upon credit:" see Lyde v. Lyde v. Barnard (1836) note (p) :

Barnard (1836) 1 M. &W. 101, per contra Lord Abinger C. B. and

Parke B. Other conjectural emen- Gurney B.
dations are suggested in his judg- (*)
Swann v. Phillips (1838) 8 A.
inent and that of Lord Abinger. & E. 457.
270 WRONGS 6v FRAUD AND MALTCE.

would seem that in every case of this kind where the Court
of Chancery had concurrent jurisdiction with the courts of

common law (and it is difficult to assign any where it had

not). Lord Tenterden's Act is now superseded by this rule
of evidence or judicial prudence.

Misrepre- There still remain the questions which arise in the case
sentations
made by of a false representation made by an agent on account of
his principal. Bearing in mind that reckless ignorance is

equivalent to guilty knowledge, we may state the alterna-

tives to be considered as follows :

The knows the representation to be

principal false and
authorizes the making of it. Here the principal is clearly
liable the agent is or is not liable according as he does
;

not or does himself believe the representation to be true.

The principal knows the contrary of the representation
to be true, and it is made by the agent in the general
course of his employment but without specific authority.

Here, the agent does not believe his representation to

if

be true, he commits a fraud in the course of his employ-

ment and for the principal's purposes, and, according to

the general rule of liability for the acts and defaults of an

agent, the principal is liable (t).

If the agent does believe the representation to be true,
there is a difficulty ;
for the agent has not done any wrong
and the principal has not authorized any. Yet the other
party's damage is the same. That he may rescind the
he has been misled into a contract, may now
contract, if
be taken as settled law (u). But what if there was not

(t) Parke B., 6 M. & "W. 373. otherwise than reckless: what was
(u) See Principles of Contract, actually decided was that it was
552. In Cornfoot v. Fowke, 6 M. misdirection to tell the jury with-
& "W. 358, it is difficult to sup- out qualification "that the repre-
pose that as a matter of fact the sentation made by the agent must
agent's assertion can have been have the same effect as if made
 FRAUD BY OR THROUGH AGENT. 271

any contract, or rescission has become impossible ? Has

liea distinct ground of action, and if so, how ? Shall we
say that the agent had apparent authority to pledge the
belief of his principal, and therefore the principal is liable?
in other words, that the principal holds out the agent as

having not only authority but sufficient information to

enable third persons to deal with the agent as they would
with the principal ? Or shall we say, less artificially, that
it isgross negligence to withhold from the agent informa-
tion so material that for want of it he is likely to mislead
third persons dealing with the principal through him, and
such negligence is justly deemed equivalent to fraud ?
Such a thing may certainly be done with fraudulent pur-
pose, in the hope that the agent will, by a statement im-
perfect or erroneous in that very particular, though not so
to his knowledge, deceive the other party. Now this

would beyond question be actual fraud in the principal,

with the ordinary consequences (#). If the same thing

happens by inadvertence, it seems inconvenient to treat

such inadvertence as venial, or exempt it from the like con-

sequences. We think, therefore, that an action lies against^

whether properly to be described, under
the principal;
common law forms of pleading, as an action for deceit, or
as an analogous but special action on the case, there is no
occasion to consider (y).
On the other hand an honest and prudent agent may
" To the best of my own belief such and such is the
say,
case," adding in express terms or by other clear indication

by the plaintiff himself:" the dissenting judgment of course in-

defendant's plea averring- fraud eludes this.
without qualification. (y) The decision of the House of
(x) Admitted by all 'the Barons Lords in Lerry v. Peek (1889) 14
in Cornfoot v. Foicke ; Parke, 6 App. Ca. 337, 58 L. J. Ch. 864,
M. & W. at pp. 362, 374, Rolfe at tends however to make this opinion
p. 370, Alderson at p. 372. The less probable,
broader view of Lord Abinger's
272 WRONGS OF FRAUD AND MALICE.
" but I
have no information from my principal." Here
there is no ground for complaint, the other party being
fairly put on inquiry.

Liability If the principal does not expressly authorize the repre-

of corpo-
rations sentation, and does not know the contrary
be true, but to
herein.
the agent does, the representation being in a matter within
the general scope of his authority, the principal is liable as
he would be for any other wrongful act of an agent about
his business. And as this liability isnot founded on any

personal default in the principal, it equally holds when the

principal is a corporation (z) It has been suggested, but .

never decided, that it is limited to the amount by which

the principal has profited through the agent's fraud. The
Judicial Committee have held a principal liable who got
no profit at all (a).
But it seems to be
arguable that the proposed limi-
still

tation holds in the case of the defendant being a corpora-

tion (5), though it has been disregarded in at least one

comparatively early decision of an English superior court,

the bearing of which on this point has apparently been
overlooked (c). Ulpian, on the other hand, may be cited
in its favour (d).

(z) Bar wick v. English Joint Stock Lord Chelmsford's language is

Sank (1867) Ex. Ch. L. E. 2 Ex. much more guarded.
259, 36 L. J. Ex. 147 Mackay v. ; (c) Denton v. G. N. JR. Co. (1856)

Commercial Sank of New Brunswick p. 250, above. No case could be

(1874) L. R. 5 P. C. 394, 43 L. J. stronger, for (1) the defendant was
P. C. 31 ;
Swire v. Francis (1877) 3 a corporation; (2) there was no
App. Ca. 106, 47 L. J. P. C. 18 active or intentional falsehood, but

(J. C.) ;
Houldsworth v. City of the mere negligent continuance of
Glasgow Bank (1880) Sc. 5 App. an announcement no longer true ;

Ca. 317. See p. 85, above. (3) the corporation derived no pro-

(a] Swire v. Francis, last note. fit. The point, however, was not
(b) Lord Cranworth in Western discussed.
Bank of Scotland v. Addle (1867) (d) D. 4. 3, de dolo malo, 15 1.
L. R. 1 Sc. & D. at pp. 166, 167. Sod an in municipcs do dolo detur
 FRAUD HY OR THROUGH AGENT. 273

The hardest case that can be put for the principal, and by Reason of

no means an impossible one, is that the principal authorizes rently

a specific statement which he believes to be true, and
which at the time of giving the authority is true before ;

the agent has executed his authority the facts are materially

changed to the knowledge of the agent, but unknown to

the principal the agent conceals this from the principal,
;

and makes the statement as originally authorized. But the

case is no harder than that of a manufacturer or carrier

who finds himself exposed to heavy damages at the suit of

an utter stranger by reason of the negligence of a servant,
although he has used all diligence in choosing his servants
and providing for the careful direction of their work.
The necessary and sufficient condition of the master's

responsibility is that the act or default of the servant or

agent belonged to the class of acts which he was put in the

master's place to do, and was committed for the master's

purposes. And "no sensible distinction can be drawn

between the case of fraud and the case of any other wrong."
The authority of Barwick v. English Joint Stock Bank (e)
is believed, notwithstanding the doubts still sometimes
expressed, to be conclusive.

II. Slander of Title.

The wrong called Slander of Title is in truth a special Slander of

variety of deceit, which differs from the ordinary type in

that third persons, not the plaintiff himself, are induced

actio, dubitatur. Et puto ex suo of moral fraud as the ground of

quidem dolo non posse dari, quid action than our courts have done,
enim municipes dolo facere pos- The actio de dolo was famosa, and
sunt ? Sed si quid ad eos per- was never an alternative remedy,
venit ex dolo eorum qui res eorum but lay only when there was no
administrant, puto dandam. The other (si de his rebus alia actio non
Roman lawyers adhered more erit), D. h. t. 1.

closely to the original conception (e)

L. R. 2 Ex. 259, 265.
P. T
274 WRONGS OF FRAUD AND MALICE.

by the defendant's falsehood to act in a manner causing

damage Notwithstanding the current
to the plaintiff.

name, an action for this cause is not like an action for

" an action on the case for
ordinary defamation it is ;

special damage sustained by reason of the speaking or

"
publication of the slander of the plaintiff's title (/). Also
the a malicious one in the only proper sense of
wrong is

the word, that is, absence of good faith is an essential

condition of liability (g) or actual malice, no less than
;

special damage, is of the gist of the action.

Recent This kind of action not frequent.

extensions
is Formerly .
it
. .

of the appears to have been applied only to statements in dis-

paragement of the plaintiff's title to real property. It is
now understood that the same reason applies to the pro-
tection of title to chattels, and of exclusive interests analo-

gous to property, though not property in the strict sense,

like patent rights and copyright. But an assertion of title
made by way of self : defence or warning in any of these
matters isnot actionable, though the claim be mistaken,
if it is made in good faith (h). In America the law has
been extended to the protection of inchoate interests under
an agreement. If A. has agreed to sell certain chattels to
B., and C. by sending telegram in the name
to A. a false

of B., or by other wilfully false Tepresentation, induces A.

- . to believe that B. does not want the goods, and to sell to
C. instead, B. has an action against C. for the resulting

(/) Tindal C. J., Malachy v. (patent ;

in Wren v. Weild the
Soper (1836) 3 Bing. N. C. 371 ;
action is said be of a new
to
Bigelow L. C. 42, 52. kind, but sustainable with proof of
(g} Halsey \.Brotherhood (1881) malice); Steward v. Young (1870)
19 Ch. Div. 386, 51 L. J. Ch. 233, L. K. 5 C. P. 122, 39 L. J. C. P.
confirming previous authorities. 85 (title to goods) Dicks v. Brooks
;

(h) Wren v. Weild (1869) L. R. (1880) 15 Ch. D. 22, 49 L. J. Ch.

4 Q. B. 730, 38 L. J. Q. B. 812 (copyright in design), see 19
327; Hahey v. Brotherhood, supra Ch. D. 391.
 SLANDER OF TITLE. 275

loss to him, and it is held to make no difference that the

original agreement was not enforceable for want of satisfy-

ing the Statute of Frauds (/).

A disparaging statement concerning a man's title to use

an invention, design, or trade name, or his conduct in the
matter of a contract, may amount to a libel or slander on
him in the way of his business : in other words the special

wrong be included in defamation,

of slander of title may
but it is evidently better for the plaintiff to rely on the

general law of defamation if he can, as thus he escapes the

troublesome burden of proving malice (j ) .

It has been held in Massachusetts that if A. has exclu-

sive privileges under a contract with B., and X. by pur-
posely misleading statements or signs induces the public
to believe that X. has the same rights, and thereby diverts
custom from A., X. is liable to an action at the suit of
A. (k) . In that case the defendants, who were coach owners,
used the name of a hotel on their coaches and the drivers'

caps, so as to suggest that they were authorized and

employed by the hotelkeeper to ply between the hotel and
the railway station and there was some evidence of
;

express statements by the defendants' servants that their

coach was "the regular coach." The plaintiffs were the
coach owners in fact authorized and employed by the hotel.
The Court said that the defendants were free to compete
with the plaintiffs for the carriage of passengers and goods
to that hotel, and to advertise their intention of so doing
in any honest way ;
but they must not falsely hold them-

having the patronage of the hotel, and there

selves out as

was evidence on which a jury might well find such holding

(t) Benton v. Pratt (1829) 2 v. Massam (1879) 14 Ch. Div. 763 ;

"Wend. 385 ;
Rice v. Manley (1876) Dicks v. JBrooks, last note but one.
66 N. Y. (21 Sickels) 82. (k) Marsh v. Billings (1851) 7

(j) See Thorley's Cattle food Go. Gush. 322, and Bigelow L. C. 59.
T2
276 WRONGS OF FRAUD AND MALICE.

out as a fact. The case forms, by the nature of its facts,

a somewhat curious link between the general law of false

to the infringement
representation and the special rules as
of rights to a trade mark or trade name (I).
No English
case much like it has been met with : its peculiarity is that

no title to any property or to a defined legal right was in

question. The hotelkeeper could not give a monopoly, but
only a sort of preferential comity. But this is practically
a valuable privilege in the nature of goodwill, and equally
capable of being legally recognized and protected against
fraudulent infringement. Goodwill in the accustomed
sense does not need the same kind of protection, since it

exists by some express contract which affords a

virtue of
more convenient remedy. Some years ago an attempt was
made, by way of analogy to slander of title, to set up an
exclusive right to the name of a house on behalf of the
owner as against an adjacent owner. Such a right is not
known to the law (m).

Trade The marks and trade names was

protection of trade
marks and
trade originally undertaken by the courts on the ground of

preventing fraud (n). But the right to a trademark, after

being more and more assimilated to proprietary rights (0),
has become a statutory franchise analogous to patent rights
and copyright (p) ;
and in the case of a trade name,

The instructions given at the

(1} (n) See per Lord Blackburn, 8
trial (Bigelow L. C. at p. 63) were App. Ca. at p. 29; Lord "Westbury,
held to have drawn too sharp a L. R. 5 H. L. at p. 522 Mellish ;

distinction, and to have laid down L. J., 2 Ch. D. at p. 453.

too narrow a measure of damages, (o) Singer Manufacturing Co. v.
and a new trial was ordered. It Wilson (1876) 2 Ch. D. 434, per
was also said that actual damage Jessel M. R. at pp. 441-2 ;
James
need not be proved, sed qu. L. J. at p. 451 ;
Mellish L. J. at
(m} Day v. Brownrigg (1878) (re- p. 454.
versing Malins V.-C.) 10 Ch. Div. (p) Patents, Designs, and Trade
294, 48 L. J. Ch. 173. Marks Act, 1883, 46 & 47 Viet.
c. 57.
 'MALICIOUS ABUSE OF PROCESS. 277

although the use of a similar name cannot be complained

of unless it is shown to have a tendency to deceive cus-

tomers, yet the tendency is enough; the plaintiff is not

bound to prove any fraudulent intention or even negligence
against the defendant (<?).
The wrong to be redressed is

conceived no longer as a species of fraud, but as being

to an incorporeal franchise what trespass is to the pos-

session, or right to possession, of the corporeal subjects of

property. We therefore do not pursue the topic here.

III. Malicious Prosecution and Abuse of Process.

We have here one of the few cases in which proof of Malicious

evil motive is required to complete an actionable wrong, tion.
" In an actien for malicious
prosecution the plaintiff has
to prove, first, that he was innocent and that his innocence

was pronounced by the tribunal before which the accusa-

tion was made secondly, that there was a want of reason-
;

able and probable cause for the prosecution, or, as it may

be otherwise stated, that the circumstances of the case
were such as to be in the eyes of the judge inconsistent
with the existence of reasonable and probable cause (r) ;

and, lastly, that the proceedings of which he complains

were initiated in a malicious spirit, that is, from an indirect
and improper motive, and not in furtherance of justice" (s).

And the plaintiff's case fails if his proof fails at any one
of these points. So the law has been denned by a recent

(q) HendriJfs v. Montagu (1881)

Court: cp. the authorities on false
17 Ch. Div. 638, 50 L. J. Ch. 456 ; imprisonment, pp. 197203, above.
Singer Manufacturing Co. v. Loog (s) Bowen L. J., Abra^fa TJT.
E. N
(1882) 8 App. Ca. 15. R. Co. (1883) 11 Q. B. Div. 440,
(r) The facts have to be found 455, 52 L. J. Q. B. 620 the deci-
:

by the jury, but the inference that sion of the Court of Appeal was
on those facts there was or was affirmed in H. L. (1886) 11 App.
not reasonable and probable cause Ca. 247, 55 L. J. Q. B. 457.
is not for the jury but for the
278 WRONGS OF FRAUD AND MALICE.

judgment of the Court of Appeal, confirmed by the House

of Lords. It seems needless for the purposes of this work
to add illustrations from earlier authorities.

It is no excuse for the defendant that he instituted the

prosecution under the order of a Court, if the Court was
moved by the defendant's false evidence (though not at his
request) to give that order, and
the proceedings in the if

prosecution involved the repetition of the same falsehood.

For otherwise the defendant would be allowed to take
advantage of his own fraud upon the Court which ordered
the prosecution (t) .

As in the case of deceit, and for similar reasons, it has

been doubted whether an action for malicious prosecution
lie against a corporation. It seems, on principle, that
such an
rwill the wrongful act was done by a
action will lie if

servant of the corporation in the course of his employment

and in the company's supposed interest, and it has been so
held but there are dicta to the contrary (a?), and in
(u)

particular a recent emphatic opinion of Lord Bram-

well's (y), which, however, as pointed out by some of his

colleagues at the time (s), was extra-judicial.

Malicious not an actionable wrong to

it is
Generally speaking,
ceedings. institute civil proceedings without reasonable and probable

cause, even if malice be proved. For in contemplation of

law the defendant who unreasonably sued is sufficiently
is

indemnified by a judgment in his favour which gives him

his costs against the plaintiff (a). And special damage

Filzjohn v. Mackinder (Ex. Ch.

(t) (x) See the judgment in the case
1861) 9 C. B. N. S. 505, 30 L. J. last cited.
C. P. 257 (diss. Blackburn and 11 App. Ca. at p. 250.
(y)

Wightman JJ.). Lord Fitzgerald, 11 App.

(z)

Edwards v. Midland Rail. Co.

(u)
Ca. at p. 244 Lord Selborne at
;

(1880) 6 Q. B. D. 287, 50 L. J. p. 256.

Q. B. 281, Fry J. (a] It is common knowledge that
 MALICIOUS ABUSE OF PROCESS. 279

beyond the expense which he has been put cannot well

to
be so connected with the suit as a natural and probable

consequence that the unrighteous plaintiff, on the ordi-

nary principles of liability for indirect consequences, will
" In the
be answerable for them(). present day, and
according to our present law, the bringing of an ordi-
nary however maliciously, and however great the
action,
want of reasonable and probable cause, will not support a
subsequent action for malicious prosecution" (c).

But there are proceedings which, though civil, are not

ordinary actions, and fall within the reason of the law

which allows an action to lie for the malicious prosecution
of a criminal charge. That reason is that prosecution on
a charge "
involving either scandal to reputation, or the
possible loss of liberty to the person "(d), necessarily and
manifestly imports damage. Now the commencement of
proceedings in bankruptcy against a trader, or the analogous
process of a petition to wind up a company, is in itself a
blow struck at the credit of the person or company whose
affairs are thus brought in question. Therefore such a

proceeding, if instituted without reasonable and probable

cause and with malice, is an actionable wrong (e) Other .

the costs allowed in an action are (c) Bowen L. J., 11 Q. B. D. at

hardly ever a real indemnity. The p. 690. There has been a contrary
true reason is that litigation must decision in Vermont : Closson v.

end somewhere. If A. may sue Staples (1869) 42 Vt. 209 1 Am. ;

B. for bringing a vexatious action, Rep. 316. do notWe

think it is

then, if A. fails to persuade the generally accepted in other juris-

Court that B.'s original suit was dictions; it is certainly in accord-
vexatious, B. may again sue A. ance with the opinion expressed
for bringing this latter action, and by Butler in his notes to Co. Lit.
so ad itifinitum. 161 ,
but Butler does not attend
(b) See the full exposition in the
to the distinction by which the
Court of Appeal in Quartz Hill authorities he relies on are ex-
Gold Mining Co. v. Eyre (1883) plained.
11 Q. B. Div. 674, 52 L. J. Q. B. (^ 11 Q. B. Div. 691.
488, especially the judgment of (e)Quartz Hill Gold Mining Co. v.
Bowen L. J. Eyre (1883) note (b]. The contrary
280 WRONGS OF FRAUD AND MALICE.

similar exceptional cases were possible so long as there

were forms of civil process commencing with personal
attachment ;
but such procedure has not now any place in
our system ; and the rule that in an ordinary way a fresh
action does not lie for suing a civil action without cause
has been settled and accepted for a longer time (/).much .

In common law jurisdictions where a suit can be commenced

by arrest of the defendant or attachment of his property,
the old authorities and distinctions may still be material (g).
The principles are the'same as in actions for malicious pro-
secution, mutatis mutandis thus an action for maliciously
:

procuring the plaintiff to be adjudicated a bankrupt will not

lie unless and until the adjudication has been set aside (7^).

Probably an action will lie for bringing and prosecuting

an action in the name of a third person maliciously (which
must mean from ill-will to the defendant in the action,
and without an honest belief that the proceedings are or

will be authorized by the nominal and without

plaintiff),
reasonable or probable cause, whereby the party against
whom that action is brought sustains damage but ;

certainly such an action does not lie without actual

damage (j).

IV. Other Malicious Wrongs.

Conspi- The modern action for malicious prosecution has taken

the place of the old writ of conspiracy and the action on

opinions expressed in Johnson v. Mod. and also in 5 Mod.,

208, 210,
Emerson (1871) L. R. 6 Ex. 329, Salkeld, and Carthew.
40 L. J. Ex. 201, with reference (g) See Cool ey on Torts, 187. As
to proceedings under the Bank- to British India, see Raj Chunder
ruptcy Act of 1869, are disap- Roy v. Shama Soondari Debt, I. L.
proved: under the old bankruptcy R. 4 Cal. 583.
law it was well settled that an (A) Metropolitan Bank v. Pooley
action might be brought for ma- (1885) 10 App. Ca. 210, 54 L. J.
licious proceedings. Q. B. 449.
(/) Savile or Savill v. fioberts (i) Cotterell v. Jones (1851) 11
(1698) 1 Ld. Raym. 374, 379 ;
12 C. B, 713 ;
21 L. J. C. P. 2.
 CONSPIRACY, ETC. 281

the case grounded thereon (A-), out of which it seems to

have developed. Whether conspiracy is known to the law
as a substantivewrong, or in other words whether two or
more persons can ever be joint wrong-doers, and liable to
an action as such, by doing in execution of a previous
agreement something it would not have been unlawful for
them to do without such agreement, is a question of mixed
history and speculation not wholly free from doubt. It
seems to be the better opinion that the conspiracy or
" confederation" is
only matter of inducement or evidence.
"
As a rule it is the damage wrongfully done, and not the
conspiracy, that the gist of actions on the case for con-
is
"
spiracy (/).
Either the wrongful acts by which the plain-
tiffhas suffered were such as one person could not commit

alone, say a riot, or they were wrongful because malicious,

and the malice is proved by showing that they were done
in execution of a concerted design. In the singular case
of Gregory v. Duke of Brunswick (m) the action was in
effect for hissing the plaintiff off the stage of a theatre in

pursuance of a malicious conspiracy between the defen-

dants. The Court were of opinion that in point of law the
conspiracy was material only as evidence of malice, but
that in point of fact there was no other such evidence, and
therefore the jury were rightly directed that without proof
of it the plaintiff's case must fail.
"
be true, in point of law, that, on the declaration
It may
as framed, one defendant might be convicted though the
other were acquitted but whether, as a matter of fact, the
;

plaintiff could entitle himself to a verdict against one alone,

is a very different question. It is to be borne in mind that

(k) F. N. B. 114 D. sqq. (m) 6 Man. & Gr. 205, 953 (1844).
(T)
Bowen L. Mogul Steam-
J. in The defendants justified in a plea
ship C0..v. McGregor (1889) 23 Q. which has the merit of being
B. Div. at p. 616. amusing.
282 WRONGS OF FRAUD AND MALICE.

the act of hissing in a public theatre is, pnaidfade, a law-

ful act and even if it should be conceded that such an
;

act, though done without concert with others, if done from

a malicious motive, might furnish a ground of action, yet
it would be very difficult to infer such a motive from the

insulated acts one person unconnected with others.

of

Whether, on the facts capable of proof, such a case of

malice could be made out against one of the defendants,

as, apart from any combination between the two, would

warrant the expectation of a verdict against the one alone,
was for the consideration of the plaintiff's counsel ; and,
when he thought proper to rest his case wholly on proof of
conspiracy, we think the judge was well warranted in
treating the case as one in which, unless the conspiracy
were established, there was no ground for saying that the
plaintiff was entitled to a verdict and it would have been
;

unfair towards the defendants to submit it to the jury as a

case against one of the defendants to the exclusion of the

other, when the attention of their counsel had never been

called to that view of the case, nor had any opportunity
[been ?] given them to advert to or to answer it. The
case proved was, in fact, a case of conspiracy, or it was no
case at all on which the jury could properly find a verdict
"
for the plaintiff (n).
Soon after this case was dealt with
by the Court of
Common Pleas in England, the Supreme Court of New
York laid it down (not without examination of the earlier
authorities) that conspiracy is not in itself a cause of
action (o).

In 1889 the question was raised in a curious and

important case decided by the Court of Appeal in this

(n) PerColtman J., 6 Man. &Gr. (o) Hutchins v. Hutchins (1845)

at p. 959. 7 Hill 104, and Bigelow L. C. 207.
See Mr. Bigelow's note thereon.
 MALICIOUS HINDRANCES. 283

country (p). The

material facts may, perhaps, be fairly

summarized, for the present purpose, as follows A., B., :

and C. were the only persons engaged in a certain foreign

trade, and desired to keep the trade in their own hands.
Q. threatened, and in fact commenced, to compete with
them. A., B., and C. thereupon agreed to offer specially
favourable terms to all customers who would agree to deal
with themselves to the exclusion of U. and all other com-

petitors outside the combination. This action had the

effect of driving Q. out of the market in question, as it
was intended to do. It was held that A., B., and C. had
done nothing which would have been unlawful if done by
a simple trader in his own sole interest, and that their
action did not become unlawful by reason of being under-
taken in concert by several persons for a common interest.

The agreement was in restraint of trade, and could not

have been enforced by any of the parties if the others had
refused to execute it, but that did not make it punishable
or wrongful (q) .

It is
possible, however, that an agreement of this kind
might in some cases be held to amount to an indictable

conspiracy on the ground of obvious and excessive public

inconvenience (r). At the same time, even if this be
admitted, it would not be easy for a court to say before-
hand how far any particular trade combination was likely
to have permanently mischievous results () .

Mogul Steamship Company v.

(p) as between themselves, is void as

McGregor (1889) 23 Q. B. Div. 598, in restraint of trade, and C. suffers

58 L. J. Q. B. 465 (diss. Lord Esher damage as a proximate conse-
M. B,.). quence, A. and B. are wrong-
(q) 23 Q. B. Div. at p. 619, per doers as against C.
Bowen L. J. ib. 626, per Fry
; (r) Bowen L. J., 23 Q. B. Div.
L. J. Lord Esher was apparently at p. 618.

prepared to hold that whenever A. (s) Fry L. J., at p. 628.

and B. make an agreement which,
284 WRONGS OF FRAUD AND MALICE.

Malicious There may be other malicious injuries not capable of

" where a violent or malicious act
ference more specific definition

ig ^ one a man>s occupation, profession, or way of getting

^
"
tion > a livelihood as where the plaintiff is owner of a decoy
;

for catching wild fowl, and the defendant, without enter-

ing on the guns near to
plaintiff's land, wilfully fires off
the decoy, and frightens wild fowl away from it (t). Not
many examples of the kind are to be found, and this is
natural ;
for they have to be sought in a kind of obscure
middle region where the acts complained of are neither
wrongful in themselves as amounting to trespass against
the plaintiff or some third person (u), nuisance (?), or
breach of an absolute specific duty, nor yet exempt from
search into their motives as being done in the exercise of
common right in the pursuit of a man's lawful occupation
or the ordinary use of his property (x) . Mere competition
carriedon for the purpose of gain, not out of actual malice,
and not by unlawful means, such as molestation or intimi-
dation, not actionable, even though it be intended to
is

drive a rival trader out of the field, and produce that

result (y). "The policy of our law, as at present de-
claredby the legislature, is against all fetters on combi-
nation and competition unaccompanied by violence or
"
fraud or other like injurious acts (s). Driving a public

performer off the stage by marks of disapprobation which

proceed not from an honest opinion of the demerits of his
performance or person, but from private enmity, is, as we
(t)
v.
Taylor (1809)
Carrington ship was of course unlawful per se.
11 East 571, following feeble v. (v) Cp. Ibbotson v. Peat (1865)

HicJcerinffill (1705) ib. 573 in notis, 3 H. & C. 644 ;

34 L. J. Ex. 118.
where see Holt's judgment. (x) See p. 133, above.
(u) Tarleton v. McGawley, Peake (y) Mogul Steamship Company v.

270 [205] : the defendant's act in McGregor, note (p) last page.
firing at negroes to prevent them (z) Fry L. J., 23 Q.
B. Div. at
from trading with the plaintiff's p. 628.
 PUBLIC OFFICERS. 285

have just seen, a possible but doubtful instance (a) . Holt

put the case of a schoolmaster frightening away children
from attendance at a rival school (b) It is really on the . contract,

same principle that an action has been held to lie for

maliciously (that is, with the design of injuring the plain-

tiff or gaining some advantage at his expense) procuring
a third person to break his contract with the plaintiff, and

thereby causing damage to the plaintiff (c). The precise

extent and bearing of the doctrine are discussed in the
final chapter of this book with reference to the difficulties

that have been felt about and expressed in dissenting

it,

judgments and elsewhere. Those difficulties (I submit and

shall in that placeendeavour to prove) either disappear or
are greatly reduced when the cause of action is considered
as belonging to the class in which malice, in the sense of
actual ill-will, is a necessary element.

or.fran
Generally speaking, every wilful interference with the
exercise of a franchise is actionable without regard to the

defendants act being done in good faith, by reason of a

mistaken notion of duty or claim of right, or being con-
" If a man hath a franchise and is
sciously wrongful.
hindered in the enjoyment thereof, an action doth lie,
which is an action upon the case ".(d). But persons may
as public officers be in a quasi- judicial position in which
they will not be liable for an honest though mistaken
exercise of discretion in rejecting a vote or the like, but
will be liable for a wilful and conscious, and in that sense

(a) Gregory v. Duke of Bruns- 333, 50 L. J. Q. B. 305.

wick, supra. (d)Holt C. 3.in.Ashby v. White,

(b) Keeble v. Hickeringill, note at p. 13 of the special report first

(t)
last page. printed in 1837. The action was
(c} Lumley v. Gye (1853) 2 E. & on the case merely because trespass
B. 216 ;
22 L. J. Q. B. 463 ;
would not lie for the infringement
Bowen'v. Hall (1881) 6 Q. B. Div. of an incorporeal right of that kind.
286 WRONGS OF FRAUD AND MALICE.

malicious, denial of right (e).

In such cases the wrong, if

any, belongs to the class we have just been considering.

Mainte- The wrong of maintenance, or aiding a party in litiga-

tion without either interest in the suit, or lawful cause of

kindred, affection, or charity for aiding him, is akin to

malicious prosecution and other abuses of legal process ;

but the ground of it is not so much an independent wrong

"
as particular damage resulting from a wrong founded
"
upon a prohibition by statute a series of early statutes
said to be in affirmation of the common law "which
"
makes it a criminal act and a misdemeanor (/). Hence
Y itseems that a corporation cannot be guilty of mainte-
nance (/). Actions for maintenance are in modern times
rare though possible (g) ;
and the decision of the Court of

Appeal that mere charity, with or without reasonable

ground, is an excuse for maintaining the suit of a
stranger (/*),
does not tend to encourage them.

(e)
Tozer v. Child (1857) Ex. Ch. (g) Bradlaugh v. Newdegate (1883)
7 E. & B. 377, 26 L. J. Q. B. 151. 11 Q. B. D. 1, 52 L. J. Q. B. 454.
(/) Lord Selborne, Metrop. Bank (h) Harris v. Brisco (1886) 17
v. Pooley (1885) 10 App. Ca. 210, Q. B. Div. 504, 55 L. J. Q. B. 423.
218, 54 L. J. Q. B. 449.
 287

CHAPTEE IX.

WRONGS TO POSSESSION AND PROPERTY.

I. Duties regarding Property generally.

EVERY kind of intermeddling with anything which is the Absolute

subject of property a wrong unless it is either autho- r^p

is
3

*lier8
^ '

rized by some person entitled to deal with the thing in

rt
that particular way, or justified by authority of law, or

(in some cases but by no means generally) excusable on

the ground that it is done under a reasonable though mis-
taken supposition of lawful title or authority. Broadly

speaking, we touch the property of others at our peril, and

honest mistake in acting for our own interest (a), or even
an honest intention to act for the benefit of the true
owner (6), will avail us nothing if we transgress.

A man may
be entitled in divers ways to deal with Title, jus-
"'
property moveable or immoveable, and within a wider or excuse.
narrower range. He may be an owner in possession, with
indefinite rights of use and dominion, free to give or to
'

sell, nay to waste lands or destroy chattels if such be his

pleasure. He may
be a possessor with rights either
determined as to length of time, or undetermined though
determinable, and of an extent which may vary from
being hardly distinguishable from full dominion to being
strictly limited to a specific purpose. It belongs to the

(a) Hollins v. Fowler (1875) L. K. (1876) 1 Ex. D. 55, 45 L. J. Ex.

7 H. L. 757, 44 L. J. Q. B. 169. 186 : in trover, Hiort v. Bott (1874)
(b) In trespass, Kirk v. Gregory L. R. 9 Ex. 86, 43 L. ,T. Ex. 81.
288 WRONGS TO POSSESSION AND PROPERTY.

law of property to us what are the rights of owners

tell

and possessors, and by what acts in the law they may be

created, transferred, or destroyed. Again, a man may
have the right of using property to a limited extent, and
either to the exclusion of all other persons besides the
owner or possessor, or concurrently with other persons,
without himself being either owner or possessor. The
definition of such rights belongs to that part of the law of

property which deals with easements and profits. Again,

he maybe authorized by law, for the execution of justice
or for purposes of public safety and convenience, or under

exceptional conditions for the true owner's benefit, to

interfere with property to which he has no title and does
not make any claim. We have seen somewhat of this in
"
General Exceptions." Again, he may be
the chapter of

justified by a consent of the owner or possessor which does

not give him any interest in the property, but merely
excuses an act, or a series of acts, that otherwise would be

wrongful. Such consent is known as a licence.

Title Title to property, and authority to deal with property

P 6n '

on con- in specified ways, are commonly conferred by contract or

-
tract.
n p ursuance Of some contract. Thus it oftentimes depends
on the existence or on the true construction of a contract
whether a right of property exists, or what is the extent
of rights admitted to exist. A man obtains goods by
fraud and sells them to another purchaser who buys in

good reasonably supposing that he

faith, is dealing with
the true owner. The fraudulent re-seller may have made
a contract which the original seller could have set aside, as

against him, on the ground of fraud. If so, he acquires

property in the goods, though a defeasible property, and

the ultimate purchaser in good faith has a good title.
But the circumstances of the fraud may have been such
 AUTHORITY AND TITLE. 289

that there was no true consent on the part of the first

owner, no contract at all, and no right of property what-

ever, not so much as lawful possession, acquired by the

apparent purchaser. If so, the defrauder has not any
lawful interest which he can transfer even to a person

acting in good faith and reasonably and the ultimate :

purchaser acquires no manner of title, and notwithstanding

his innocence is liable as a wrong-doer (<?). Principles
essentially similar, but affected in their application, and
not unfrequently disguised, by the complexity of our law
of real property, hold good of dealings with land (d).

Acts of persons dealing in good faith with an apparent Excep-

owner may be, and have been, protected in various ways protection
and to a varying extent by different systems of law. The
n
purchaser from an apparent owner may acquire, as under j .

the common-law rule of sales in market overt, a better title

than his vendor had ; or, by an extension in the same line,

the dealings of apparently authorized agents in the way of

sale or pledge may, for the security of commerce, have a

special validity conferred on them, as under our Factors

Acts (e) ;
or one who has innocently dealt with goods
which he is now unable to produce or restore specifically

may be held personally excused, saving the true owner's

liberty to retake the goods if he can find them, and
subject to the remedies over, if any, which may be avail-
able under a contract of sale or a warranty for the

person dispossessed by the true owner. Excuse of this

kind is however rarely admitted, though much the same

(c) Hollins v. Fowler (1875) L. E. (d) See Pilcher v. Rawlins (1871)

7 H. L. 757, 44 L. J. Q. B. 169 ;
L. R. 7 Ch. 259, 41 L. J. Oh. 485.
Gundy Lindsay (1878) 3 App. Ca.
v. (e) Consolidated by the Factors

459, 47 L. J. Q. B. 481. Act, 1889, 52 & 53 Viet. c. 45.

P. U
290 WRONGS TO POSSESSION AND PROPERTY.

result may sometimes be arrived at on special technical

grounds.

The rights It would seem from doubtful questions of

and reme- that, apart
dies title (which no system of law can wholly avoid), there
known
to the ought not to be great difficulty in determining what
common
law are amounts to a wrong to property, and who is the person
possessory.
wronged. But in fact the common law does present great
difficulties; and this because its remedies were bound,
until a recent date, to medieval forms, and limited by
medieval conceptions. The forms of action brought not
Ownership but Possession to the front in accordance with
a habit of thought which, strange as it may now seem to

us, found the utmost difficulty in conceiving rights of

property as having full existence or being capable of

transfer and succession unless in close connexion with the

physical control of something which could be passed from

hand to hand, or at least a part of it delivered in the
name of the An
owner in possession was
whole (/).
protected against disturbance, but the rights of an owner
out of possession were obscure and weak. To this day it
continues. so with regard to chattels. For many purposes
" "
the true owner of goods is the person, and only the

person, entitled to immediate possession. The term is a

short and convenient one, and may be used without
scruple, but on condition of being rightly understood.

Regularly the common law protects ownership only

through possessory rights and remedies. The reversion or

reversionary interest of the freeholder or general owner out

of possession is indeed well known to our authorities, and

(/) See Mr. F. W. Maitland's divers profitable comparisons of the

articles on "The Seisin of Chat- rules concerning real and personal
tels
' '
and " The Mystery of Seisin, ' '

property will be found.

L. Q. R. i. 324, ii. 481, where
 POSSESSION AND OWNERSHIP. 291

by conveyancers it is regarded as a present estate or inte-

rest. But when it has to be defended in a court of com-
mon law, the forms of action treat it rather as the shadow
cast before by a right to possess at a time still to come.
It has been said that there is no doctrine of possession in
our law. The reason of this appearance, an appearance
capable of deceiving even learned persons, is that posses-
sion has all but swallowed up ownership and the, rights;

of a,
possessor, or one entitled to possess, have all but

monopolized the very name of property. There is a com-

mon phrase in our books that possession is print a facie
evidence of title. It would be less intelligible at first

sight, but not less correct, to say that in the developed

system of common law pleading and procedure, as it
existed down to the middle of this century, proof of title
was material only as evidence of a right to possess. And
it must be remembered that
although forms of action are
no longer with us, causes of action are what they were,
and cases may still occur where it is needful to go back to
the vanished form as the witness and measure of subsist-

ing rights. The sweeping protection given to rights of

property at this day is made up by a number of theoreti-
cally distinct causes of action. The disturbed possessor
had his action of trespass (in some special cases replevin) ;

if. wrong done the person entitled to

at the time of the

possess was not in actual legal possession, his remedy was

detinue, or, in the developed system, trover. An owner
who had neither possession nor the immediate right to

possession could redress himself by a special action on the

case, which did not acquire any technical name.

Notwithstanding first appearances, then, the common Possession

law has a theory of possession, and a highly elaborated one. tention.

u2
292 WRONGS TO POSSESSION AND PROPERTY.

To discuss it fully would not be appropriate here (g) ;

but
we have to bear in mind that it must be known who is in

legal possession of any given subject of property, 'and who

is entitled to possess it, before we can tell what wrongs
are capable of being committed, and against whom, by
the person having physical control over it, or by others.
Legal possession does not necessarily coincide either with
actual physical control or the present power thereof (the
"detention" of Continental terminology), or with the right
" "
to possess (constantly called property in our books) ;

and it need not have a rightful origin. The separation of

detention, possession in the strict sense, and the right to

possess, isboth possible and frequent. to A. lends a book

B., gratuitously and not for any fixed time, and B. gives
the book to his servant to carry home. Here B.'s servant
has physical possession, better named custody or detention,
but neither legal possession (h) nor the right to possess ;

B. has legal and rightful possession, and the right to

possess as against every one but A. while A. has not ;

possession, but has a right to possess which he can make

absolute at any moment by determining the bailment to

B., and which the law regards for many purposes as if

it were already absolute. As- to an actual legal possession

(besides and beyond mere detention) being acquired by

wrong, the wrongful change of possession was the very
substance of disseisin as to land, and is still the
very sub-
stance of trespass by taking and carrying away goods (de
bonis asportatis), and as such it was and is a necessary
condition of the offence of larceny at common law.

(g) See "An Essay on Possession a stranger ;

see Moore v. RoUnson,
in the Common Law " by Mr. E. S. 2 B. & Ad. 817. The law about the
Wright and the present writer custody of servants and persons in
(Oxford: Clarendon Press, 1888). alike position has vacillated from
(K) Yet it is not certain that he time to time, and has never been
Could not maintain trespass against defined as a whole.
 CUSTODY AND POSSESSION. 293

The common law, when must choose between denying

it

legal possession to the person apparently in possession, and

attributing it to a wrong-doer, generally prefers the latter

course. In Roman law there is no such general tendency,
though the results are often similar (i).

Trespass the wrongful disturbance of another person's Trespass

is

possession of land(/) or goods. Therefore it cannot be version!"

committed by a person who is himself in possession;
though in certain exceptional cases a dispunishable or even
a rightful possessor of goods may by his own act, during a
continuous physical control, make himself a mere tres-

passer. But a do wrong in other ways.

possessor may
He may commit, waste as to the land he holds, or he may
become liable to an action of ejectment by holding over
after his title or interest is determined. As to goods he
may detain them without right after it has become his

duty to return them, or he may convert them to his own

which the scope has been greatly extended
use, a phrase of
in the modern law. Thus we have two kinds of duty,
namely from meddling with what is lawfully
to refrain

possessed by another, and to refrain from abusing posses-

sion which we have lawfully gotten under a limited title ;

and the breach of these produces distinct kinds of wrong,

having, in the old system of the common law, their
distinct and appropriate remedies. But a strict observance
of these distinctions in practice would have led to intoler-

able results, and a working margin was given by beneficent

fictions which (like most indirect and gradual reforms)

(i) Cp. Holland, "Elements of which is explained by "si ad corn-

Jurisprudence," 4th ed. pp. 162-5. modum uti non possit." Bracton,
(j) Formerly it was said that fo. 217 a. I do not think this dis-

trespass to land was a disturbance tinction was regarded in any later

not amounting to disseisin, though period,
it might be "vicina disseisinae,"
294 WRONGS 10 POSSESSION AND PROPERTY.

extended the usefulness of the law at the cost of making it

intricate and difficult to understand. On the one hand the
remedies of an actual possessor were freely accorded to

persons who had only the right to possess (k) on the other ;

hand the person wronged was constantly allowed at his

option to proceed against a mere trespasser as if the tres-
passer had only abused a lawful or at any rate excusable

possession.

Alterna- In the later history of common law

pleading trespass
dies. and conversion became largely though not wholly inter-
changeable. Detinue, the older form of action for the
recovery of chattels, was not abolished, but it was generally
preferable to treat the detention as a conversion and sue in
trover (/), so that trover practically superseded detinue, as

the writ of right and the various assizes, the older and
once the only proper remedies whereby a freeholder could
recover possession of the land, were superseded by eject-

ment, a remedy at first introduced merely for the protec-

tion of leasehold interests. With all their artificial exten-
sions these forms of action did not completely suffice.
There might still be circumstances in which a special action
on the case was required. And these complications cannot
be said to be even now wholly obsolete. For exceptional
circumstances may still occur in which it is doubtful
whether an action without proof of actual damage, or,
lies

assuming that the.plaintiff is entitled to judgment, whether

that judgment shall be for the value of the goods
wrong-
fully dealt with or only for his actual damage, which may
(k) See Smith v. Milles, 1 T. R. tain cases, e. g. on an executor,
480, and note that "constructive independently of any physical ap-
possession," as used in our books, prehension or transfer; (iii.) an
includes (i.) possession exercised immediate right to possess, which
through a servant or licensee (ii.); from actual possession,
is distinct

possession conferred by law, in cer- (/) Blackst. iii. 152.

 WHAT IS TRESPASS. 295

be a nominal sum. Under such conditions

go we have to
back to the old forms and see what the appropriate action
would have been. This is not a desirable state of the
law (w), but while it exists we must take account of it.

II. Trespass.

Trespass may be committed by various kinds of acts, of What

which the most obvious are entry on another's land (tres- said a
pass quare clausum fregit), and taking another's goods
(trespass de bonis Notwithstanding that
asportatis) (n).

trespasses punishable in the king's court were said to be

vi et armis, and were supposed to be punishable as a breach

of the king's peace, neither the use of force, nor the break-

ing of an inclosure or transgression of a visible boundary,

nor even an unlawful intention, is necessary to constitute an
actionable trespass. It is likewise immaterial, in strict-

ness of law, whether there be any actual damage or not.

"
Every invasion of private property, be it ever so minute, is
"
a trespass (o). There is no doubt that if one walks across
a stubble field without lawful authority or the occupier's

leave, one is technically a trespasser, and it may be doubted

whether persons who roam about common lands, not being
in exercise of some particular right, are in a better

position. It be that, where the public enjoyment of

may
such lands for sporting or other recreation is notorious, for

example on Dartmoor (p), a licence (as to which more

(m) See per Thesiger L. J.,4Ex. (0) Entick v. Carrington, 19 St.

Div. 199. Tr. 1066. "Property" here, as
The exact parallel to tres-
(n) constantly in our books, really
pass de bonis asportatis is of course means possession or a right to pos-

not trespass gu. cl.fr. simply, but session.

trespass amounting to a disseisin (p) As a matter of fact, the Dart-

of the freeholder or ouster of the moor hunt has an express licence
tenant for years or other interest from the Duchy of Cornwall,
not freehold.
296 WRONGS TO POSSESSION AND PROPERTY.

presently) would be implied. Oftentimes warnings or

requests are addressed to the public to abstain from going

on some specified part of open land or private ways, or
from doing injurious acts. In such cases there seems to
be a general licence to use the land or ways in conformity
with the owner's will thus expressed. But even so,
" bare
persons using the land are no more than licensees,"
and their right is of the slenderest.

Quaere It has been doubted whether it isa trespass to pass over

concern-
ing land without touching the soil, as one may in a balloon,
balloons.
or to cause a material object, as shot fired from a gun, to

pass over it. Lord Ellenborough thought it was not

" to interfere with
in itself a trespass the column of air

superincumbent on the close," and that the remedy would

be by action on the case for any actual damage though :

he had no holding that a man is a trespasser

difficulty in
who fires a gun on his own land so that the shot fall on
his neighbour's land (q) Fifty years later Lord Black-
.

burn inclined to think differently (r), and his opinion seems

the better. Clearly there can be a wrongful entry on land

below the surface, as by mining, and in fact this kind of
trespass is rather prominent in our modern books. It does

not seem possible on the principles of the common law to

assign any reason why an entry at any height above the

surface should not also be a trespass. The improbability
of actualdamage may be an excellent practical reason for
not suing a man who sails over one's land in a balloon ;

but this appears irrelevant to the pure legal theory. Tres-

Pickering v.
(<?)
Eudd (1815) 4 Telephone Co. (1884) 13 Q. B. Div.
Camp. 219, 221. 904, 927, 53 L. J. Q. B. 449. It

(r) Kemjon v. Hart (1865) 6 B. may be otherwise, as in that case,

& S. 249, 252, 34 L. J. M. C. 87 ;
where statutory interests in land
and see per Fry L. J. in Wands- are conferred for special purposes.
worth Board of Works v. United
 WHAT IS TRESPASS. 297

passes clearly devoid of legal excuse are committed every

day on the surface itself, and yet are of so harmless a kind
that no reasonable occupier would or does take any notice
of them. Then one can hardly doubt that it might be a
nuisance, apart from any definite damage, to keep a
balloon hovering over another man's land but if it is not :

a trespass in law to have the balloon there at all, one does

not see how a continuing trespass is to be committed by

keeping it there. Again, it would be strange if we could

object to shots being fired across our land only in the event
of actualinjury being caused, and the passage of the
foreign body in the air above our soil being thus a mere
incident in a distinct trespass to person or property. The
doctrine suggested by Lord Ellenborough's dictum, if
generally accepted and acted on, would so far be for the
benefit of the public service that the existence of a right of
"
."innocent passage for projectiles over the heads and
lands of the Queen's subjects would increase the somewhat
limited facilities ofland forces for musketry and
the

artillery practice at long ranges. But we are not aware

that such a right has in fact been claimed or exercised.

Trespass by a man's with exactly like

cattle is dealt

trespass by himself ;
but in the modern view of the law
more general rule or body of rules
this is only part of a

imposing an exceptionally strict and unqualified duty of

safe custody on grounds of public expediency. In that
connexion we shall accordingly return to the subject (*).

Trespass to goods may ba committed by taking posses- Trespass

" to goc 8<
sion of them, or by any other act in itself
immediately
injurious" to the goods in respect of the possessor's

(*) Chap. XII. below.

298 WRONGS TO POSSESSION AND PROPERTY.

interest (t) 9
as by killing (u), beating or chasing (y)
(a?),

animals, or defacing a work of art. Where the possession

is changed the trespass isan asportation (from the old form
of pleading, cepit et asportamt for inanimate chattels,
abduxit for animals), and may amount to the offence of
theft.Other trespasses to goods may be criminal offences
under the head of malicious injury to property. The
current but doubtful doctrine of the civil trespass being
" "
merged in the felony when the trespass is felonious has
been considered in an earlier chapter (s). Authority, so
far as known to the present writer, does not clearly show
whether it is in strictness a trespass merely to lay hands on
another's chattel without either dispossession (a) or actual

damage. By the analogy of trespass to land it seems that

it must be so. There is no doubt that the least actual

damage would be enough (b). And cases are conceivable

in which the power of treating a mere unauthorized touch-
ing as a trespass might be salutary and necessary, as where
valuable objects are exhibited in places either public or

open to a large class of persons. In the old precedents

trespass to goods hardly occurs except in conjunction with
trespass to land (c).

III. Injuries to Reversion.

Wrongs to A
person in possession of property may do wrong by
notinpos- refusing to deliver possession to a person entitled, or by

(t)
Blackst. iii. 153. shearing the plaintiff's sheep, ib.

(u) Wright v. JRamscot, I Saund. 87 G-.

83, 1 Wms. Saund. 108 (trespass (z)P. 180, above,
for killing a mastiff). (a) See Gaylard v. Morris (1849)
(at)
Dand v. Sexton, 3 T. B. 37 3 Ex. 695, 18 L. J. Ex. 297.
arm is for beating the "
(trespass vi et (b) Scratching the panel of a
plaintiff's dog). carriage would be a trespass,"
(y) A form of writ is given for Alderson B. in Fouldes v. Wil-
chasing the plaintiff's sheep with loughby, 8 M. & W. 519.
dogs, F. N. B. 90 L. ; so for (c) See F. N. B. 86-88, passim.
 INJ URIES TO REVERSION. 299

otherwise assuming to deal with the property as owner or

adversely to the true owner, or by dealing with it under

colour of his real possessory title but in excess of his rights,

or, where the nature of the object admits of it, by acts

amounting to destruction or total change of character,

such as breaking up land by opening mines, burning
wood, grinding corn, or spinning cotton into yarn, which
acts however are only the extreme exercise of assumed

dominion. The law

from entirely distinct con-
started

ceptions of the mere detaining of property from the person

entitled, and the spoiling or altering it to the prejudice of
one in reversion or remainder, or a general owner (d ) For .

the former case the common law provided its most ancient
remedies the writ of right (and later the various assizes and
the writ of entry) for land, and the parallel writ of detinue

(parallel as being merely a variation of the writ of debt,

which was precisely similar in form to the writ of right)
for goods; to this must be added, in special, but once

frequent and important cases, replevin (e). For the latter

the writ of waste (as extended by the Statutes of Marl-

bridge and Gloucester) was available as to land later this ;

was supplanted by an action on the case (/) " in the

(d) As to the term ' '

reversionary of writ of entry see Close Rolls,
interest" applied to goods, cp. vol.i.
p. 32. Blackstone is wrong
Dicey on Parties, 345. In one in stating it to have been older

way
' '
reversioner
' '
would be more than the assizes.
correct than "owner "or "general (/) When the tenancy was at
owner," for the person entitled to will, trespass would lie, Litt. s. 71;
sue in trover or prosecute for theft "the taking upon him power to
isnot necessarily dominus, and the cut timber or prostrate houses con-
dominns of the chattel may be dis- cerneth so much the freehold and
qualified from so suing or prose- inheritance as it doth amount in
outing. law to a determination of his will, ' '

(e)
It seems useless to say more Co. Litt. 57 a : just as a bailee who
The curious " breaks bulk "
is held to repudiate
of replevin here.
reader may consult Mennie v. Blake the bailment and become a mere
(1856) 6 E. & B. 842, 25 L. J. Q. trespasser.
B. 399. For the earliest form
300 WRONGS TO POSSESSION AND PROPERTY.

nature of waste," and in modern times the power and

remedies of courts of equity have been found still more
effectual (g) . The process of devising a practical remedy
for owners of chattels they were was more circuitous ;

helped by an action on the case which became a distinct

species under the name of trover, derived from the usual

though not necessary form of pleading, which alleged that

the defendant found the plaintiff's goods and converted
them to his own use (Ji)
. The original notion of conversion
in personal chattels answers closely to that of waste in
tenements ;
but it was soon extended so as to cover the
whole ground of detinue ('), and largely overlap trespass ;

a mere trespasser whose acts would have amounted to

conversion done by a lawful possessor not being allowed
if

to take exception to the true owner

"
waiving the trespass,"
and professing to assume in the defendant's favour that
his possession had a lawful origin.

TV. Waste.

"Waste. Waste is any unauthorized act of a tenant for a freehold

estate not of inheritance, or for any lesser interest, which

tends to the destruction of the tenement, or otherwise to

(g} For the history and old law, and see Littleton's remark in 33
see Co. Litt. 53, 54, Blackst. ii. H. VI., 27, pi. 12, an action of
281 iii. 225
;
notes to Greene v.
;
detinue where a finding by the de-
Cole, "Wms. Saund. 644; and
2 fendant was alleged, that "this
Woodhouse v. Walker (1880) 5 Q. B. declaration per inventionem is a new
D. 404. The action of waste proper found Haliday "; the case is trans -
"
could be brought only by him la ted by Mr. R. S. Wright in
that hath the immediate estate of Pollock and Wright on Possession,
inheritance," Co. Litt. 53a. 174.

(h) Blackst. iii. 152, cf. the (i)

I. c. whose
Martin B. phrase
Martin B. in Bur-
of " in ancient times
" is a little
judgment very
roughes v. Bayne (1860) 5 H. & N. misleading, for trover, as a settled
296, 29 L. J. Ex. 185, 188 and as ;
common form, seems to date only
to the forms of pleading, Bro. Ab. from the 16th century ;
Reeves
Accion sur le Case, 103, 109, 113, Hist. Eng. L. iv. 526.
 WASTE. 301

the injury of the inheritance. Such injury need not con-

sist in loss of market value an alteration not otherwise
;

mischievous may be waste in that it throws doubt on the

identification of the property, and thereby impairs the
evidence of title. It is said that every conversion of land

from one species to another as ploughing up woodland,

or turning arable into pasture land is waste, and it has

even been said that building a new house is waste (k).

But modern authority does not bear this out ; " in order
to prove waste you must prove an injury to the inherit-
ance" either "in the sense of value" or "in the sense
of destroying identity" (/). And in the United States,

especially the Western States,many acts are held to be

only in a natural and reasonable way of using and im-

proving the land wild woods for example
clearing
which in England, or even in the Eastern States, would
be manifest waste (m). As to permissive waste, i.e., suffer-

ing the tenement to lose its value or go to ruin for want of

necessary repair, a tenant for life or years is liable therefor
if an express duty to repair is imposed upon him by the
instrument creating his estate otherwise it is doubt- ;

ful (n). It seems that it can in no case be waste to use a

tenement in an apparently reasonable and proper manner,
"having regard to its character and to the purposes for
which it was intended to be used" (0), whatever the actual

" If the tenant build a new

(k) Powys v. Blagrave (1854) 4 D. M.
house, it is waste and if he suffer
;
G. 448 ;
Re Hotchkys, Freke v.
it to be wasted, it is a new waste." Calmady (1886) 32 Ch. D. 408, 55
Co. Litt. 53a. L. J. Ch. 546.
(I) Jones v. Chappell (1875) 20 (0) Manchester Bonded Warehouse

Eq. 539, 540-2 (Jessel M. R). Co. v. Carr (1880) 5 C. P. D. 507,

(m) Cooley on Torts, 333. 512, 49 L. J. C. P. 809 following

;

() Woodhouse v. Walker (1880) Saner v. Bilton (1878) 7 Ch. D. 815,

5 Q. B. D. 404, 407, 49 L. J. Q. B. 821, 47 L. J. Ch. 267 cp. Job v.
;

609. An equitable tenant for life Potton (1875) 20 Eq. 84, 44 L. J.

is not liable for permissive waste : Ch. 262.
 \VRONGS TO POSSESSION AND PROPERTY.

consequences of such user may be. Where a particular

course of user has been carried on for a considerable course
of time, with the apparent knowledge and assent of the
owner of the inheritance, the Court will make all reason-
able presumptions in favour of referring acts so done to a
lawful origin (p).

Modern jn mo dern of waste arise either

practice, questions
waste : between a tenant for and those in remainder, or
life (q)
4-
XY\ Q I*! 4" Q

for life. between landlord and tenant. In the former case, the
unauthorized cutting of timber is the most usual ground
of complaint in the latter, the forms of misuse or neglect
;

are as various as the uses, agricultural, commercial, or

manufacturing, for which the tenement may be let and

occupied. With regard
to timber, it is to be observed
" "
that there are timber estates on which wood is grown
for the purpose of periodical cutting and sale, so that
"
cutting the timber is the mode of cultivation" (r). On
such land cutting the timber is equivalent to taking a

crop off arable land, and if done in the usual course is not
waste. A tenant for life whose estate is expressed to

be without impeachment of waste may freely take timber

and minerals for use, but, unless with further specific
authority, he must not remove timber planted for orna-
ment (save so far as the cutting of part
required for the is

preservation of the rest) (), open a mine in a garden or

(p) Elias v. Snowdon Slate Qttar- (r) As to the general

law con-
ries Co. (1879) 4 App. Ca. 454, 465, cerning timber, and its possible
48 L. J. Oh. 811. variation by local custom, see the
In the United States, where
(q) judgment of Jessel M. R., Hony-
tenancy in dower is still common, wood v. Honywood (1874) 18 Eq.
there are many modern decisions 306, 309, 43 L. J. Ch. 652.
on questions of waste arising out of (*) See Baker v. Sebright (1879)

such tenancies. See Cooley on Torts 13 Ch. D. 179, 49 L. J. Ch. 65 ;

333, or Scribner on Dower (2nd ed. but it seems that a remainderman

1883) i. 212 214 ; ii. 795 sqtj. coming in time would be entitled
 WASTE. 303

pleasure-ground, or do like acts destructive to the indi-

vidual character and amenity of the dwelling-place (t).
The commission of such waste may be restrained by in-

junction, without regard to pecuniary damage to the

inheritance :
but, when it is once committed, the normal
measure of damages can only be the actual loss of value (u).
Further details on the subject would not be appropriate
here. They belong rather to the law of Real Property.

As between landlord and tenant the real matter in Landlord

and
dispute, in a case of alleged waste, is commonly the extent tenant.

of the tenant's obligation, under his express or implied

covenants, to keep the property demised in safe condition

or repair. Yet the wrong of waste is none the less com-
mitted (and under the old procedure was no less remedi-
able by the appropriate action on the case) because it is
also a breach of the tenant's contract (#) Since the Judi- .

cature Acts it issay whether an action

impossible to
alleging misuse of the tenement by a lessee is brought on
the contract or as for a tort (y) doubtless it would be :

treated as an action of contract if it became necessary for

any purpose to assign it to one or the other class.

V. Conversion.

Conversion, according to recent authority, may be de- Conver-

" an unauthorized 6 '

scribed as the wrong done by act which tion of

to the supervision of the Court in (u) Bubb v. Yelvertvn (1870) 10

such case ib. 188.
; Eq. 465. Here the tenant for life
(f) "Waste of this kind was known had acted in good faith under the
as "equitable waste," thecommis- belief that he was improving the
sion of it by a tenant unimpeach- property. "Wanton acts of destruc-
able for waste not being treated as tion would be very
differently
wrongful at common law see now ;
treated.
36 &
37 Viet. c. 66 (the Supreme (x) 2 Wms. Saund. 646.
Court of Judicature Act, 1873), (y) E.g. Tucker v. Linger (1882)
s. 25, sub-s. 3. 21 Ch. Div. 18, 51 L. J. Ch. 713.
304 WRONGS TO POSSESSION AND PROPERTY.

trover to
deprives another of his property permanently or for an
"
indefinite time (z). Such an act may or may not include
a trespass whether it does or not is immaterial as regards
;

the right of the plaintiff in a civil action, for even under

" waive the "
the old forms he might trespass though as ;

regards the possibility of the wrong-doer being criminally

liable it may still be a vital question, trespass by taking

and carrying away the goods being a necessary element in

the offence of larceny at common law. But the definition
of theft (in the first instance narrow but strictly consistent,
afterwards complicated by some judicial refinements and
by numerous unsystematic statutory additions) does not
concern us here. The " property " of which the plaintiff
is deprived the the right which is
subject-matter of
violated must be something which he has the immediate
right to possess only on this condition could one main-
;

tain the action of trover under the old forms. Thus,

where goods had been sold and remained in the vendor's
possession subject to the vendor's lien for unpaid purchase-
money, the purchaser could not bring an action of trover
against a stranger who removed the goods, at all events
without payment or tender of the unpaid balance (a).
But an owner not entitled to immediate possession
might have a on the
not being trover,
special action case,
for any permanent injury to his interest, though the

wrongful act might also be a trespass, conversion, or

breach of contract as against the immediate possessor (&).
As under the Judicature Acts the difference of form

(z) Bramwell B., adopting- the be allowed) in the notes to Wilbra-

expression of Bosanquet, arg., ham v. Snow, 2 Wms. Saund. 87.
Hiort v. Soft (1874) L. R. 9 Ex. (a] Lord v. Price (1874) L. R. 9

86, L. J. Ex. 81. All, or

89, 43 Ex. 54, 43 L. J. Ex. 49.
nearly all, the learning on the sub- (b) Hears v. L. $ S. 7F. E. Co.

ject down to 1871 is collected (in a (1862) 11 C. B. N. S. 850, 31 L. J.

somewhat formless manner it must C. P. 220.
 CONVERSION. 305

between trover and a special action which is not trover does

not exist, there seems to be no good reason why the idea
and the name of conversion should not be extended to
cover these last-mentioned cases.

On the other hand, the name has been thought alto- What
.
amounts
gether objectionable by considerable authorities (c) and : to conver-
sion.
certainly the natural meaning of converting property to
one's own use has long been left behind. It came to be

seen that the actual diversion of the benefit arising from

use and possession was only one aspect of the wrong, and
not a constant one. It did not matter to the plaintiff
whether was the defendant, or a third person taking
it

delivery from the defendant, who used his goods, or

whether they were used at all the essence of the injury
;

was that the use and possession were dealt with in a

manner adverse to the plaintiff and inconsistent with his
right of dominion.
The grievance the unauthorized assumption of the
is

powers of the true owner. Actually dealing with another's

goods as owner for however short a time and however
limited a purpose (d) is therefore conversion ;
so is an act
which in fact enables a third person to deal with them as
owner, and which would make such
dealing lawful only if
done by the person really entitled to possess the goods (e).
It makes no difference that such acts were done under a
mistaken but honest and even reasonable supposition of
being lawfully entitled (c/), or even with the intention of
benefiting the true owner (e) ;
nor is a servant excused for

assuming the dominion of goods on his master's behalf,

"
though he acted under an unavoidable ignorance and for

(c)
See 2 Wins. Saund. 108, and 7 H. L. 757, 44 L. J. Q. B. 169.
per Bramwell L. J., 4 Ex. D. 194. (e} Hiort v. Bott, L. R. 9 Ex. 86,
(d) Eollins v. Fowler (1875) L. R. 43 L. J Ex. 81.

P. X
306 WRONGS TO POSSESSION AND PROPERTY.

his master's benefit" (/). It is common learning that a

refusal to deliver possession to the true owner on demand
isevidence of a conversion, but evidence only (g] that is, ;

one natural inference if I hold a thing and will not deliver

it to the owner is that I repudiate his ownership and mean
to exercisedominion in despite of his title either on my own
behalf or on some other claimant's. " If the refusal is in

disregard of the plaintiff's title, and for the purpose of

claiming the goods either for the defendant or for a third
person, it is a conversion" (h). But this is not the only
possible inference and may not be the right one. The
refusal may be a qualified and provisional one the pos- :

" I am
sessor may say, willing to do right, but that I may
be sure I am
doing right, give reasonable proof that me
"
you are the true owner and such a possessor, even if
:

over-cautious in the amount of satisfaction he requires,

can hardly be said to repudiate the true owner's claim (i).
Or a servant having the mere custody of goods under the
possession of his master as bailee say the servant of a
warehouseman having the key of the warehouse may
reasonably and justifiably say to the bailor demanding his
goods "I cannot deliver them without my master's
:

"
order and this is no conversion. " An unqualified re-
;

fusal almost always conclusive evidence of a conversion

is ;

but if there be a qualification annexed to it, the question

then is whether it be a reasonable one " (A*). Again there

may be a wrongful dealing with goods, not under an

(/) Stephens v. Elwall (1815) 4 (h) Opinion of Blackburn J. in

M. & S. 259 admitted to be good
;
Hollins v. Fowler, L. R. 7 H. L.
law in Hollins v. Fowler, L. R. at p. 766.
7 H. L. at pp. 769, 795. Cp. Fine (i) See Burroughs v.Baync( 1860)
Art Society v. Union Bank of Lon- 5 H. & N. 296, 29 L. J. Ex. 185,
don (1886) 17 Q. B. Div. 705, 56 L. 188, supra, p. 300.
J. Q. B. 70. () Alexander v. Southey (1821) 5
(ff)
Saline v. Hutton, Ex. Ch. B. & A. 247, per Best J. at p. 250.
(1833), 9Bing. 471, 475.
 EVIDENCE OF CONVERSION. 307

adverse claim, but to avoid having anything to do with

them or with their owner. Where a dispute arises between
the master of a ferryboat and a passenger, and the master
refuses to carry the passenger and puts his goods on shore,
this may be a trespass, but it is not of itself a conversion (/) .

This seems of importance in modern practice, but we

little

shall see that it might still affect the measure of damages.

By a conversion the true owner is, in contemplation of

law, totally deprived of his goods ; therefore, except in a

few very special cases (m), the measure of damages in an
action of trover was the full value of the goods, and by a
satisfied judgment () for the plaintiff the property in the

goods, if they still existed in specie, was transferred to the

defendant.

The mere assertion of a pretended right to deal with Acts not

- amount
goods or threatening to prevent the owner from dealing with ing to cou-
them is not conversion, though it may perhaps be a cause of
action, if special damage can be shown (o) ;
indeed it is

doubtful whether a person not already in possession can

commit the wrong of conversion by any act of interference
limited to a special purpose and falling short of a total

assumption of dominion against the true owner (p) An .

attempted sale of goods which does not affect the property,

the seller having no title and the sale not being in market

overt, nor yet the possession, there being no delivery, is

(I)
Fouldes v. Willoughby, 8 M. & (n) Not by judgment without
W. 540; cp. Wilson v. McLaughlin satisfaction;Ex parte Drake (1877)
(1871) 107 Mass. 587. 5 Oh. Div. 866, 46 L. J. Bk. 29;

(m) See per Bramwell L. J., 3 following Brinsmead v. Harrison

Q. B. D. 490 Hiort v. L. $ N. W.
; (1871) L. R. 6 C. P. 584, 40 L. J.
R. Co. (1879) 4 Ex. Div. 188, 48 C. P. 281.
L. J. Ex. 545, where however (o) England v. Cowley (1873) L.

Bramwell L. was the only

J. R. 8 Ex. 126, see per Kelly C. B.
member of the Court who was clear at p. 132, 42 L. J. Ex. 80.
that there was any conversion at (p) See per Bramwell B. and
all. Kelly C. B. ib. 131, 132.
308 WRONGS TO POSSESSION AND PROPERTY.

not a conversion. If undertaken in good faith, it would

seem not to be actionable at all ;
otherwise it might come
within the analogy of slander of title. But if a wrongful
sale is followed up by delivery, both the seller (q) and the

buyer (r) Again, a mere col-

are guilty of a conversion.
lateral breach of contract in dealing with goods entrusted

to one is not a conversion as where the master of a ship

;

would not sign a bill of lading except with special terms

which he had no right to require, but took the cargo to
the proper port and was willing to deliver it, on payment
of freight, to the proper consignee (s).

Dealings A
merely ministerial dealing with goods, at the request
under
of an apparent owner having the actual control of them,
authority
of appa-
rent appears not to be conversion (t) but the extent of this ;

owner. limitation or exception is not precisely defined. The point

is handled in the opinion delivered to the House of Lords
in Hollins v. Fowler (u) by Lord Blackburn, then a
Justice of the Queen's Bench an opinion which gives in ;

a relatively small compass a lucid and instructive view of

the whole theory of the action of trover. It is there said
that " on one who deals with at the
principle, goods
request of the person who has
the actual custody of

them, in the bona fide belief that the custodian is the

true owner, or has the authority of the true owner,

(q} Lancashire Waggon Co. v. Heald v. Carey (next note).

Fitzhugh (1861) 6 H. & N. 502, 30 (t) Heald v. Carey (1852) 11 C. B.

L. J. Ex. 231 (action by bailor 977, 21 L. J. C. P. 97 but this is

;

against sheriff for selling the goods really a case of the class last men-
absolutely as goods of the bailee tioned, for the defendant received
under a ji. fa, ; the decision is on the goods on behalf of the true
the pleadings only) .
owner, and was held to have done
(r) Cooper v. Willomatt (1845)
1 nothing with them that he might
C. B. 672, 14 L. J. C. P. 219. not properly do.
(*) Jones v. Hough (1879) 5 Ex. (u) L. R. 7 H. L. at pp. 766
Div. 115, 49 L. J. Ex. 211; cp. 768.
 CONVERSION UNDER MISTAKE. 309

should be excused for what he does if the act is of

such a nature as would be excused if done by the

authority of the person in possession (x) ,

if he was a
finder the goods, or intrusted with their custody."
of
This excludes from protection, and was intended to ex-
clude, such acts as those of the defendants in the case then
at bar they had bought cotton, innocently and without
:

negligence, from a holder who had obtained it by fraud,

and had no title, and they had immediately resold it to a
firm for whom
they habitually acted as cotton brokers, not
making any profit beyond a broker's commission. Still it
appeared to the majority of the judges and to the House
of Lords that the transaction was not a purchase on ac-
count of a certain customer as principal, but a purchase
with a mere expectation of that customer (or some other

customer) taking the goods the defendants therefore exer-

;

cised a real and effective though transitory dominion :

and having thus assumed to dispose of the goods, they

were liable to the true owner (y). So would the ultimate
purchasers have been (though they bought and used the
cotton in good faith), had the plaintiffs thought fit to sue
them (z).

But what of the servants of those purchasers, who Acts of

handled the cotton under their authority and apparent

title, and by making it into twist wholly changed its form ?

Assuredly this was conversion enough in fact and in the

common sense of the word but was it a conversion in law ?
;

Could any one of the factory hands have been made the
nominal defendant and liable for the whole value of the

(x) Observe that this means phy- (y} See per Lord Cairns, 7 H. L.
sical possession ;
in some of the at p. 797.
cases proposed it would be accom- (z) Blackburn J., 7 H. L. 764,
panied by legal possession, in others 768 .

not.
310 WRONGS TO POSSESSION AND PROPERTY.

cotton ? Or if a thief brings corn to a miller, and the miller,

honestly taking him

be the true owner, grinds the corn
to

into meal and delivers the meal to him without notice of his
want of title ;
is the miller, or are his servants, liable to the
true owner for the value of the corn (s) ? Lord Blackburn
thought these questions open and doubtful. There appears
to be nothing in the authorities to prevent it from being
excusable to deal with goods merely as the servant or agent
of an apparent owner in actual possession, or under a con-
tract with such owner, according to the apparent owner's

direction ;
neither the act done, nor the contract (if any),
purporting to involve a transfer of the supposed property
in the goods, and the ostensible owner's direction being
one which he could lawfully give if he were really entitled
to his apparent interest, and being obeyed in the honest (a)
belief that he is so entitled. It might or might not be
convenient to hold a person excused who in good faith
assumes to dispose of goods as the servant and under the
authority and for the benefit of a person apparently entitled
to possession but not already in possession. But this could
not be done without overruling accepted authorities (b).

Rede-
bv
A bailee is prima fade
estopped as between himself and
livery
bailees. the bailor from disputing the bailor's title (c). Hence, as
he cannot be liable to two adverse claimants at once, he is

(z)
Blackburn J., 7 H. L. 764, conversion, negligence would be
768. the substantial and rational ground
(a) .Should we say "honest and of liability. Behaviour grossly in -
reasonable"? It seems not; a consistent with the common pru-
person doing a ministerial act of dence of an honest man might
this kind honestly but not rea- here, as elsewhere, be evidence of
sonably ought to be liable for bad faith.

negligence to the extent of the (b) See Stephens v. JElwall, 4 M.

actual damage imputable to his & S. 259, p. 306, above,

negligence, not in trover for the (c) 7 Hen. VII. 22, pi. 3, per
full value of the goods and even ;
Martin. Common learning in mo-
apart from the technical effect of dern books.
 CONVERSION BY BAILEES. 311

also justified in redelivering to the bailor in pursuance of

hisemployment, so long as he has not notice (or rather is

not under the effective pressure) (d) of any paramount
claim : it is only when he is in danger of such a claim that
he is not bound to redeliver to the bailor (e). This case
evidently falls within the principle suggested by Lord
Blackburn but the rules depend on the special character
;

of a bailee's contract.

Where a bailee has an interest of his own in the goods Abuse of

(as in the common cases of hiring and pledge) and under interest,

colour of that interest deals with the goods in excess of his

right, questions of another kind arise. Any excess what-

everby the possessor of his rights under his contract with
the owner will of course be a breach of contract, and it

may be a wrong. But it will not be the wrong of conver-

sion unless the possessor's dealing
"
is wholly inconsistent
with the contract under which he had the limited interest,"
as if a hirer for example destroys or sells the goods (/).

That is a conversion, for it is deemed to be a repudiation

of the contract, so that the owner who has parted with
possession for a limited purpose is by the wrongful act
itself restored tothe immediate right of possession, and
"
becomes the effectual " true owner capable of suing for
the goods or their value. But a merely irregular exercise
of power, as a sub-pledge (y) or a premature sale (h), is not

(d) Biddk v. Bond (1865) 6 B. L. J. C. P. 247; Jessel M.K. in

& 225, 34 L. J. Q. B. 137,
S. Ex parte Davies (1881) 19 Ch. Div.
where it is said that there must be 86, 90.
something equivalent to eviction (/) Blackburn J., L. B. 1 Q. B.
by title paramount. 614; Cooper y. Willomatt, 1 C. B.
(e) See Sheridan v. New Quay 672, 14 L. J. C. P. 219.
Co. (1858) 4 C. B. N. S. 618, 28 (a) Donald v. Stickling (1866) L.
L. J. C. P. 58; European and R. 1 Q. B. 585, 35 L. J. Q. B.
Australian Royal Mail Co. v. Royal 232.
Mail Steam Packet Co. (1861) 30 (//) UaUiday v. Colgate (1808)
'312 WRONGS TO POSSESSION AND PROPERTY.

a conversion ;
it is most a wrong done to the rever-
at

sionary interest of an owner out of possession, and that

owner must show that he is really damnified (*').

The technical distinction between an action of detinue

or trover and a on the case here corresponds
special action
to the substantial and permanent difference between a

wrongful act for which the defendant's rightful possession

is merely the opportunity, and a more or less plausible
abuse of the right itself.
The case of a common law lien, which gives no power of
disposal at all, is there the holder's only right is
different ;

to keep possession until his claim is satisfied. If he parts

with possession, his right gone, and his attempted dis-
is

posal merely wrongful, and therefore he is liable for the

full value (k). But a seller remaining in possession who
re-sells before the buyer is in default is liable to the buyer
only for the damage really sustained, that is, the amount
(if any) by which the market price of the goods, at the

time when the seller ought to have delivered them, exceeds

the contract price (/). The seller cannot sue the buyer for
the price of the goods, and if the buyer could recover the
full value from the seller he would get it without any
consideration : the real substance of the cause of action is

the breach of contract, which is to be compensated accord-

ing to the actual damage (m). A mortgagor having the

Ex. Ch. L. R. 3 Ex. 299 ;
see at (k) Muttiner v. Florence (1878)
p. 302, 37 L. J. Ex. 174. 3 Q. B. Div. 484, 47 L. J. Q. B.
In Johnson v. Stear (1863)
(i) 700, where an innkeeper sold a
15 C. B. N. S. 330, 33 L. J. C. P. guest's goods. A
statutory power
130, nominal damages were given ;
of sale was given to innkeepers
but it is doubtful whether, on the very shortly after this decision (41
reasoning adopted by the majority 42 Viet. c. 38), but the principle
of the Court, there should not have may still be applicable in other
been judgment for the defendant : cases.
see2Wms. Saund. 114; Blackburn (/) Chinery v. Viall (1860) 5 H.
J., L. K. 1 Q. B. 617 ;
Bramwell & N. 288, 29 L. J. Ex. 180.
L. J., 3 Q. B. D. 490. (m) "A man cannot merely by
 CONVERSION BY ABUSE OF RIGHTS. -313

possession and use of goods under covenants entitling him

thereto for a certain time, determinable by default after

notice, is virtually a bailee for a term, and, like bailees in

general, may be guilty of conversion by an absolute dis-

posal of the goods and so may assignees claiming through
;

him with no better title than his own ; the point being, as
in the other cases, that the act is entirely inconsistent with
the terms of the bailment (n). One may be allowed to

doubt, with Lord Blackburn, whether these fine distinc-

tions have done much good, and to wish " it had been
originally determined that even in such cases the owner
should bring a special action on the case and recover the
"
damage which he actually sustained (o). Certainly the
law would have been simpler, perhaps it would have been
juster. It may not be beyond the power of the House of
Lords or the Court of Appeal to simplify it even now ;

but our business is to take account of the authorities as

they stand. And, as they stand, we have to distinguish

between
(i.) Ordinary cases of conversion where the full value

can be recovered :

(ii.)
Cases where there a conversion but only the
is }/

plaintiff's actual damage can be recovered :

(iii.)
Cases where there is a conversion but only
nominal damages can be recovered but such ;

cases are anomalous, and depend on the sub-

stantial cause of action being the breach of a

contract between the parties ;

it seems doubt-

changing his form of action vary Ex. 184.

the amount of damage so as to (ri)
Fenn v. Bittleston (1851) 7
recover more than the amount to Ex. 152, 21 L. J. Ex. 41 where ;

which he is in law
really entitled see the distinctions as to trespass

according to the true facts of the and larceny carefully noted in the
case and the real nature of the judgment delivered by Parke B.
" 29 L. J. L. B.
transaction :
per Cur. (o)
1 Q. B. at p. 614.
314 WRONGS TO POSSESSION AND PROPERTY.

ful whether they ought ever to have been

admitted :

(iv.) Cases where there is not a conversion, but an

action (formerly a special or innominate action
on the case) lies to recover the actual damage.

Conver-
sion
^ man ma y J.JQ }i a bl e by estoppel as for the conversion
by
estoppel, of goods which he has represented to be in his possession
or control, although in fact they were not so at any time
when the plaintiff was entitled to possession (p).

VI. Injuries between Tenants in Common.

Trespasses As between tenants in common of either land or chattels

tenants in there cannot be trespass unless the act amounts to an

actual ouster, i.e. dispossession. Short of that " trespass
will not lie by the one against the other so far as the land

is concerned In the same way acts of legitimate

"(</).
use of the common property cannot become a conversion

through subsequent misappropriation, though the form in

which the property exists may be wholly converted, in a
wider sense, into other forms. There is no wrong to the
co-tenant's right of property until there is an act incon-
sistentwith the enjoyment of the property by both.
For every tenant or owner in common is equally entitled
to the occupation and use of the tenement or property (r) ;

he can therefore become a trespasser only by the manifest

assumption of an exclusive and hostile possession. It was
for some time doubted whether even an actual expulsion
of one tenant in common by another were a trespass but ;

the law was settled, in the latest period of the old forms

(p) Seton v. La/one (1887) 19 Q. Seward (1872) L. R. 5 H. L. 464,

B. Div. 68, 56 L. J. Q. B. 415. 472, 41 L. J. C. P. 221.
(q) Lord Hatherley, Jacobs v. (r) Litt. s. 323.
 TENANTS IN COMMON. 315

of pleading, that it is (s). At first sight this seems an

exception to the rule that a person who is
lawfully in
possession cannot commit trespass : but it is not so, for
a tenant in common has legal possession only of his
own share. Acts which involve the destruction of the
property held common, such
in as digging up and
carrying away the soil, are deemed to include ouster (t) ;

unless, course, the very nature of the property (a

of
coal-mine for example) be such that the working out of
it isthe natural and necessary course of use and enjoy-

ment, in which case the working is treated as rightfully

undertaken for the benefit of all entitled, and there is no
question of trespass to property, but only, if dispute arises,
of accounting for the proceeds (u) .

VII. Extended Protection of Possession.

An important extension of legal protection and remedies Rights of

has yet to be noticed. Trespass and other violations of possessor

possessory rights can be committed not only against the

person who is lawfully in possession, but against any
person who has legal possession, whether rightful in its
origin or not, so long as the intruder cannot justify his
act under a better title. A mere stranger cannot be heard
to say that one whose possession he has violated was not
entitled to possess. Unless and until a superior title or
shown, existing legal possession is not only
justification is

presumptive but conclusive evidence of the right to possess.

Sometimes mere detention may be sufficient but on prin- :

ciple it seems more correct to say that physical control or

occupation is prima facie evidence that the owner is in

(*) Murray v. Hall (1849) 7 C. B. 12 Q. B. 837, 16 L. J. Q. B. 103,

441, 18 L. J. C. P. 161, and Bige- Co. Litt. 200.
low L. C. 343. (u) Job v. Potion (1875) 20 Eq.
(t) JFitkinson v. Haygarth (1846) 84, 44 L. J. Ch. 262.
 WRONGS TO POSSESSION AND PROPERTY.

exercise (on his own

behalf or on that of another) of an
actual legal possession, and then, if the contrary does not

appear, the incidents of legal possession follow. The

practical result is that an outstanding claim of a third
party (jus tertii, as it is called) cannot be set up to excuse
"
either trespass against a wrong-doer,
or conversion :

" "
possession is a title any possession is a legal possession
:

"
against a wrong-doer or, as the Roman maxim runs,:

"adversus extraneos vitiosa possessio prodesse solet"(#).

As regards real property, a possession commencing by
trespass can be defended against a stranger not only
by the first wrongful occupier, but by those claiming
through him in fact it is a good root of title as against
;

every one except the person really entitled (y) and ulti- ;

mately, by the operation of the Statutes of Limitation, it

may become so as against him also.

The authorities do not clearly decide, but seem to imply,

that it would make no difference if the de facto possession
violated the defendant were not only without title, but
by
obviously wrongful. But the rule is in aid of de facto pos-
session only. It will not help a claimant who has been in

possession but has been dispossessed in a lawful manner

and has not any right to possess (z) .

(x) Graham v. Peat (1801) 1 East worth (1825) 4 B. & C. 574, and
244, 246 ; Jeffries v. G. W. R. Co. other authorities collected in Pol-
(1856) 5 E. & B. 802, 25 L. J. Q. B. lock and Wright on Possession,
107; Bourne v. Fosbrooke (1865) 18 3135.
C. B. N. S. 515, 34 L. J. C. P. (y] Aslier v. Whitlock (1865) L.
164 ; extending the principle of E. 1 Q. B. 1, 35 L. J. Q. B. 17;
Armory v. Delamirie (1722) 1 Str. cp. Cutts v. Spring (1818) 15 Mass.
504 [505], and in 1 Sm. L. C. ; D. 135, and Bigelow L. G. 341 and ;

41. 3, de poss. 53, cf. Paulus Sent. Rosenberg v. Cook (1881) 8 Q. B.

Rec. v. 11 2: " sufficit ad proba- Div. 62, 51 L. J. Q. B. 170, and
tionemsiremcorporaliterteneam." see further Pollock and Wright,
And such use and enjoyment as op. cit. 95 99.
the nature of the subject-matter (z) Buckley v. Gross (1863) 3 B.
admits of is good evidence of pos- & S. 566, 32 L. J. Q. B. 129.
session. See Harper v. Charles-
 HULK IN FAVOUR OF POSSESSION. 'U7

This rule in favour of possessors is fundamental in both

civil and criminal jurisdiction. It is indifferent for most
practical purposes whether we deem the reason of the law
to he that the existing possession is prima facie evidence of
" the
ownership or of the right to possess presumption of
law is that the person who has possession has the pro-
"
perty (a) or, that for the sake of public peace and

security, and as "an extension of that protection which

the law throws around the person "(6), the existing
possession is protected, without regard to its origin, against
all men who cannot make
out a better right, or say (c)
that the law protects possession for the sake of true owners,
and to relieve them from the vexatious burden of continual
proof of title, but cannot do this effectually without pro-
tecting wrongful possessors also. Such considerations may
be guides and aids in the future development of the law,
but none of them will adequately explain how or why it

came to be what it is.

Again, as de facto possession is thus protected, so dejure Rights of

possession if by that term we may designate an imme- entitled to
when resume
diate right to possess separated from actual legal
possession was even under the old system of pleading sion.
invested with the benefit of strictly possessory remedies ;

(a) Lord Campbell C. J. in Jef- (b} Lord Denman C. J. in Rogers

fries v. G. W. E. Co. (1856) 5 E. & v. Spence (1844) 13 M. & W. at p.

B. at p. 806, 25 L. J. Q. B. 107; 581. This is precisely Savigny's
but this does not seem consistent theory, which however is not now
with the protection of even a mani- generally accepted by students of
wrongful possessor against a
f estly Roman law. In some respects it
new extraneous wrong-doer. In fits the common law better. Mr.
Roman law a thief has the inter- Justice Holmes in ' '
The Common
diets though not the actio furti, Law " takes a view ejusdem generis,
which requires a lawful interest in but distinct.
the plaintiff in the common law
; (c) "With Ihering (Grund des
it seems that he can maintain Besitzesschutzes, 2ded. 1869). Cp.
trespass. the same author's "Der Besitz-
wille," 1889.
318 WRONGS TO POSSESSION AND PROPERTY.

that an owner who had parted with possession, but was

is,

entitled to resume it at will, could sue in trespass for

a disturbance by a stranger. Such is the case of a land-
lord where the tenancy is at will (W), or of a bailor where
the bailment is revocable at will, or on a condition that
can be satisfied at will. In this way the same act

may be a trespass both against the actual possessor and

" He
against the person entitled to resume possession.
who has the property may have a writ of trespass, and he
who has the custody another writ of trespass " (e). " If I
let my land at will, and a stranger enters and digs in the

land, the tenant bring trespass for his loss, and I

may
may bring trespass for the loss and destruction of my

An exclusive right of appropriating things in which

property acquired only by capture is on the same footing
is

in respect of remedies as actual possession (/).

Eights of Derivative possession is equally protected, through what-

derivative
possessors, ever number of removes it may have to be traced from the
owner in possession, who (by modern lawyers at any rate)
is assumed as the normal root of title. It may happen
that a bailee delivers lawful possession to a third person, to
hold as under-bailee from himself, or else as immediate
bailee from the true owner :
nay more, he may re-deliver

possession to the bailor for a limited purpose, so that the

bailor has possession and is entitled to possess, not in his

original right, but in a subordinate right derived from his

own bailee (g). Such a right, while it exists, is as fully

Bro. Ab. Trespas, pi. 131

(d] ; (e) 48 Ed. III. 20, pi. 8.
19 Hen. VI. 45, pi. 94, -where it is (/) Holford 13
v. Baileij (1849)

pointed out that the trespasser's act Q. B. 426, 18 L. J. Q. B. 109,

is one, but the causes of action are Ex. Ch.
" diversis respectibus," as where a (g} Roberts v. Wyatt (1810) 2
servant is beaten and the master Taunt. 268.
has an action for loss of service.
 POSSESSION THROUGH TRESPASS. 310

protected as the primary right of the owner would have

been, or the secondary right of the bailee would be.

Troublesome questions were raised under the old law by Possession

the position of a person who had got possession of goods through

tresP asser
through delivery made by a mere trespasser or by an
-

originally lawful possessor acting in excess of his right.

One who receives from a trespasser, even with full know-
ledge, does not himself become a trespasser against the
true owner, as he has not violated an existing lawful pos-
session (h). The best proof that such is the law is the
existence of the offence of receiving stolen goods as distinct
from theft; if receiving from a trespasser made one a

goods with the intention

trespasser, the receipt of stolen
of depriving the true owner of them would have been

larceny at common law. Similarly where a bailee wrong-

fully delivers the goods over to a stranger; though the
bailee's mere assent will not prevent a wrongful taking by
the stranger from being a trespass (i) .

The old law of real property was even more favourable

to persons claiming through a disseisor ;
but it would be
useless to give details here. the present day the old At
forms of action are almost everywhere abolished and it ;

is quite certain that the possessor under a wrongful title,

even if he is himself acting in good faith, is by the

common law liable in some form to the true owner (k) and ,

in the case of goods must submit to recapture if the owner

can and will retake them (/). In the theoretically possible

(/>)
Wilson v. Barber (1833) 4 B. the time, for Brian dissented. The
& Ad. 614. action appears to have been on the

(i} 27 Hen. VII. 39, pi. 49 ; case, for spoiling the goods.
cp. 16 Hen. VII. 2, pi. 7 ;
Mennie (I) See Blades v. Higgs (1865)
v. lake (1856) 6 E. & B. 842, 25 11 H. L, C. 621, 34 L. J. C. P.
L. J. Q. B. 399. 286, where this was assumed with-
(k) 12 Edw. IV. 13, pi. 9; but out discussion, only the question of
this was probably an innovation at property being argued.
320 WRONGS TO POSSESSION AN1) PROPERTY.

case of a series of changes of possession by independent

trespasses, would seem that every successive wrong-doer
it

is a trespasser only as against his immediate predecessor,

whose de facto possession he disturbed: though as regards

land exceptions to this principle, the extent of which is not
freefrom doubt, were introduced by the doctrine of " entry
by relation" and the practice as to recovery of mesne
profits. But this too is now, as regards civil liability, a
matter of mere curiosity (m).

VIII. Wrongs to Easements, etc.

Violation Easements and other incorporeal rights in property,

" rather a "
poreal fringe to property than property itself as they

have been ingeniously called () are not capable in an

,

exact sense of being possessed. The enjoyment which

may in time ripen into not possession, and
an easement is

gives no possessory right before the due time is fulfilled :

" a man who has used

away ten years without title cannot
sue even a stranger for stopping it" (o). The only pos-
session that can come in question is the possession of the

dominant tenement the texture of legal rights and

itself,
" "
powers to which the fringe is incident. Nevertheless
disturbance of easements and the like, as completely

(m) The common law might con- law of trespass from being- logical,
ceivably have held that there was For the law of trespass to land as
a kind of privity of wrongful estate affected by relation, see Barnett v.
between an original trespasser and Guildford (\%5b) 11 Ex. 19, 24 L.
persons claiming through him, and
J. Ex. 280 Anderson v. Radcliffe
;

(1860) Ex. Oh., E. B. & E. 819,

-
thus applied the doctrine of con-
29 L. J. Q. B. 128, and Bigelow
tinuing trespass to such person^
and this would perhaps have been L. C. 361 370.
the more logical course. But the (n) Mr. Gibbons, Preface to the

natural dislike of the judges to fifth edition of Gale on Easements,

multiply ing capital felonies, operat- 1876.

ing on the intimate connexion be- (o) Holmes, The Common Law,
tween trespass and larceny, has in 240, 382.
several directions prevented the
 WRONGS TO EASEMENTS, ETC. 321

existing rights of use and enjoyment,

a wrong in the is

nature of trespass, and remediable by action without any

allegation or proof of specific damage (p) ;

the action was
on the case under the old forms of
pleading, since
trespass was technically impossible, though the act of dis-
turbance might happen to include a distinct trespass of
some kind, for which trespass would lie at the plaintiff's

option.
To consider what amounts to the disturbance of rights
in re aliena is in effect to consider the nature and extent of
the rights themselves (q) and this does not enter into our
,

plan, save so far as such matters come under the head of

Nuisance, to which a separate chapter is given.
Franchises and incorporeal rights of the like nature, as

patent and copyrights, present something more akin to

possession, for their essence is exclusiveness ;
and indeed
trespass was the proper remedy for the disturbance of a
"
strictly exclusive right. Trespass lies for breaking and
entering a several fishery, though no fish are taken." And
so it has always been held of a free warren (r). But the
same remark applies ;
in almost every disputed case the

(p) 1 Wins. Saund. 626 Harrop ;

the many and diverse opinions ex-
v. Hirst (1868) L. R. 4 Ex. 43, 46, pressed in Dalton v. Angus, or to
38 L. J. Ex. 1. define the franchise of a ferry or

(q) Thus Hopkins v. G. N. R. Co.

market. Again the later case of
(1877) 2 Q. B. Div. 224, 46 L. J. Attorney -General v. Homer (1885)
Q. B. 265, sets bounds to the ex- 11 App. Ca. 66, 55 L. J. Q. B.
elusive right conferred by the f ran- 193, interprets the grant of a
chise of a ferry, and Dalton v. market in slve juxta quodam loco, on
Angus (1881) 6 App. Ca. 740, 50 an information alleging encroach-
L. J. Q. B. 689, discusses with the ttoent on public ways by the lessee
utmost fulness the nature and extent of the market, and claiming an
of the right to lateral support for injunction.
buildings. Both decisions were (r) Holford v. Baiky, Ex. Ch.
given, in form, on a claim for (1848-9), 13 Q. B. 426, 18 L. J.
damages from alleged wrongful Q. B. 109. See the authorities
acts. Yet it is clear that a work collected in argument, S. G. in
on Torts is not the place to consider court below, 8 Q. B. at p. 1010.

P. Y
 WRONGS TO POSSESSION AND PROPERTY.

question is of defining the right itself, or the conditions of

the right (s) ;
and de facto enjoyment does not even pro-
visionally create any substantive right, but is material only
as an incident in the proof of title.

IX. Grounds of Justification and Excuse.

Licence. Acts of interference with land or goods may be justified

by the consent of the occupier or owner or they ; may be

justified or excused (sometimes excused rather than justi-
fied, as we shall see) by the authority of the law. That
consent which, without passing any interest in the property
to which it relates, merely prevents the acts for which

consent given from being wrongful, is called a licence.

is

There may be licences not affecting the use of property at

all, and on the other hand a licence may be so connected
with the transfer of property as to be in fact inseparable
from it.

"A dispensation or licence properly passeth no interest,

nor alters or transfers property in anything, but only
makes an action lawful, which without it had been
unlawful. As a licence to go beyond the seas, to hunt in
a man's park, to come into his house, are only actions
which without licence had been unlawful. But a licence
to hunt in a man's park and carry away the deer killed to
his own use, to cut down a tree in a man's ground, and to

carry it away the next day own use, are licences

after to his

as to the acts of hunting and cutting down the tree, but as

to the carrying away of the deer killed and tree cut down

they are grants. man to eat my meat, or

So to licence a
to fire the wood in my chimney to warm him by as to the ;

actions of eating, firing my wood and warming him, they

are licences : but it is consequent necessarily to those

(*) See last note.

 LICENCE AND INTEREST. 323

actions that my property be destroyed in the meat eaten,

and in the wood burnt. So as in some cases by consequent
and not directly, and as its effect, a dispensation or licence
"
may destroy and alter property (t).

G-enerally speaking, a licence is a mere voluntary sus- Revoca-

pension of the licensor's right to treat certain acts as licence:

111 ^1011
wrongful, comes to an end by any transfer of the property d^
with respect to which the licence is given (), and is re- coupled

voked by signifying to the licensee that it is no longer the interest,

licensor's will to allow the acts permitted by the licence. The

revocation of a licence is in itself no less effectual though it

may be a breach of contract. If the owner of land or a

building admits people thereto on payment, as spectators of
an entertainment or the like, it may be a breach of contract
to require a person who has duly paid his money and entered
to go out, but a person so required has no title to stay, and
if he persists in staying he is a trespasser. His only right /
is to sue on the contract (x) :
when, indeed, he may get an
injunction, and so be indirectly restored to the enjoyment
of the licence (y) . But if a licence is part of a transaction
whereby a lawful interest in some property, besides that
which is the immediate subject of the licence, is conferred
on the licensee, and the licence is necessary to his enjoy-
"
ment of that interest, the licence is said to be coupled
"
with an interest and cannot be revoked until
purpose its

is fulfilled nay more, where the grant obviously cannot

:

be enjoyed without an incidental licence, the law will

Vaughan C. J., Thomas

(t)
v. 593, 32 L. J. Ex. 27.

Sorrell, Vaughan 351. (y} See Frogley v. Earl of Love-

(u) Wallis v. Harrison (1838) 4 lace (1859) Joh. 333, where how-

M. & "W. 538, 8 L. J. Ex. 44. ever the agreement was treated as

(x) Wood v. Leadbitter (1845) 13 an agreement to execute a legal

M. & W. 838, 14 L. J. Ex. 161 ; grant.
Hyde v. Graham (1862) 1 H. & C.
Y2
324 WRONGS TO POSSESSION AND PROPERTY.

annex the necessary licence to the grant.

" A mere
licence is revocable ;
but that which is called a licence is

often something more than a licence ;

it often comprises
or connected with a grant, and then the party who has
is

given it cannot in general revoke it so as to defeat his

"
grant to which it was incident (s). Thus the sale of a
standing crop or of growing trees imports a licence to the
buyer to enter on the land so far and so often as reasonably

necessary for cutting and carrying off the crop or the trees,
and the licence cannot be revoked until the agreed time, if
any, or otherwise a reasonable time for that purpose has
elapsed (a) . The diversity to be noted between licence and
grant is of respectable antiquity. In 1460 the defendant
in an action of trespass set up a right of common the ;

plaintiff said an excessive number of beasts were put in ;

the defendant said this was by licence of the plaintiff to ;

which the plaintiff said the licence was revoked before the
trespass complained of ; Billing, then king's serjeant,
afterwards Chief Justice King's Bench under of the
Edward IY., argued that a licence may be revoked at will
even if expressed to be for a term, and this seems to have
so much impressed the Court that the defendant, rather
than take the risk of demurring, alleged a grant the :

reporter's note shows that he thought the point new and

interesting (I) . But a licensee who has entered or placed

goods on land under a revocable licence is entitled to have

notice of revocation and a reasonable time to quit or
remove his goods (c).

Executed the acts licensed be such as have permanent

lincvnriac!
licences.
Again,
w *
if -L

(z) Wood v. Leadbitter, 13 M. & (c)

Cornish v. Stubbs (1870) L. R.
W. 838, 844, 14 L. J. Ex. 161. 5 C. P. 334, 39 L. J. C. P. 202 ;

(a) See further 2 Wms. Saund. Mellor v. Watkins (1874) L. B. 9

363365, or Cooley on Torts 51. Q. B. 400.
(b) 39 Hen. VI. 7, pi. 12.
 LICENCE AND INTEREST.

results, as in altering the condition of land belonging to

the licensee in a manner which, but for the licence, would be
a nuisance to adjacent land of the licensor; there the
licensor cannot, by merely revoking the licence, cast upon
the licensee the burden of restoring the former state of

things. A
licence is in its nature revocable (d), but the

revocation will not make

a trespass to leave things as
it

the execution of the licence has made them. In this sense

it is said that
" a licence executed is not countermand-
able" (e). When a licence to do a particular thing once
for all has been executed, there nothing left to revoke.
is

Whether and how far the licensor can get rid of the

consequences if he mislikes them afterwards is another and

distinct inquiry, which can be dealt with only by consider-
ing what those consequences are. He may doubtless get
rid of them at his own
charges if he lawfully can but he ;

cannot call on the licensee to take any active steps unless

under some right expressly created or reserved.
For this purpose, therefore, there is a material difference

between " a licence to do acts which consist in repetition,

as to walk in a park, to use a carriage-way, to fish in the

waters of another, or the like," which may be counter-
manded without putting any worse position
the licensee in
than before the licence was granted, and " a licence to
construct a work which
attended with expense to the
is

party using the licence, so that, after the same is counter-

manded, the party to whom it was granted may sustain a
heavy loss" (/). And this rule is as binding on a licensor's
successors in title as on himself (g). But it is not applic-
able (in this country at any rate) to the extent of creating

(d) Wood v. Lcadbitter, note (z) guished in Wood v. Leadbitter, 13

last page. M. & "W. at p. 855.
(e) Winter v. Brockwell (1807) 8 (/) Liggins v. Inge (1831) 7
East 308. This class of cases is Bing. 682, 694 > per cur,
expressly recognized and distin- (g] Ibid,
326 WRONGS TO POSSESSION AND PROPERTY.

in or over land of the licensor an easement or other inte-

rest capable of being created only by deed (h) .

In those cases, however, the licensee is not necessarily

without remedy, for the facts may be such as to confer on
him an interest which can be made good by way of equit-
able estoppel (/).
This form of remedy has been exten-
sively applied in the United States to meet the hardship
caused by untimely revocation of parol licences to erect
dams, divert water-courses, and the like (k).

Expres- The grant or revocation of a licence may be either by

sion of
licensor's express words or by any act sufficiently signifying the
will.
licensor's will ;
if man
has leave and licence to pass
a

through a certain gate, the licence is as effectually revoked

by locking the gate as by a formal notice (/). In ttye
common intercourse of life between friends and neighbours
tacit licences are constantly given and acted on.

Distinc-
tion from
We shall have something to say in another connexion (m)
grant as of the rights or rather want of rights of a "bare
regards
strangers. licensee." Here we may add that a licence, being only a

personal right or rather a waiver of the licensor's rights

is not assignable, and confers no
right against any third
person. If a so-called licence does operate to confer an
exclusive right capable of being protected against a
(h) Woodv. Leadbitter, p. 323, (k) Cooley on Torts, 307310.
above Raffey v. Henderson (1851)
;
It seems to have sometimes been
17 Q. B. 574, 21 L. J. Q. B. 49; thought in America that the only
Hewitt Isham (1851) 7 Ex. 77,
v. difficulty arises from the Statute of
21 L. J. Ex. 35 (showing that Frauds, which is of course a mis-
conversely what purports to be a take : Wood v. Leadbitter, p. 323,
reservation in a parol demise may above. The limits of the doctrine

operate as a licence). are in this country fixed by Rams-

(i) See Plimmer v. Mayor of den v. Dyson (1866) L. E. 1 H. L.

Wellington, N. Z. (1884) 9 App. Ca. 129.

699, 53 L. J. P. C. 104, where the (1) See Hyde v. Graham, note (x)
two principles do not appear to be p. 323.
sufficiently distinguished. (m) Chap. XII. below, ad Jin.
 JUSTIFICATION BY LAAV. 327

stranger, it must be that there is more than a licence,

namely the grant of an interest or easement. And the

question of grant or licence may further depend on the
question whether the specified mode of use or enjoyment
is known to the law as a substantive
right or interest (n) :

a question that may be difficult. But it is submitted that

on principle the distinction is clear. I call at a friend's
house ;
a contractor who is doing some work on adjacent
land has encumbered my friend's drive with rubbish can ;

it be said that this is a wrong to me without special

damage? With
such damage, indeed, it is (o), but only

because a stranger cannot justify that which the occupier

himself could not have justified. The licence is material
only as showing that I was not a wrong-doer myself ; the
complaint is founded on actual and specific injury, not on
a quasi trespass. Our law of trespass is not so eminently
reasonable that one need be anxious to extend to licensees
the very large rights which it gives to owners and occupiers.

As to justification by authority of the law, this is of two Justifica-

, . , tion by
kinds :
l aw .

1. In favour of a trueowner against a wrongful pos-

sessor ;
under this head come re-entry on land and retaking
of goods.
2. In favour paramount right conferred by law
of a

against the rightful possessor which may be in the execu-;

tion of legal process, in the assertion or defence of private

right, or in some cases by reason of necessity.

A person entitled to the possession of lands or tenements Re-entry

herein of

(n) Compare Nuttall v. Bracewett the learned editors of Smith's

(1866) L. R. 2 Ex. 1, 36 L. J. Ex. 1, Leading Cases, in the notes to
with Ormerod v. Todmorden Mill Armory v. Delamirie.
Co. (1883) 11 Q. B. Div. 155, 52 (o) Corby v. Hill (1858) 4 C. B.
L. J. Q. B. 445 and see Gale on ;
N. S. 556, 27 L. J. C. P. 318. See

Easements, 5th ed. 315. Contra more in Chap. XII. below.

328 WRONGS TO POSSESSION AND PROPERTY.

forcible does no wrong to the person wrongfully in possession by

entering upon him and it is said that by the old common
;

law he might have entered by force. But forcible entry is

an offence under thestatute of 5 Eic. II. (A.D. 1381), which
"
provided that none from henceforth make any entry into
any lands and tenements, but in case where entry is given
by the law, and in such case not with strong hand nor
with multitude of people, but only in peaceable and easy

[the true reading of the Parliament Boll appears to be

'
lisible, aisee, & manner." This statute is still
peisible
']
"
in force here, and has been re-enacted in the several
American States, or recognized as a part of the common
"
law (p). The offence is equally committed whether the
person who enters by force is entitled to possession or not :

but opinions have differed as to the effect of the statute in

a court of civil jurisdiction. It has been held that a right-
ful owner who enters by force is not a trespasser, as regards
the entry itself, but is liable for any independent act done
by him in the course of his entry which is on the face of
it wrongful, and could be justified only by a lawful pos-
session (q) and, it should seem, for any other conse-
;

quential damage, within the general limit of natural and

probable consequence, distinguishable from the very act of
eviction. This is a rather subtle result, and is further
complicated by the rule of law which attaches legal pos-
session to physical control, acquired even for a very short
" definite and "
time, so it be appreciable (r) by the right-
ful owner. A., being entitled to immediate possession (say

(p) Cooley on Torts 323. For (q) Beddall v. Maitland (1881)

the remedial powers given to jus- 17 Ch. D.
174, 50 L. J. Ch. 401 ;

tices of the peace by later statutes, Edwick v. Hawkes (1881) 18 Ch. D.

see Lambarde's Eirenarcha, cap. 4 ; 199, 50 L. J. Ch. 577, and autho-
15 Bic. II. c. 2, is still nominally rities there discussed,
in force, (r) Lord Cairns in Lows v. Tel-

ford (1876) 1 App. Ca. at p. 421.

 FORCIBLE ENTRY. 329

as a mortgagee having the legal estate) effects an actual

entry by taking off a lock, without having given any notice
to quit to B. the precarious occupier; thus, "in a very

rough and uncourteous way," that peaceably but only

is,

just peaceably, he gets possession : once gotten, however,

his possession is both legal and rightful. If therefore
B. turns him out again by force, there is reasonable and

probable cause to indict B. for a forcible entry. So the

House of Lords has decidedNevertheless, according
(s).

to later judgments, delivered indeed in a court of first

instance, but one of them after consideration, and both

learned and careful, A. commits a trespass if, being in

possession by a forcible entry, he turns out B. (t). More-

over, the old authorities say that a forcible turning out of
the person in present possession is itself a forcible entry,
" He
though the actual ingress were without violence.
that entereth in a peaceable show
door being either
(as the

open or but closed with a latch only), and yet when he is

come in useth violence, and throweth out such as he findeth
in the place, he (I say) shall not be excused : because his

entry is not consummate by the only putting of his foot

over the threshold, but by the action and demeanour that he
"
offer eth when he is come into the house (u). And under
the old statutes and " if A. shall
practice, B. of disseise his

land, and B. do enter again, and put out A. with force, A.

shall be restored to his possession by the help of the justices
were utterly wrongful
of the peace, although his first entry :

and (notwithstanding the same restitution is made) yet B.

may well have an assize against A., or may enter peace-
"
ably upon him again (x).
But old authorities also distinctly say that no action is
(*)
Lows v. Telford (1876) 1 App. v. Hawkes, note (q) last page.
Ca. 414, 45 L. J. Ex. 613. (u) Lambarde's Eirenarcha, cap.

(t)
See the judgment of Fry J. 4, p. 142, ed. 1610.
in Beddall v. Maitland, and Edwick (x) Ib. 148.
330 WRONGS TO POSSESSION AND PROPERTY.

given by the statute to a tenant

who
put out with force is
"
by the person really entitled, because that that entry is
not any disseisin of him" (y). There is nothing in them
to countenance the notion of the personal expulsion being

a distinct wrong. The opinion of Parke and Alderson was

in accordance with this (2),
and the decision from which
they dissented is reconcileable with the old books only by
the ingenious distinction certainly not made by the
majority (a) of collateral wrongs from the forcible eviction

itself. The correct view seems to be that the possession of

a rightful owner gained by forcible entry is lawful as
between the parties, but he shall be punished for the
breach of the peace by losing it, besides making a fine to
the king. If the latest decisions are correct, the dispos-

might nevertheless have had a civil remedy

sessed intruder
in some form (by special action on the case, it would seem)
for incidental injuries to person or goods. This refine-
ment does not appear to have occurred to any of the old
pleaders.

Fresh re- A trespasser may any case be turned off land before
in

trespasser.
ne nas gained possession, and he does not gain possession
until there has been something like acquiescence in the

physical fact of his occupation on the part of the rightful

owner. His condition is quite different from that of a right-
ful owner out of possession, who can recover legal posses-
sion by any kind of effective interruption of the intruder's
actual and exclusive control. A
person who had been
dismissed from the office of schoolmaster and had given up

possession of a room occupied by him in virtue of his

(y} F. N. B. 248 H., Bro. Ab. & W. at pp. 442-3, they declared
Forcible Entry, 29. themselves unconverted.
(z)
Newton v. Harland (1840) 1
(a) Tindal C. J. said that pos-
M. & Gr. 644, 1 Scott N. R. 474 ;
session gained by forcible entry
in Harvey v. Brydges (1815) 14 M. was illegal: 1 M. & Gr. 658.
 RECAPTURE. 331

office,but had afterwards re-entered and occupied for

eleven days, was held not entitled to sue in trespass for an

expulsion the trustees at the end of that time.

by
"
A
mere trespasser cannot, by the very imme-
act of trespass,

diately and without acquiescence, give himself what the

law understands by possession against the person whom he
ejects, and drive
him to produce his title, if he can without
"
delay reinstate himself in his former possession (b) There .

must be not only occupation, but effective occupation, for

the acquisition of "In determining
possessory rights.
whether a sufficient possession was taken, much more
unequivocal acts must be proved when the person who is
said to have taken possession a mere wrong-doer than
is

when he has a right under his contract to take posses-

sion"^). And unless and until possession has been
acquired, the very continuance of the state of things
which constitutes the trespass is a new trespass at

every moment (d) . "We shall see that this has material

consequences as regards the determination of a cause of

excuse.

As regards goods which have been wrongfully taken, Eecaption

the taker is a trespasser all the time that his wrongful

possession continues, so much so that "the removal of

goods, wrongfully taken at first, from one place to another,
is held to be a several trespass at each place" (e), and a

supervening animus furandi at any moment of the continu-

ing trespassory possession will complete the offence of

(4) Browne v. Dawson

(1840) 12 Fletcher (1877) 5 Ch. Div. 809,
A. & E. 624, 629, 10 L. J. Q. B. 7. 812.
If a new trespasser entered in this (d} Holmes v. Wilson (1839) 10
state of things, could the trespasser A. &
E. 503; Sowyer v. Cook
n inchoate occupation sue him, or (1847) 4 C. B. 236, 16 L. J. C. P.
the last possessor? Possibly both. 177 and see 2 Wins. Saund. 496.
;

(c) Hellish L. J., Ex parte (e) 1 Wins. Saund. 20.

332 WRONGS TO POSSESSION AND PROPERTY.

larceny and make the trespasser a thief (/). Accordingly

the true owner may retake the goods if he can, even from
an innocent third person into whose hands they have
come and, as there is nothing in this case answering to
;

the statutes of forcible entry, he may use whatever force

is reasonably necessary for the recaption (g). He may
also enter on the first taker's land for the
purpose of recap-
ture if the taker has put the goods there (h) for they ;

came there by the occupier's own wrong (i) but he cannot ;

enter on a third person's land unless, it is said, the original

taking was felonious (A ), or perhaps, as it has been sug-

1

gested, after the goods have been claimed and the occupier
of the land has refused to deliver them (/). Possession is

much more easily changed in the case of goods than in

the case of land ;
a transitory and almost instantaneous
control has often, in criminal courts, been held to amount
to asportation. The difference may have been sharpened
by the rules of criminal justice, but in a general way it

lies rather in the nature of the facts than in any arbitrary

divergence of legal principles in dealing with immoveable
and moveable property.

Process of One of the most important heads of justification under a

law :
.

breaking paramount right the execution of legal process.

is The
mere taking and dealing with that which the law com-

(/) Reg. v. Riley (1857) Dears. (h) Patrick v. Colerick (1838) 3

149, 22 L. J. M. C. 48. M. & W. 483, explaining Blackst.
(g} Blades v. Higgs (1861) 10 Comm. iii. 4.
C. B. N. S. 713, but the reasons (i) Per Littleton J., 9 Edw. IV.

given at page 720 seem wrong. 35, pi. 10.

Maim or wounding is not justified Blackstone, I. c. ; Anthony
(k)
for this cause: but violence used v.Haney (1832) 8 Bing. 187, and
in defence of a wrongful posses- Bigelow L. C. 374.
sion is a new assault, and com- (I) Tindal C. J. in Anthony v.

mensurate resistance to it in per- Haney : but this seems doubtful,

sonal self-defence is justifiable.
 EXECUTION AND DISTRESS. 333

mands to be so taken and dealt with, be it the posses-

sion of land or goods, or both possession and property of
goods, is of course no wrong ;
and in particular if posses-
sion of a house cannot be delivered in obedience to a writ
without breaking the house open, broken it must be (m).
It is equally settled on the other hand that
" the sheriff

must at his peril seize the goods of the party against

whom the writ issues," and not any other goods which are

wrongly supposed to be his even unavoidable mistake is

;

no excuse (n). More special rules have been laid down as

to the extent to which private property which is not itself

the immediate object of the process may be invaded in

executing the command of the law. The broad distinction

is that outer doors may not be broken in execution of '*

process at the suit of a private person ;

but at the suit of
the Crown, or in execution of process for contempt of a
House of Parliament (0), or of a Superior Court, they
may, and must ;
and
the latter case, though the
this, in

contempt consist in disobedience to an order made in a

private suit (p). The authorities referred to will guide the
reader, if desired, to further details.

Constables, revenue officers, and other public servants,

and in some cases private persons, are authorized by divers
statutes to enter on lands and into houses for divers
purposes, with a view to the discovery or prevention of

(m) Semayne's Ca. (1604-5) 5 Co. (o) Burdett v. Abbot (1811) 14

Bep. 91b, and in 1 Sin. L. C. East 1,a classical case.

() Glasspoole v. Young (1829) 9 (p) And it is contempt in the
B. & C. 696 ;
Garland v. Carlisle sheriff himself not to execute such
(1837) 4 Cl. & F. 693. As to the process by breaking in if neces-

protection of subordinate officers sary Harvey v. Harvey (1884) 26

:

acting in good faith, see in the Ch. D. 644. Otherwise where

Chapter of General Exceptions, attachment is, or was, merely a
p. 104, above. formal incident in ordinary civil
process.
334 WRONGS TO POSSESSION AND PROPERTY.

crime, or of frauds upon the public revenue. We shall

not attempt to collect these provisions.

Distress. The right of distress, where it exists, justifies the taking

of goods from the true owner
seems that the distrainor,
: it

unlike a sheriff taking goods in execution, does not acquire

possession, the goods being "in the custody of the law" (g).
Most of the practical importance of the subject is in con-
nexion with the law of landlord and tenant, and we shall
not enter here on the learning of distress for rent and other

charges on land (r).

Damage "
Distress damage ^"^
feasant is the taking by an occupier of
land of chattels (commonly but not necessarily animals) (s)

found encumbering or doing damage on the land. The

right given by the law is therefore a right of self-pro-
tection against the continuance of a trespass already core-
menced. It must be a manifest trespass ;
distress damage
feasant not allowed against a party having any colour
is

of right, e. g., one commoner cannot distrain upon another

commoner for surcharging (t) And where a man is law-
.

fully driving cattle along a highway, and some of them

stray from it into ground not fenced off from the way, he
is entitled to a reasonable time for driving them out before
the occupier may distrain, and is excused for following
them on the land for that purpose. What is reasonable

(q) See West v. Nilbs (1847) 4 Ambergate $e. R. Co. v. Midland

C. B. 172, 17 L. J. C. P. 150. E. Co. (1853) 2 E. & B. 793 it was;

(r) As to distress in general, not actually straying, but had been

Blackst. Comm. book iii. c. 1. put on the Midland Company's
(s)
''All chattels whatever are linewithout the statutable ap-
distrainable damage feasant;" pro val of that Company.
Gilbert on Distress and Keplevin (t) Cape v. Scott (1874)
L. R. 9
(4th ed. 1823) 49. A
locomotive Q. B. 269, 43 L. J. Q. B. 65.
has been distrained damage feasant ;
 ENTRY OF DISTRAINOR. 335

time is a question of fact, to be determined with reference

to all the circumstances of the transaction (u). And where
cattle stray by reason of the defect of fences which the
occupier is bound to repair, there is no actionable trespass
and no right to distrain until the owner of the cattle has
notice (x) In one respect distress damage feasant is more
.

"
favoured than distress for rent. For a rent or service
the lord cannot distreine in the night, but in the day time :

and so it is of a rent charge. But for damage feasant one

may distreine in the night, otherwise it may be the beasts
"
will be gone before he can take them (y). But in other
"
respects damage feasant is the strictest distress that is, for
the thing distrained must be taken in the very act," and
held only as a pledge for its own individual trespass, and
other requirements observed (z).

The right of distress damage feasant does not exclude

J
he right to chase out trespassing beasts at one's election (a),
or to remove inanimate chattels and replace them on the
owner's land (b).

Entry to take a distress must be peaceable and without Entry of

breaking in it is ;
not lawful to open a window, though
not fastened, and enter thereby (c) Distrainors for rent .

have been largely holpen by statute, but the common law

has not forgotten its ancient strictness where express statu-

tory provision is wanting.

In connexion with distress the Acts for the prevention

(M) Goodwin v. Cheveley (1859) 4 (a) Tyrringhairfs (7<z.,4 Co. Rep.

H. & N. 631, 28 L. J. Ex. 298. 38b.

(x) 2 Wms. Saund. 671. () Sea v. Sheward (1839) 2 M.

(y) Co. Litt. 142tf. & W. 424.

(9) Vaspor v. Edwards (1701) 12 (c}

Nash v. Lucas (1867) L. E. 2
Mod. 660, where the incidents of Q. B. 590. Otherwise where the
damage feasant generally are ex- window is already partly open :

pounded. Crabtree v. Robinson (1885) 15 Q. B.

D. 312, 54 L. J. Q. B. 544.
336 WRONGS TO POSSESSION AND PROPERTY.

of cruelty to animals have introduced special justifications :

any one may enter a pound to supply necessary food and

water to animals impounded, and there is an eventual
power of sale, on certain conditions, to satisfy the cost
thereof (d).

Trespasses Finally there are cases in which entry on land without

justified
by neces- consent is excused by the necessity of self-preservation, or
the defence of the realm or an act of charity pre-
(<?),

serving the occupier from irremediable loss, or sometimes

by the public safety or convenience, as in putting out fires,

or as where a highway is impassable, and passing over the
land on either side is justified ;
but in this last mentioned
case perhaps rather a matter of positive common right
it is

than of excuse (/). Justifications of this kind are discussed

in a case of the early sixteenth century, where a parson
sued for trespass in carrying away his corn, and the defen-
dant justified on the ground that the corn had been set out
for tithes and was in danger of being spoilt, wherefore he
took it and carried it to the plaintiff's barn to save it : to
which the plaintiff demurred. Kingsmill J. said that a

taking without consent must be justified either by public

" "
necessity, or by reason of a condition in law neither ;

of which grounds is present here ;taking for the true

owner's benefit only ifis justifiable the danger be such that
he will lose his goods without remedy if they are not taken.
As examples of public necessity, he gives pulling down

(d} 12 & 13 Viet. c. 92, s. 6 ; 17 where there is only a limited dedi-

& 18 Viet. c. 60, s. 1 ; superseding cation of a way, subject to the
an earlier Act of William IV. to right of the owner of the soil to do
the same effect. See Fisher's acts, such as ploughing, which
Digest, DISTRESS, s. t.
' '
Pound and make it impassable or inconvenient
Poundage." at certain times: Arnold v. Hol-
(e) See p. 153, above. brook (1873) L. R. 8 Q. B. 96, 42

(/) The justification or right, L. J. Q. B. 80.

whichever it be, does not apply
 JUSTIFICATION BY NECESSITY. 337
*

some houses to save others (in case of fire, presumably) (<?),

and entering in war time tomake fortifications. " The

defendant's intention," said Rede C. J., "is material in
felony but not in trespass ;
and here it is not enough that
he acted for the good." stranger's beasts
plaintiff's A
might have spoilt the corn, but the plaintiff would have
had his remedy against their owner. " So where my
beasts are doing damage in another man's land, I may
not enter to drive them out and yet it would be a
;

good deed to drive them out so that they do no more

damage ;
but it is otherwise if another man drive my
horses into a stranger's land where they do damage, there
I may justify entry to drive them out, because their

wrong-doing took beginning in a stranger's wrong.

its

But here, because the party might have his remedy if the
corn were anywise destroyed, the taking was not lawful.
And not like the case where things are in danger of
it is

being lost by water, fire, or such like, for there the destruc-
tion is without remedy against any man. And so this
plea is not good"(/j). Fisher J. concurred. There is
little or nothing to be added to the statement of the law,

though it may be doubted whether it is now likely ever

to be strictly applied. Excuse of always more
this kind is

readily allowed if the possessor of the land has created

(ff) Cp.
Littleton J. in Y. B. 9 in Trinity term 21 Hen. VII. ib.
Ed. IV. 35 "If a man by negligence
;
86 b, pi. 19 he died in the follow-
;

suffer his house to burn, I who am ing vacation, and Rede was ap-
his neighbour may break down the pointed in his stead, ib. 85 b, where
house to avoid .the danger to me, for Mich. 22 H. VII. we should
for if I let the house stand, it may obviously read 21) cp. 37 Hen. VI.
;

burn so that I cannot quench the Ed. IV. 8, pi. 18, which
37, pi. 26; 6
fire afterwards." seems to extend the justification to
(h) 21 Hen. VII. 27, pi. 5 (but entry to retake goods which have
the case seems really to belong to come on another's land by inevit-
Hilary term of the next year, see able accident ;
see Story, Bail-
S. C., Keilw. 88 a; Frowike was ments, 83 a, note,
still Chief Justice of Common Pleas
P. '/.
338 WRONGS TO POSSESSION AND PROPERTY.

or contributed to the necessity by his own fault, as where

the grantor of a private right of way has obstructed it so
that the way cannot be used except by deviation on his

adjacent land (').

Foxhunt- At one time it was supposed that the law justified

ing not
privi- entering on land in fresh pursuit of a fox, because the
leged.
destruction of noxious animals is to be encouraged ;
but
this is not the law now. If it ever was, the reason for it

has long ceased to exist (k) Practically foxhunters do .

well enough (in this part of the United Kingdom) with

'

licence express or tacit.

Trespass There is a curious and rather subtle distinction between

ab initio.

justification by consent and justification or excuse under

authority of law. A
possessor by consent, or a licensee,
may commit a wrong by abusing his power, but he is not
a trespasser. If I lend York, and
you a horse to ride to

you ride to Carlisle, I shall not have (under the old forms
of pleading) a general action of trespass, but an action on
the case. So if a lessee for years holds over, he is not a
trespasser because his entry was authorized by the lessor (/).
But " when entry, authority, or licence is given to anyone
by the law, and he doth abuse it, he shall be a trespasser,
ab initio" that is, the authority or justification not only is

determined, but treated as if it had never existed. " The

law gives authority to enter into a common inn or
tavern (m) so to the lord to distrain to the owner of the
; ;

ground damage f easant to him in reversion to

to distrain ;

see if waste be done to the commoner to enter upon the

;

(i) Selbij v. Nettle/old (1873) 9 (I)

21 Ed. IV. 76i, pi. 9.
Ch. Ill, 43 L. J. Ch. 359. (m) This is in respect of the
() Paulv. Summerhayes (1878) 4 public character of the innkeeper's
Q. B. D. 9, 48 L. J. M. C. 33. employment.
 TRESPASS AJJ INITIU. 339

land to see his cattle ;

and such like .... But if he
who enters into the inn or tavern doth a trespass, as if he
carries away anything ;
or if the lord who distrains for
rent (w), or the owner for damage feasant, works or kills

the distress ;
or if he who enters to see waste break the
house or stays there all night or if the commoner cuts ;

down a tree in these and the like cases the law adjudges
;

that he entered for that purpose, and because the act which
demonstrates it a trespass, he shall be a trespasser ab
is

initio (o) . Or to state it less artificially, the effect of an

authority given by law without the owner's consent is to

protect the person exercising that authority from being
dealt with as a trespasser so long but so long only as
the authority is not abused. He
never doing a fully
is

lawful act : he is rather an excusable trespasser, and

becomes a trespasser without excuse if he exceeds his au-
" "
thority (p) : it shall be adjudged against the peace (q).
This doctrine has been applied in modern times to the lord
of a manor taking an estray (r), and to a sheriff remaining

in a house in possession of goods taken in execution for an

unreasonably long time (s). It is applicable only when
there has been some kind of active wrong- doing not when ;

there has been a mere refusal to do something one ought

to do as to pay for one's drink at an inn (), or deliver

() The liability of a distrainor Co. Rep. 146 a, b.

for rent justly due, in respect of (p) Cp. Pollock and Wright on
any subsequent irregularity, was Possession, 144, 201.
reduced to the real amount of (q) 11 Hen. IV. 75, pi. 16.

damage by 11 Geo. II. c. 19, s. 19: (r) Oxley v. Watts (1785) 1 T. R.

but this does not apply to a case 12.
where the distress was wholly un- (s) Ash v. Dawnay (1852) 8 Ex.
lawful: Attack v. Bramwell (1863) 237, 22 L. J. Ex. 59, sed qu.
3 B. & S. 520, 32 L. J. Q. B. 146. if according to the old authorities,
Distrainors for damage feasant are see Pollock and Wright on Posses-
still under the common law. sion, 82.

(o) The Six Carpenters' Case, 8 (f) Six Carpenters' Case, note (o).

72
340 WRONGS TO POSSESSION AND PROPERTY.
" If
up a upon a proper tender of the rent due (u).
distress

I distrain for rent, and afterwards the termor offers me

the rent and the arrears, and I withhold the distress from

him, yet he shall not have an action of trespass against

me, but detinue, because it was lawful at the beginning,
when I took the distress but if I kill them or work them
;

in my own plow, he shall have an action of trespass" (#).

But it is to be observed that retaining legal possession
been held equivalent
after the expiration of authority has

to a new taking, and therefore a positive act hence (it :

seems) the distinction between the liability of a sheriff,

who takes possession of the execution debtor's goods, and
" the
of a distrainor the latter only takes the goods into
;

"
custody of the law," and the goods being in the custody
of the law, the distrainor is under no legal obligation
actively to re- deliver them" (i/). Formerly these refine-

ments were important as determining the proper form of

action. Under the Judicature Acts they seem to be obso-
lete for most purposes of civil liability, though it is still

possible that a question of the measure of damages may

involve the point of trespass ab initio. Thus in the case
of the distrainor refusing to give up the goods, there was
no doubt that trover or detinue would lie (z) so that :

under the present practice there would be nothing to

discuss.

X. Remedies.

Taking or The only peculiar remedy available for this class of

S
goods. wrongs is distress damage feasant, which, though an im-
perfect remedy, is so far a remedy that it suspends the
right of action for the trespass. The distrainor " has an
(u) West v. Nibbs (1847) 4 C. B. (y] West v. Nibbs, 4 C. B. at p.
172, 17 L. J. 0. P. 150. 184, per Wilde C. J.
(x) Littleton in 33 Hen. VI. 27, (z) Wilde C. J. /. c., Littleton

pl. 12.
ttbi sup.
 REMEDIES FOR TRESVASS. 341

adequate satisfaction for his damage till he lose it without

default in himself ;" in which case he may still have his
action (a). It does not seem that the retaking of goods
taken by trespass extinguishes the true owner's right of
action, though it would of course affect the amount of

damages.

Actions for merely trifling trespasses were formerly dis- Costs

"where
couraged by statutes providing that when less than 40s. damages
nor
were recovered no more costs than damages should be
allowed except on the judge's certificate that the action
was brought to try a right, or that the trespass was " wil-
ful and malicious
yet a trespass after notice not to tres-
:"

pass on the plaintiff's lands was held to be "wilful and

malicious," and special communication of such notice to
the defendant was not required (b). But these and many
other statutes as to costs were superseded by the general
provisions of the Judicature Acts, and the rule that a

plaintiff recovering less than 10/. damages in an action

" founded on tort"
gets no costs in a Superior Court unless
by special certificate or order (c) and they are now ex- ;

pressly repealed (d).

The Court is therefore not bound by any fixed rule; but
it might possibly refer to the old practice for the purpose

of informing its discretion. It seems likely that the

common practice of putting up notice boards with these or

"
the like words :
Trespassers will be prosecuted according

Vaspor v. Edwards, 12 Mod.

(a)
Bacon (1860) 6 H. & N. 184, 188,
660, per Holt C. J. 30 L. J. Ex. 33, 36.
(b)
See Bou-yer v. Cook (1847) 4 (c) Courts Act, 1888,
County
C. B. 236, 16 L. J. C. P.
177; s. 116
(substituted for like pro-
Reynolds v. Edwards (1794) 6 T. R. vision of the repealed Act of 1867),

11, even where the defendant had and 45 & 46 Viet. c. 57, s. 4 see ;

intended and endeavoured to avoid "The Annual Practice," 1889-90,

trespassing but this was doubted
; p. 146.
by Pollock C. B. in Swinfen v. (d) 42 & 43 Viet. c. 59.
342 WRONGS TO POSSESSION AND PROPERTY.
" wooden
to law" words which are if strictly construed, a
falsehood" simple trespass not being punishable in
(e),

courts of criminal jurisdiction was originally intended to

secure the benefit of these same statutes in the matter of

costs. At be a question whether the

this day it may
Court would not be disposed to regard the threat of an
impossible criminal prosecution as a fraud upon the public,
and rather a cause for depriving the occupier of costs than
for awarding them (/). Several better and safer forms of
" no tres-
notice are available a common American one,
;

passing," isgood as any.

as
" " would
Nothing on earth," said Sir "Walter Scott,
induce me to put up boards threatening prosecution, or

cautioning one's fellow-creatures to beware of man-traps

and spring-guns. I hold that all such things are not only
in the highest degree offensive and hurtful to the feelings

of people whom it is every way important to conciliate,

but that they are also quite inefficient" (</). It must be

remembered that Scott never ceased to be a lawyer as well
as a man of letters. It was partly the legal knowledge

and tastes displayed in the Waverley Novels that identified

him in the eyes of the best critics as the author.

Injunc- Aninjunction can be granted to restrain a continuing

trespass, such as the laying and keeping of waterpipes
under a man's ground without either his consent or justifi-
cation by authority of law; and the plaintiff need not
prove substantial damage to entitle himself to this form of
relief (ti). On the other hand the right to an injunction
" Justice
(e)
F. W. Maitland, an offence,

and Police," p. 13. (g) Lockhart's Life of Scott, vii.

(/) At all events the threat of 317, ed. 1839, ex relatione Basil

spring- guns, still not quite un- Hall.

known, can do the occupier no (K) Goodson v. Richardson (1874)

9 Ch. 221, 43 L. J. Ch. 790.
good, for to set spring-guns is itself
 TRESPASS TO REVERSION. 343

does not extend beyond the old common-law right to sue

for damages a reversioner cannot have an injunction
:

without showing permanent injury to the reversion (i).

Of course it may be a substantial injury, though without
any direct damage, to do acts on another man's land for
one's own profit without his leave ;
for he is entitled to
make one pay for the right to do them, and his
power of
withholding leave is worth to him precisely what it is
worth to the other party to have it (k) .

Before the Common Law Procedure Acts an owner, Effect of

tenant, or reversioner who had suffered undoubted injury procedure,

might be defeated by bringing his action in the wrong

form, as where he brought trespass and failed to show that
he was in present possession at the time of the wrong
done (/). But such cases can hardly occur now.

(i)Cooper v. Crabtree (1882) 20 (k) See 9 Ch. 224, 20 Ch. Div.

Ch. Div. 589, 51 L. J. Ch. 585. 592.
In Allen v.Martin (1875) 20 Eq. (T)
Brown v. Notley (1848) 3 Ex.
462, the plaintiffs were in posses- 221, 18 L. J. Ex. 39 Pilgrim v.
;

sion of part of the land affected. Southampton, $c. It. Co. (1849) 8
C. B. 25, 18 L. J. C. P. 330.
344

CHAPTEE X.

NUISANCE.

Nuisance : NUISANCE is the wrong done to a man by unlawfully dis-

public or
private. turbing him in the enjoyment of his property or, in some
cases, in the exercise of a common right. The wrong is
in some respects analogous to trespass, and the two may

coincide, some kinds of nuisance being also continuing

trespasses. The scope of nuisance, however, is wider. A
nuisance may be public or private.
Public or common
nuisances affect the Queen's subjects
at large, or some considerable portion of them, such as the

inhabitants of a town and the person therein offending is

;

liable to criminal prosecution (a). A public nuisance does

not necessarily create a civil cause of action for any

person but it may do so under certain conditions.

;
A
private nuisance affects only one person or a determinate
number of persons, and the ground of civil proceedings
is

only. Generally it affects the control, use or enjoyment

of immoveable property ;
but this
not a necessary is

element according to the modern view of the law. Cer-

tainly the owner or master of a ship lying in harbour, for

example, might be entitled to complain of a nuisance

There was formerly a man-

(a)
Bench Division still has in theory
datory writ for the abatement of jurisdiction to grant such writs (as
public nuisances in cities and cor- distinct from the common judg-

porate towns and boroughs. See ment on an indictment) ;

see Rus-
the curious precedent in F. N. B. sell on Crimes, i. 440.
185 D. Apparently the Queen's
 PUBLIC NUISANCES. 345

created by an occupier on the wharf or shore which made

the ship uninhabitable.

We shall first consider in what cases a common nuisance Private

exposes the person answerable for it to civil as well as action for

criminal process, in other words, is actionable as well as P^ 110

nuisance.
indictable.
" A common nuisance is an unlawful act or omission to

discharge a legal duty, which act or omission endangers

the lives, safety, health, property, or comfort of the public,
or by which the public are obstructed in the exercise or

enjoyment of any right common to all her Majesty's

subjects" (&). Omission to repair a highway, or the placing

of obstructions in a highway or public navigable river, is a
familiar example.
In order to sustain an indictment for nuisance it is

enough to show that the exercise of a common right of the

Queen's subjects has been sensibly interfered with. It is
no answer to say that the state of things causing the
obstruction is some other way a public convenience.
in
Thus it is an indictable nuisance at common law to lay
down a tramway in a public street to the obstruction of the
ordinary traffic, although the people who use the cars and
save money and time by them may be greater in number
than those who are obstructed in their use of the highway
in the manner formerly accustomed (c).

It is also not material whether the obstruction interferes

with the actual exercise of the right as it is for the time

being exercised. The public are entitled, for example, to

(b) Criminal Cpde (Indictable (c) R. v. Train (1862) 2 B. & S.

Offences) Bill, 1879 (as amended in 640, 31 L. J. M. C. 169. The

Committee), s. 150 cp. Stephen,
; tramways now in operation in
Digest of Criminal Law, art. 176, many cities and towns have been
and illustrations thereto, and the made under statutory authority.
Indian Penal Code, s. 268.
 NUISANCE.

have the whole width of a public road kept free for passing
and repassing, and an obstruction is not the less a nuisance
because it is on a part of the highway not commonly used,
or otherwise leaves room enough for the ordinary amount
of traffic (d).
Further discussion and illustration of what amounts to
an indictable nuisance must be sought in works on the
criminal law.

Special A private action can be maintained in respect of a public

must be nuisance by a person who suffers thereby some particular
shown.
j ogg or ^ama g e beyond what is suffered by him in common
with all other persons affected by the nuisance. Inter-
ference with a common right is not of itself a cause of
action for the individual citizen. Particular damage (<?)

consequent on the interference is. If a man

digs a trench
across a highway, I cannot sue him simply because the
trench prevents me from passing along the highway as I
am entitled to do for that is an inconvenience inflicted
;

equally on all men who use the road. But if, while I am
lawfully passing along after dark, I fall into this trench
so that I break a limb, or goods which I am carrying are

spoiled, I shall have my action ; for this is a particular

damage to myself resulting from the common nuisance,

and distinct from the mere obstruction of the common
right of passage which constitutes that nuisance (/). If

(d) Turner v. Ring wood Highivay

law of defamation.
Board (1870) 9 Eq. 418. Compare (/) Y. B. 27 Hen. VIII. 27, pi.
the similar doctrine as to obstruc- 10. Action for stopping a high-
tion of lights, infra. "way,whereby it seems the plaintiff
" Particular and was deprived of the use of his own
(e) damage"
"special damage" are used in- private way abutting thereon (the
differently in the authorities the ;
statement rather obscure)
is per :

former seems preferable, for "spe- Fitzherbert, a man shall have his
cial damage," as we have seen, has action for a public nuisance if he
another technical meaning in the is more incommoded than others.
 PARTICULAR DAMAGE.

a trader is
conveying his goods in barges along a navigable
river, and by reason of the navigation being unlawfully
obstructed has to unload his merchandise and carry it

overland at an increased expense, this is a particular

damage which gives him a right of action (#). Though it

is a sort of consequence likely to ensue in many individual

cases, yet in every case it is a distinct and specific one.

Where this test fails, there can be no particular damage
in a legal sense. If the same man is at divers times

delayed by the same obstruction, and incurs expense in

removing it, this is not of itself sufficient particular
the is
" common to all who
damage ; damage, though real,

might wish, by removing the obstruction, to raise the

question of the right of the public to use the way" (h).

The diversion of traffic or custom from a man's door by an
obstruction of a highway, whereby his business is inter-

rupted, and his profits diminished, seems to be too remote

a damage to give him a right of private action (t), unless
indeed the obstruction is such as materially to impede the
immediate access to the plaintiff's place of business more
than other men's, and amounts to something like blocking

"If one make a ditch across the (i) Riclcet v. Metrop. R. Co. (1867)
high road, and I come riding along L. R. 2 H. L. at pp. 188, 199. See
the road at night, and I and my the comments of WillesJ. in Beckett
horse are thrown in the ditch so v. Midland R. Co. L. R. 3 C. P. at
that I have thereby great damage p. 100, where Wilkes v. Hungerford
and annoyance, I shall have my Market Co. (1835) 2 Bing.N. C.
action against him who made this 281 is treated as overruled by the
ditch, because I am more damaged remarks of Lord Chelmsford and
than any other man." Held that Lord Cranworth. Probably this
sufficient particular damage was would not be accepted in other
laid. jurisdictions where the common
(0) Rose v. Miles (1815) 4 M. & law is received. In Massachusetts,
S. 101, and in Bigelow L. C. 460. at least, Wilkes v. Hungerford
Winterbottom v. Lord Derby
(h) Market was adopted by the
Co.

(1867) L. R. 2 Ex. 316, 322, 36 Supreme Court in a very full and

!L. J, Ex. 194. careful judgment Stetson v. Faxon
:

(1837) 19 Pick. 147.

348 NUISANCE.

up his doorway Whether a given case falls under the

(k).
rule or the exception must depend on the facts of that
case : and what is the true principle, and what the extent of
the exception, open to some question (I). If horses and
is

waggons are kept standing for an unreasonable time in

the highway opposite a man's house, so that the access of
customers is obstructed, the house is darkened, and the
people in it are annoyed by bad smells, this damage is
" "
sufficiently particular, direct, and substantial to entitle
the occupier to maintain an action (m) .

Private The conception of private nuisance was formerly limited

nuisance,
what. to injuriesdone to a man's freehold by a neighbour's acts,
of which stopping or narrowing rights of way and flooding
land by the diversion of watercourses appear to have been
the chief species (n). In the modern authorities it includes
all injuries toan owner or occupier in the enjoyment of
the property of which he is in possession, without regard
to the quality of the tenure (0). Blackstone's phrase is

(k) Fritz Y. Hobson (1880) 14 Ch. J. Ex. 1. In this view it is diffi-

D. 542, 49 L. J. Ch. 321. cult to see that loss of custom is

(/)
In Fritz v. Hobson (last note) otherwise than a natural and prob-
Fry did not lay down any general
J. able consequence of the wrong.

proposition . How far the principle And cp. the case in 27 Hen. VIII.
of Lyon v. Fishmongers' Company cited above, p. 346. In Rickefs ca.

(1876) 1 App. Ca. 662, 46 L. J. Lord Westbury strongly dissented

Ch. 68, is really consistent with from the majority of the Lords
Eickct v. Metrop. E. Co. is a prob- present L. R. 2 H. L. at p. 200.
;

lem that can be finally solved only (m) Benjamin v. Storr (1874) L.
by the House of Lords itself. Ac- R. 9 C. P. 400, 43 L. J. C. P. 162.
cording to Lyon v. Fishmongers' Compare further, as to damage
Company it should seem that block- from unreasonable user of a high-
ing the access to a street is (if not way, Harris v. Mobbs (1878) 3 Ex.
justified) a violation of the distinct D. 268 Wilkins v. Day (1883) 12
;

private right of every occupier in Q. B. D. 110.

the street and such rights are not
:
(n) F. N. B. "Writ of Assize of
the less private and distinct because Nuisance," 183 I. sqq.

they may be many ;

see Harrop v. See per Jessel M. R. in Jones
(0}

Hirst (1868) L. R. 4 Ex. 43, 38 L. v. ChappeH (1875) 20 Eq. at p. 543.

 SPECIES OF PRIVATE NUISANCE. 349

"anything done to the hurt or annoyance of the land,

"
tenements or hereditaments of another (p) that is, so

done without any lawful ground of justification or excuse.

The ways in which this may happen are indefinite in
number, but fall for practical purposes into certain well
recognized classes.

Some acts are nuisances, according to the old authorities Kinds of

. nuisance,
and the course of procedure on which they were founded, affect-

which involve such direct interference with the rights of a

J

possessor as to be also trespasses, or hardjy distinguishable ship,

from trespasses.
" A man shall have an assize of nuisance
for building a house higher than his house, and so near

his, that the rain which falleth upon that house falleth

house
" And
upon the plaintiff's (q). it is stated to be a
nuisance if a tree growing on my land overhangs the

public road or my neighbour's land (r). In this class of

cases nuisance means nothing more than encroachment on

the legal powers and control of the public or of one's
neighbour. It is generally, though not necessarily (s), a
continuing trespass, for which however, in the days when
forms of action were strict and a mistake in seeking the
proper remedy was fatal, there was a greater variety and
choice of remedies than for ordinary trespasses. There-
fore it is in such a case needless to inquire, except for the
assessment of damages, whether there is anything like
nuisance in the popular sense. Still there is a real distinc-
tion between trespass and nuisance even when they are
combined the cause of action in trespass is interference,
:

with the right of a possessor in itself, while in nuisance it

(p) Comm. iii. 216. (r) Best J. in Earl of Lonsdak v.

(q) F. N. B. 184 D. ;
Penrud- Nelson (1823) 2 B. & C. 302, 311.
dock's ca. 5 Co. Rep. 100 b ; Fay v. (*) Fayv. Prentice, note (q), where
Prentice (1845) 1 C. B. 829, 14 L. J. the Court was astute to support
C. P. 298. the declaration after verdict.
350 NUISANCE.

is the incommodity which proved in fact to be the is

consequence, or is presumed by the law to be the natural

and necessary consequence, of such interference thus an :

overhanging roof or cornice is a nuisance to the land it

overhangs because of the necessary tendency to discharge

rain-water upon it (t) .

2. lura in Another kind of nuisance consists in obstructions of

rights of way and other rights over the property of others.

" The
parishioners may pull down a wall which is set up
to their nuisance in their way to the church" (u). In
modern times the most frequent and important examples
of this class are cases of interference with rights to light.
Here the right itself is a right not of dominion, but of
use and;
therefore no wrong is done (v) unless and until
there is a sensible interference with enjoyment, as we
its

shall see hereafter. But it need not be proved that the

interference causes any immediate harm or loss. It is

enough that a legal right of use and enjoyment is inter-

fered with by conduct which, if persisted in without

protest, would furnish evidence in derogation of the right

itself (x) .

3. Con- A third kind, and that which is most commonly spoken

and enjoy- of by the the continuous doing of some-
technical name, is
ment.
thing which interferes with another's health or comfort in
the occupation of his property, such as carrying on a noisy
or offensive trade.

Measureof What amount

nuisance.
annoyance or inconvenience will
of

amount to a nuisance in point of law cannot, by the nature

(t)
Baton's ca. 9 Go. Rep. 53 b. Board (1870) 9 Eq. 418.
(u) F. N. B. 185 B. (ae) Harrop
v. Hirst (1868) L. E.

(v) Otherwise as to public ways ;

4 Ex. 43, 38 L. J. Ex. 1.
see Turner v. Rinfficoorf Highway
 WHAT AMOUNTS TO NUISANCE. '351

of the question, be defined in precise terms (y). Attempts

have been made to set more or less arbitrary limits to the

jurisdiction of the Court, especially in cases of miscel-

laneous nuisance, as we may call them, -but they have
failed in every direction.
*

(a) It is not necessary to constitute a private nuisance Injury to

that the acts or state of things complained of should be n gg d not

noxious in the sense of being injurious to health. It is be shown -

enough that there is a material interference with the ordi-

nary comfort and convenience of life "the physical
comfort of human existence" by an ordinary and reason-
able standard (z) ;
there must be something more than
mere loss of amenity (#), but there need not be positive
hurt or disease.

(b) In ascertaining whether the property of the plain- Plaintiff

tiff is in fact injured, or his comfort or convenience in titled bT"

havm s
fact materially interfered with, by an alleged nuisance,
regard is had to the character of the neighbourhood and the nui-
the pre-existing circumstances (b) . But the fact that the

plaintiff was already exposed to some inconvenience of the

same kind will not of itself deprive him of his remedy.
Even if there was already a nuisance, that is not- a reason

why the defendant should set up an additional nuisance (c) .

The fact that other persons are wrong-doers in the like sort
"
is no excuse for a wrong-doer. If it is said This is but

(y) As to the construction of (a) Salvin v. North Brancepeth

"nuisance" in a covenant, which Coal Co. (1874) 9 Ch. 705, 44 L. J.
it seems need not be confined to Ch. 149 see judgment of James
;

tortious nuisance, see

Tod-Heatty L. J. at pp. 709, 710.
v. Benham (1888) 40 Ch. Div. 80, (b) Helen's Smelting Co. v.
St.

58 L. J. Ch. 83. Tipping (1865) 11 H. L. C. 642, 35

(z)
Walter v. Selfe, 4 De G. & L. J. Q. B. 66 Sturges v. Bridg-;

Sm. 315, 321, 322, 20 L. J. Ch. man (1879) 11 Ch. Div. at p. 865.
433 (Knight Bruce V.-C. 1851); (c) Walter v. Selfe, note (z).

Crump v. Lambert (1867) 3 Eq. 409.

352 NUISANCE.

one nuisance among many," the answer is that, if the

others were away, this one remaining would clearly be a

wrong ;
hut a man cannot he made a wrong-doer by the
lawful acts of third persons, and if it is not a wrong now,

a prescriptive right to continue it in all events might be

acquired under cover of the other nuisances therefore it ;

must be wrongful from the first (d) Neither does it make .

any difference that the very nuisance complained of existed

before the plaintiff became owner or occupier. It was at
one time held that if a man came to the nuisance, as was
said,he had no remedy (e) but this has long ceased to
;

be law as regards both the remedy by damages (/) and the

remedy by injunction (#). The defendant may in some
cases justify by prescription, or the plaintiff be barred of
the most effectual remedies by acquiescence. But these
are distinct and special grounds of defence, and if relied
on must be fully made out by appropriate proof.
Further, the wrong and the right of action begin only
when the nuisance begins. Therefore if Peter has for

many years carried on a noisy business on his own land,

and his neighbour John makes a new building on his own
adjoining land, in the occupation whereof he finds the

noise, vibration, or the like, caused by Peter's business to

be a nuisance, Peter cannot justify continuing his opera-
tions as against John by showing that before John's

building was occupied, John or his predecessors in title

made no complaint (h) .

(d) Crossley v. Lightowler (1867) 35 L. J. Q. B. 66.

2 Ch. 478, 36 L. J. Ch. 584. The (g) Tipping v. St. Helen's Smelt-
same point was (among others) t<7 Cfe. (1865) 1 Ch. 66, a suit for in-
decided many years earlier (1849) junction on the same facts ; Fleming
in Wood v. Waud, 3 Ex. 748, 18 v. Rislop (1886) 11 App. Ca. (So.),
L. J. Ex. 305. 686, 688, 697.
(e] Blackstone ii. 403. (h) Sturges v. Bridgman (1879)

(/) E.g. St. Helen's Smelting Co. 11 Ch. Div. 852, 48 L. J. Ch. 875.
v. Tipping (1865) 11 H. L. C. 642,
 WHAT AMOUNTS TO NUISANCE. 353

(c) Again a nuisance is not justified by showing that Innocent

the trade or occupation causing the annoyance is, apart 8arv ch a -
from that annoyance, an innocent or laudable one. " The
sive occ u -
building of a lime-kiln is good and profitable but if it be ; . .

built so near a house that when it burns the smoke thereof no answer.

enters into the house, so that none can dwell there, an

"
action lies for it (i).
"A tan-house is necessary, for all
men wear shoes ;
and nevertheless it may be pulled down
if it be erected to the nuisance of another. In like man-
ner of a glass-house and they ought to be erected in
;

places convenient for them"(/). So it is an actionable

nuisance to keep a pigstye so near my neighbour's house
as to make it unwholesome and unfit for habitation, though
the keeping of swine may be needful for the sustenance of
man (k) . Learned and charitable foundations are com-
mended in sundry places of our books but the fact that a ;

new building is being erected by a college for purposes of

good education and the advancement of learning will not

make it the less a

the sawing of stone by the
wrong if

builders drives a neighbouring inhabitant out of his house.

(d) Where
the nuisance complained of consists wholly Con-
or chiefly in damage to property, such damage must be Of piace

proved as is of appreciable magnitude and apparent to

persons of common intelligence not merely something ;

discoverable only by scientific tests (I) And acts in them- .

selves lawful and innoxious do not become a nuisance

merely because they make a neighbouring house or room

(i) Aldreffs ca. 9 Co. Rep. 59 a. 692, 701 (Jessel M. B.), 45 L. J.

(j) Jones v. Powell, Palm. 539, Ch. 414, followed and perhaps ex-
appro ved and explained by Ex. Ch. tended in Reinhardt v. Mentasti
in Bamford v. Turnley (1862) 3 B. (1889) 42 Ch. D. 685, 58 L. J. Ch.
& S. 66, 31 L. J. Q. B. 286. As to 787.
"convenient" see next paragraph. (1) Salvin y. North Brancepeth
(k) Aldred's ca.
(i) Cp. note Coal Co. (1874) 9 Ch. 705, 44 L. J.
Broder v. Saillard (1876) 2 Ch. D. Ch. 149.
P. A A
354 NUISANCE.

carrying on some particular industry, without in-

less fit for

terfering with the ordinary enjoyment of life (m) But where .

material damage in this sense is proved, or material discomfort

according to a sober and reasonable standard of comfort, it

is no answer to say that the offending work or manufacture

is carried on at a place in itself proper and convenient for

the purpose. A
right to do something that otherwise
would be a nuisance may be established by prescription,
but nothing less will serve. Or in other words a place is
not in the sense of the law convenient for me to burn
bricks in, or smelt copper, or carry on chemical works, if

that use of the place is convenient to myself but creates a

nuisance to my
neighbour (n) .

Modes of
(e) No particular combination of sources of annoyance
annoy-
ance, isnecessary to constitute a nuisance, nor are the possible
sources of annoyance exhaustively defined by any rule of
"
law. Smoke, unaccompanied with noise or noxious vapour,
noise alone, offensive vapours alone, although not injurious
to health, may severally constitute a nuisance to the owner
of adjoining or neighbouring property" (0). The persis-
tent ringing and tolling of large bells (p), the loud music,
shouting, and other noises attending the performances of a
circus (q), the collection of a crowd of disorderly people by

(m) RoUnson v. Kilvert (1889) 41 (1858) 4 C. B. N. S. 334, 27 L. J.

Ch. Div. 88, 58 L. J. Ch. 392. The C.P. 207; see Shafts Iron Co.v.Inglis
ordinary enjoyment of life, how- (1882) 7 App. Ca. Sc. at p. 528.
ever,seems to include the mainte- (o) Romilly M. R., Crump v.
nance of a due temperature in one's Lambert (1867) Eq. at p. 412.
3
wine cellar: Eeinhardt v. Mentasti, (p) Soltau v. De Held (1851) 2
note (#) above. Sim. N. S. 133. The bells be-
(ri)
Helen's Smelting Co. v.
St. longed to a Roman Catholic
Tipping (1865) 11 H. L. C. 642, 35 church; the judgment points out
L. J. Q. B. 66, BigelowL. C. 454 ; at (p. 160) that such a building is
Bamford v. Turnley (1862) Ex. Ch. not a church in the eye of the law,
3 B. & S. 66, 31 L. J. Q. B. 286 ;
and cannot claim the same privi-
Carey v. Ledbitter (1862-3) 13 C. B. leges as a parish church in respect
N. S. 470, 32L. J. C. P. 104. These of bell-ringing,
authorities overrule Hole v. Barlow (q) Inchbaldv. Harrington (1869)
 WHAT AMOUNTS TO NUISANCE. 355

a noisy entertainment of music and fireworks (r), to the

grave annoyance of dwellers in the neighbourhood, have

all been held to be nuisances and restrained by the autho-

rity of the Court. The use of a dwelling-house in a

street of dwelling-houses, in an ordinary and accustomed
manner, is not a nuisance though it may produce more or
less noise and inconvenience to a neighbour. But the
conversion of part of a house to an unusual purpose, or
the simple maintenance of an arrangement which offends

neighbours by noise or otherwise to an unusual and exces-

sive extent, may be an actionable nuisance. Many houses
have stables attached to them, but the man who turns the
whole ground floor of a London house into a stable, or
otherwise keeps a stable so near a neighbour's living
rooms that the inhabitants are disturbed all night (even
though he has done nothing beyond using the arrange-
ments of the house as he found them), does so at his own
risk (s).
" In
making out a case of nuisance of this character,

there are always two things to be considered, the right of

the plaintiff, and the right of the defendant. If the
houses adjoining each other are so built that from the
commencement of their existence it is manifest that each
adjoining inhabitant was intended to enjoy his own pro-
perty for the ordinary purposes for which it and all the
different parts of it were constructed, then so long as the
house is so used there is nothing that can be regarded

4 Ch. 388 : the circus was eighty- Eq. 24, 37 L. J. Ch. 33. It was
five yards from the plaintiff 's house, not decided whether the noise
and ' '

throughout the performance would alone have been a nuisance,

therewas music, including a trom- but "Wickens V.-C. strongly in-
bone and other wind instruments clined to think it would, see at
and a violoncello, and great noise, p. 34.
with shouting and cracking of (s)
Ball v. Ray (1873) 8 Ch. 467 ;

whips." Broder v. Saillard (1876) 2 Ch. D.

(r) Walker v. Brewster (1867) o 692, 45 L. J. Ch. 414.
A A 2
356 NUISANCE.

in law as a nuisance which the other party has a right to

prevent. But, on the other hand, if either party turns his
house, or any portion of it, to unusual purposes in such a
manner as to produce a substantial injury to his neighbour,

it appears to me that that is not according to principle or

authority a reasonable use of his own property ;

and his

entitled to pro-
neighbour, showing substantial injury, is
"
tection (t).

Injury (f ) Where a distinct private right is infringed, though

the plain- it be only a right enjoyed in common with other persons,
^ *s i mma^ er al
the plaintiff suffered no specific
i that

injury beyond those other persons, or no specific injury at

all. Thus any one commoner can sue a stranger who lets
his cattle depasture the common (u] ;
and any one of a
number of inhabitants entitled by local custom to a par-
ticular water supply can sue a neighbour who obstructs
that supply (v). It should seem from the ratio decidendi
1
of the House of Lords in Lyon v. Fishmongers Company (a?),
that the rights of access to a highway or a navigable river
incident to the occupation of tenements thereto adjacent
are private rights within the meaning of this rule (y] .

Injury (g) A cause of action for nuisance may be created by

independent acts of different persons, though the acts of
'
any one ^ ^ose P ersons would not amount to a nuisance.
of
rent per- "
sons.
Suppose one person leaves a wheelbarrow standing on a
way, that may cause no appreciable inconvenience, but if
a hundred do so, that may cause a serious inconvenience,
which a person entitled to the use of the way has a right

(t)
Lord Selborne L. C., 8 Ch. 4 Ex. 43, 38 L. J. Ex. 1.

at p. 469. (x) 1 App. Ca. 662.

(u) Notes to Mellor v. Spateman, (y]Fritz v. Hobson (1880) 14 Ch.
1 Wins. Saund. 626. D. 542, 49 L. J. Ch. 321, supra,
(v} Harrop v. Hirst (1868) L. R. p. 348.
 OBSTRUCTION OF LIGHTS. 357

to prevent ;
and it is any one person among
no defence to

the hundred to say that what he does causes of itself no

"
damage to the complainant (z).

A which has become prominent in

species of nuisance
Obstruc-

modern law, by reason of the increased closeness and lights,

height of buildings in towns, is the obstruction of light :

" "
often the phrase light and air is used, but the addition

is useless if not misleading, inasmuch as a specific right to

the access of air over a neighbour's land is not known to

the law ().
It seems proper (though at the risk of digressing from
the law of Torts into the law of Easements) to state here
the rules on this head as settled by the decisions of the
last twenty years or thereabouts.

The
right to light, to begin with, is not a natural right
Nature of

incident to the ownership of windows, but an easement to

which title must be shown by grant (b), express or implied,
or by prescription at common law, or under the Prescrip-
tion Act. The Prescription Act has not altered the
nature or extent of the right, but has only provided a new
mode of acquiring and claiming it (c) t without taking
away any mode which existed at common law (d). The

Thorpe v. Brumfitt (1873)

(z)
8 expressed by Littledale J. in Moore
Ch. 650, 656, per James L. J. v.Rawson (1824) 3 B. & C. at p.
London Brewery Co. 340 : see per Lord Selborne, Dalton
(a) City of
v. Tennant (1873) 9 Ch. at p. 221 ;
v. Angus (1881) 6 App. Ca. at p.
Webb v. Bird (1862) Ex. Ch. 13 794, and Lord Blackburn, ib. 823,
C. B. N. S. 841, 31 L. J. C. P. 335 ;
and the judgments and opinions in
v. Lefever (1879) 4 C. P. that case passim as to the peculiar
Bryant
Div. Cotton character of negative easements.
172, especially per
L. J. at p. 180, 48 L. J. Ch. 380 ; (c)
Kelk v. Pearson (1871) 6 Ch.
Harris \. De Pinna (1886) 33 Ch. at pp. 811, 813, cf. 9 Ch. 219.
Div. 238, per Chitty J. at p. 250, (d) Aynshy
v. Glover (1875) 10

and Cotton L. J. at p. 259. Ch. 283, 44 L. J. Ch. 523. Since

(*) Notwithstanding the doubts the Prescription Act, however, the

358 NUISANCE.

right can be claimed only in respect of a building ; the use

of an open piece of ground for a purpose requiring light
will not create an easement against an adjacent owner (e).

Any sub-
Assuming the right to be established, there is a wrongful
stantial
diminu- disturbance if the building in respect of which it exists is
tionis a
so far deprived of access of light as to render it materially
wrong.
less fit for comfortable or beneficial use or enjoyment in
its existing condition; if a dwelling-house, for ordinary
habitation ;
if a warehouse or shop, for the conduct of
business (/).
This does not mean that an obstruction
not wrongful is

if it leaves sufficient light for the conduct of the business

or occupation carried on in the dominant tenement for the

time being. question is not what is the least amount
The
of light the plaintiff can live or work with, but whether

the light, as his tenement was entitled to it and enjoyed

it,has been substantially diminished. Even if a subdued

or reflected light is better for the plaintiff's business than
a direct one, he is not the less entitled to regulate his

light for himself (g).

Supposed For some years it was supposedly analogy to a regulation

rule or
presump- in one of the Metropolitan Local Management Acts as to the
tion as to
angle of proportion between the height of new buildings and the
45.
formerly accustomed method of before Malins V.-C.) seems to have

claiming under the fiction of a lost been decided, on the whole, on the
grant appears to be obsolete. ground that there was not any
(e) See Potts v. Smith (1868) 6 material diminution. So far as it

Eq. 311, 318, 38 L. J. Ch. 58. suggests that there is a distinction

(/) Kelk v. Pearson (1871) 6 Ch. in law between ordinary and extra-

809, 811; City of London Brewery ordinary amounts of light, or that

Co. v. Tennant (1873) 9 Ch. at p. a plaintiff claiming what is called

216, 43 L. J. Ch. 457. an extraordinary amount ought to

(g} Yales v. Jack (1866)
1 Ch. show that the defendant had notice
295. Lanfranchi v. Mackenzie, 4 of the nature of his business, it

Eq. 421, 36 L. J. Ch. 518 (1867, cannot be accepted as authority.

 OBSTRUCTION OF LIGHTS. 359

width of streets (A), that a building did not constitute a

material obstruction in the eye of the law, or at least was

presumed not to be such, if its elevation subtended an

angle not exceeding 45 at the base of the light alleged to
be obstructed, or, as it was sometimes put, left 45 of

light to the plaintiff. But

has been conclusively de- it

clared by the Court of Appeal that there is no such rule (i).

Every case must be dealt with on its own facts. The

statutory regulation framed on considerations of general
is

public convenience, irrespective of private titles. Where an

individual is entitled to more light than the statute would
secure for him, there is no warrant in the statute, or in any-
thing that can be thence inferred, for depriving him of it.

An existing right to light is not lost by enlarging, re- Enlarge -

building, or altering (/), the windows for which access of alteration

c

light is claimed. So long as the ancient lights, or a sub-

stantial part thereof (k), remain substantially capable of
continuous enjoyment (/), so long the existing right con-

(h) 25 & 26 Viet. c. 102, s. 85. but not merely as incident to cer-
(i)
Parker v. First Avenue Hotel tain defined apertures in a certain
Co. (1883) 24 Ch. Div. 282; Eccle- place: Scott v. Pape (1886) 31 Ch.
Kino (1880)
siastical Commissioners v. Div. 554, 55 L. J. Ch. 426 National
;

14 Ch. Div. 213, 49 L. J. Ch. 529. Provincial Plate Glass Insurance Co.

(j) Tapling v. Jones (1865) 11 v. Prudential Assurance Co. (1877)

H. L. C. 290, 34 L. J. C. P. 342; 6 Ch. D. 757, 46 L. J. Ch. 871.

Aynsley v. Glover (1874-5) 18 Eq. But there must at all events be a

544, 43 L. J. Ch. 777, 10 Ch. 283, definite mode of access; Harris v.

44 L. J. Ch. 523 ;
Ecclesiastical De Pinna (1886) 33 Ch. Div. 238,
Commissioners v. Kino, 14 Ch. Div. 56 L. J. Ch. 344.
213 Greenwood v. Hornsey (1886)
; (I)
The alteration or rebuilding
33 Ch. D. 471, 55 L. J. Ch. 917. must be continuous enough to show
v. Pender (1884) 27 that the right is not abandoned
(k) Newson ;

Ch. Div. 43, 61. It is not neces- see Moore v. Rawson (1824) 3 B.
sary that the "structural identity" & C. 322. All the local circum-
of the old windows should be pre- stances will be considered ;
Bullers
served the right is to light as
;
v. Dickinson (1885) 29 Ch. D. 155,
measured by the ancient apertures, 51 L. J. Ch. 776.
360 NUISANCE.

tinues and is protected by the same remedies (m). And an

is not lost by interruption which is
existing right to light
not continuous in time and quantity, but temporary and
of fluctuating amount (n).
It makes no difference that the owner of a servient tene-

ment may, by the situation and arrangement of the build-

ings, be unable to prevent a right being acquired

in respect

of the new light otherwise than obstructing the old

by
light also (o). For there is no such thing as a specific
right to obstruct new lights. A man may build on his
own land, and he may build so as to darken any light
which is not ancient (as on the other hand it is undoubted
law that his neighbour may open lights overlooking his
land), but he must do it so as not to interfere with lights
in respect of which a right has been acquired.

"Nui-
Seine
market
TO
or
.

is
IIT
Disturbing the private franchise of a market or a ferry
p i \

commonly reckoned a species ot nuisance in our books (p).

i /

But seems rather to depend on accidents

this classification

of procedure than on any substantial resemblance between

interference with peculiar rights of this kind and such

injuries to the enjoyment of common rights of property as

we have been considering. The quasi-proprietary right to
a market or a ferry is of such a nature that the kind of
disturbance called " nuisance" in the old books is the only

way in which it can be violated at all. If disturbing a

market a nuisance, an infringement of copyright must
is

be a nuisance too, unless the term is to be conventionally

restricted to the violation of rights not depending on any

statute.

(*) Staiyht v. Burn (1869) 5 Ch. (o) Tapling v. Jones (1865) 11 H.

per Giffard L. J. at p. 167. L. C. 290, 34 L. J. C. P. 342.
(n) Presland v. Bingham (1889) (p) Blackst. Comm. iii. 218,
41 Ch. Div. 268.
 ABATEMENT. 361

The remedies for nuisance are threefold :

abatement, Remedies
damages, and injunction : of which the first is by the act 8an ce.
of theparty aggrieved, the others by process of law.
Damages are recoverable in all cases where nuisance is
proved, but in many cases are not an adequate remedy.
The more stringent remedy by injunction is available in
such cases, and often takes the place of abatement where
that would be too hazardous a proceeding.

The abatement of obstructions to highways, and the Abate-

like, is still of importance as a means of asserting public

rights. Private rights which tend to the benefit of the

public, or a considerable class of persons, such as rights of

common, have within recent times been successfully main-
tained in the same manner, though not without the addition
of judicial proceedings (q). It is decided that not only

walls, fences, and such like encroachments which obstruct

rights of common may be removed, but a house wrongfully

built on a common may be pulled down by a commoner
if it is not removed after notice (r) within a reasonable
time (*).

If another man's tree overhangs my land, I may lawfully

cut the overhanging branches (t) ; and in these cases where
the nuisance is in the nature of a trespass, and can be
abated without entering on another's land, it does not

(q) Smith v. Earl Brownlow (1869) The case of a man pulling down
9 Eq. 241 (the case of Berkhamstead buildings wrongfully erected on his
Common) ;
Williams on Rights of own land is different ib. ; Burling
;

Common, 135. v. Read (1850) 11 Q. B. 904, 19

(r) Pulling down the house with- L. J. Q. B. 291.

out notice while there are people in () Davies v. Williams (1851) 16
it isa trespass Perry v. Fitzhowe
:
Q. B. 546, 20 L.J. Q. B. 330.

(1845) 8 Q. B. 757, 15 L. J. Q. B. (t)

Norris v. Baker, 1 Rolle's
239 ; Jones v. Jones (1862) 1 H. & Rep. 393, per Croke ;
Lonsdale v.
C. 1, 31 L. J. Ex. 506; following Nelson, 2 B. & C. 311, per Best.

Perry y. Fitzhowe with some doubt.

 362 NUISANCE.

appear that the wrong-doer is entitled to notice. But if

the nuisance is on the wrong-doer's own tenement, he ought
first to be warned and required to abate it himself (u).

After notice and refusal, entry on the land to abate the

nuisance may be justified but it is a hazardous course at
;

best for a man thus to take the law into his own hands,
and in modern times it can seldom, if ever, be advisable.

Notice to In the case of abating nuisances to a right of common,

doTr^ notice is not strictly necessary unless the encroachment is
a dwelling-house in actual occupation but if there is a ;

question of right to be tried, the more reasonable course is

to give notice (x) . The same rule seems on principle to be

applicable to the obstruction of a right of way. As to the

" where a fence has been erected upon
extent of the right,
a common, inclosing and separating parts of that common
from the residue, and thereby interfering with the rights
of the commoners, the latter are not by law restrained in
the exercise of those rights to pulling down so much of
that fence as it may be necessary for them to remove for
the purpose of enabling their cattle to enter and feed upon
the residue of the common, but they are entitled to con-

sider the whole of that fence so erected upon the common

a nuisance, and to remove it accordingly" (y).

Nuisances It is doubtful whether there

any private right to abate
is
*
M -C

sion.
a nuisance consisting only in omission except where the

person aggrieved can do it without leaving his own tene-

(u) This has always been under- (y} Bay ley J. in Arlett \.. Ellis
stood to be the law, and seems to (1827) 7 B. & C. 346, 362, and
follow a fortiori from the doctrine of earlier authorities there cited. The

Perry v. Fitzhowe, n. (r], last page. first is 15 Hen. VII. 10, pi. 18.

(x) Per James

L. J., Commis- There a diversity where the fence
is

sioners of Sewers v. Glasse (1872) preventing access to the common is

7 Ch. at p. 464. not on the common itself: ibid.
 OMISSION. 363

ment in respect of which he suffers, and perhaps except in

cases of urgency such as to make the act necessary for the
immediate safety of life or property. " Nuisances by an
act of commission are committed in defiance of those whom

such nuisances injure, and the injured party may abate

them without notice to the person who committed them ;

but there is no decided case which sanctions the abatement

by an individual of nuisances from omission, except that of

cutting the branches of trees which overhang a public road,

or the private property of the person who cuts them. . . .

The and property may sometimes require

security of lives
so speedy a remedy as not to allow time to call on the

person on whose property the mischief has arisen to remedy

it. In such cases an individual would be justified in abat-

ing a nuisance from omission without notice. In all other

cases of such nuisances persons should not take the law
into their own
hands, but follow the advice of Lord Hale
"
and appeal to a court of justice (z).
In every case the party taking on himself to abate a
nuisance must avoid doing any unnecessary damage, as is
shown by the old form of pleading in justification. Thus
it lawful to remove a gate or barrier which obstructs a
is

right of way, but not to break or deface it beyond what is

necessary for the purpose of removing it. And where a
structure, say a dam or weir across a stream, is in part
lawful and in part unlawful, a party abating that which is
unlawful cannot justify interference with the rest. He
must distinguish them at his peril (a) . But this does not

mean always entitled to have a

that the wrong-doer is

nuisance abated in the manner most convenient to himself.

The convenience of innocent third persons or of the public

may also be in question. And the abater cannot justify

(2) Best J. in Earl of Lonsdale v. (a) Greenslade v. Halliday (1830)

Nelson (1823) 2 B. & C. at p. 311. 6 Bing. 379.
364 NUISA.NCE.

doing harm to innocent persons which he might have

avoided. In such a case, therefore, it may be necessary
and proper "to abate the nuisance in a manner more
"
onerous to the wrong-doer (b) Practically the remedy of .

abatement is now in use only as to rights of common (as

we have already hinted), rights of way, and sometimes
rights of water and even in those cases it ought never to
;

be used without good advisement.

Old writs.
Formerly there were processes of judicial abatement
available for freeholders under the writ Quod permittat
and the assize of nuisance (c)
. But these were cumbrous
and tedious remedies, and, like the other forms of real
action, were obsolete in practice long before they were
finally abolished (d) the remedies by action on the case at
9

law and by injunction in the Court of Chancery having

superseded them.

Damages. There is not much to be said of the remedy in damages

as applicable to this particular class of wrongs. Per-
sistence in a proved nuisance is stated to be a just cause
for exemplary damages (c)
giving There is a place .

for nominal damages in cases where the nuisance consists

merely in the obstruction of a right of legal enjoyment,

such as a right of common, which does not cause any

specific harm or loss to the plaintiff. At common law

damages could not be awarded for any injury received
from the continuance of a nuisance since the commence-
ment of the action for this was a new cause of action for
;

which damages might be separately recovered. But under

(b) Ex. Ch.

Roberts v. Rose (1865) (rf)
See note (A) to PenruddocW s
L. R. Ex. 82, 89.
1 ca. 5 Co. Rep. 100 b, in ed. Thomas
(c) F. N. B. 124 H., 183 I. ;
& Eraser, 1826.
1
Eaten s ca. 9 Co. Rep. 55 a, (e) Blackst. Comm. iii. 220.
Blackst. Comm. iii. 221.
 INJUNCTIONS. 365

the present procedure damages in respect of any con-

tinuing cause of action are assessed down to the date of

the assessment (/).

The most efficient and flexible remedy is that of in June- Injunc-

tion. Under this form the Court can prevent that from
being done which, if done, would cause a nuisance ;
it can
command the destruction of buildings (g) or the cessation
of works (h) which violate a neighbour's rights where ;

there a disputed question of right between the parties, it

is

can suspend the operations complained of until that ques-

tion is finally decided ;
and its orders may be either
absolute or conditional upon the fulfilment by either or
both of the parties of such undertakings as appear just in
the particular case ().
It is matter of common learning and practice that an
injunction is not, like damages, a remedy (as it is said)
ex debito iiistitiae. Whether it shall be granted or not in a

(/) Rules of the Supreme Court, had been done, e. p., in a case of
1883, Ord. XXXVI. r. 58 (no. 482). merely threatened injury Dreyfus
:

The power had already been

like v. Peruvian Guano Co. (1889) 43
exercised by the Court (see Fritz Ch. Div. 316, 333, 342.
v. Hobson (1880) 14 Ch. D. 542, (g) E.g. Kelk v. Pearson (1871) 6
557) when damages were given in Ch. 809.
addition to or in substitution for (A) The form of order does not
an injunction under Lord Cairns' go to prohibit the carrying on of
Act, 21 & 22 Viet. c. 27. This such and such operations abso-
Act is now repealed by the Statute lutely, but "so as to cause a
Law Revision and Civil Procedure nuisance to the plaintiff," or like
Act, 1883, 46 & 47 Viet. c. 49, but words: see Lingwood v. Stowmarket
the power conferred by it still Co. (1865) 1 Eq. 77, 336, and other
exists, and is applicable in such precedents in Seton, Pt. II. ch. 5,
actions as formerly would have s. 5; cp. Fleming v. Hislop
(1886) 11
been Chancery suits for an injunc- App. Ca. (Sc.) 686.
tion ;
and the result may be to () Thus where the complaint
dispense with statutory require- was of special damage or danger
ments as to notice of action, &c. from something alleged to be a
which would not have applied to such public nuisance, an interlocutory
suits Chapman v. Auckland Union
:
injunction has been granted on
(1889) 23 Q. B. Div. 294, 299, 300, the terms of the plaintiff bringing
68 L. J. Q. B. 504. The Act did an indictment Hepburn v. Lordan
;

not confer any power to give (1865) 2 H. &M. 345, 352, 34 L. J.

damages where no actionable wrong Ch. 293.
366 NUISANCE.

given case is in the judicial discretion of the Court, now

guided by principles which have become pretty well
settled. In order to obtain an injunction it must be
shown that the injury complained of as present or impend-
ing such as by reason of its gravity, or its permanent
is

character, or both, cannot be adequately compensated in

damages (/). The injury must be either irreparable or

continuous (k) . This remedy is therefore not appropriate
for damage which is in its nature temporary and inter-
mittent (7), or is accidental and occasional (m), or for an
interference with legal rights which is trifling in amount
and effect (n).

Apprehension of future mischief from something in itself

lawful and capable of being done without creating a nuisance
is no ground for an injunction (0). "There must, if no
actual damage is proved, be proof of imminent danger, and
there must also be proof that the apprehended damage will,
if it comes, be very substantial" (p). But where a nuisance
is shown to exist, all the probable consequences are taken
into account in determining whether the injury is serious
within the meaning of the rule on which the Court acts (q) .

(j) Cooke v. Forbes, 5 Eq. 166, (n) Gaunt v. Fynney (1872) 8

173 (Page Wood V.-C. 1867) ;
Ch. 8, 42 L. J. Ch. 122 (case of
A.-G. v. Sheffield <$c. Co. (next note nuisance from noise broke down,
but one). slight obstruction to ancient light
(k) Page Wood L. J., 4 Ch. at held no ground for injunction),
p. 81. (0) See the cases reviewed by
(1) A.-G. v. Sheffield Gas Con- Pearson J., Fletcher v.Bealey (1885)
sumers 1
Co. (1853) 3 D. M. a. 304, 28 Ch. D. 688, 54 L. J. Ch. 424.
22 L. J. Ch. 811
(breaking up (p) 28 Ch. D. at p. 698. A
'

streets to lay gas pipes), followed premature action of this kind may
by A.-G. v. Cambridge Consumers' be dismissed without prejudice to
Gas Co. (1868) 4 Ch. 71, 38 L. J. future proceedings in the event
Ch. 94. of actual nuisance or imminent
(in) Cooke v. Forbes, note (j) danger: ib. 704.
(escape offumes from works where (q) Goldsmid v. Tunbridge Wells
the precautions used were shown Improvement Commrs. (1866) 1 Ch.
to be as a rule sufficient). 349, 354, 35 L. J. Ch. 382.
 INJUNCTIONS. 367

But there must be substantial injury in view to begin with.

The following passages from a judgment of the late Lord
Justice James will be found instructive on this point :

"
In this case the Master of the Bolls has dismissed with
costs the bill of the plaintiff.
" The bill, in substance, sought by a mandatory injunc-
tion to prevent the defendants, who are a great colliery

company, from erecting or working any coke ovens or

other ovens to the nuisance of the plaintiff, the nuisance

alleged being from smoke and deleterious vapours.

" The Master of the Bolls
thought it right to lay down
what he conceived be the principle of law applicable to
to
a case of this kind, which principle he found expressed in
the case of St. Helen's Smelting Company v. Tipping (r),
in which Mr. Justice Mellor gave a very elaborate charge
to the jury, which was afterwards the subject of a very
elaborate discussion and consideration in the House of
Lords. The Master of the Bolls derived from that case this

principle ;
that in any case of this kind, where the plaintiff
was seeking to interfere with a great work carried on,
so far as the work itself is concerned, in the normal and

useful manner, the plaintiff must show substantial, or, as

'
the Master of the Bolls expressed damage. it,
'
visible
'
The term was very much quarrelled with before
'
visible

us, as not being accurate in point of law. It was stated

that the word used in the judgment of the Lord Chancellor
was '
sensible.' I do not think that there is much dif-
ference between the two expressions. When the Master of
the Bolls said that the damage must be visible, it appears
to me that he was quite right and as I understand the
;

proposition, it amounts to this, that, although when you

once establish the fact of actual substantial damage, it

is quite right and legitimate to have recourse to scientific

(r) 11 H. L. C. 642 (1865).

368 NUISANCE.

evidence as to the causes of that damage, still, if you are

obliged to start with scientific evidence, such as the micro-

scope of the naturalist, or the tests of the chemist, for the
purpose of establishing the damage itself, that evidence
will not suffice. The damage must be such as can be
shown by a plain witness to a plain common juryman.
" The
damage must also be substantial, and it must be, in
my view, actual ;
that is to say, the Court has, in dealing
with questions of this kind, no right to take into account
contingent, prospective or remote damage. I would illus-
trate this by analogy. The law does not take notice of the

imperceptible accretions to a river bank, or to the sea-shore,

although after the lapse of years they become perfectly
measurable and ascertainable and if in the course of
;

nature the thing itself is so imperceptible, so slow, and so

gradual as to require a great lapse of time before the results

are madepalpable to the ordinary senses of mankind, the
law disregards that kind of imperceptible operation. So,
if it were made out that every minute a millionth of a

grain of poison were absorbed by a tree, or a millionth of

a grain of dust deposited upon a tree, that would not afford
a ground for interfering, although after the lapse of a
million minutes the grains of poison or the grains of dust
could be easily detected.
" It would have been as it seems
wrong, to me, for this
Court in the reign of Henry YI. to have interfered with
the further use of sea coal in London, because it had
been ascertained to their satisfaction, or predicted to their

satisfaction, by the reign of Queen

that Victoria both
white and red roses would have ceased to bloom in
the Temple Gardens. If some picturesque haven opens
its arms to invite the commerce of the world, it is not
for this Court to forbid the embrace, although the fruit
of it should be the sights, and sounds, and smells of a
 WHAT IS SUBSTANTIAL DAMAGE. 369

common and shipbuilding town, which would drive

seaport
the Dryads and their masters from their ancient solitudes.
"
With respect to this particular property before us, I
observe that the defendants have established themselves on
a peninsula which extends far into the heart of the
ornamental and picturesque grounds of the plaintiff. If,
instead of erecting coke ovens at that spot, they had been

minded, as apparently some persons in the neighbourhood

on the other side have done, to import ironstone, and to
erect smelting furnaces, forges, and mills, and had filled

the whole of the peninsula with a mining and manufac-

turing village, with beershops, and pig-styes, and dog-

kennels, which would have utterly destroyed the beauty
and the amenity of the plaintiff's ground, this Court could

not, in judgment, have interfered.

my man to whom A
Providence has given an estate, under which there are
veins of coal worth perhaps hundreds or thousands of

pounds per acre, must take the gift with the consequences
and concomitants of the mineral wealth in which he is a

participant" (s).
It is not a necessary condition of obtaining an injunction
to show material specific damage. Continuous interference

with a legal right in a manner capable of producing

material damage is enough (t).

The difficulty or expense which the party liable for Difficulty

i . , . . or expense
a nuisance may nave to incur in removing it makes no O f abate-

difference to his liability, any more than a debtor's being

unable to pay makes default in payment the less a breach
of contract. And this principle applies not only to the

(s)
James L. J., Sakin v. North Waterworks Co. (1872) 8 Ch. 125,

JBrancepeth Coal Co. (1874) 9 Ch. 142, 42 L. J. Ch. 107; cp. Penning-
705, at p. 708. ton v. Brinsop Hall Coal Co. (1877)
(t)
Clowes v. Staffordshire Potteries 5 Ch. D. 769, 46 L. J. Ch. 773.

P. B B
370 NUISANCE.

light in but to the remedy by injunction. The

itself,

Court will use a discretion in granting reasonable time for

the execution of its orders, or extending that time after-
wards on cause shown. But where an injunction is the

only adequate remedy for the plaintiff, the trouble and

expense to which the defendant may be put in obeying the
order of the Court are in themselves no reason for with-

holding it (u).

Parties As to the entitled to sue for a nuisance as

person
J
:

entitled to
sue for
regards interference with the actual enjoyment of property,
only the tenant in possession can sue but the landlord or ;

reversioner can sue if the injury is of such a nature as

to affect his estate, say by permanent depreciation of the

property, or by setting up an adverse claim of right (#).

A lessee who has underlet cannot sue alone in respect of a

temporary nuisance, though he may properly sue as co-

plaintiff with the actual occupier (y). A. nuisance caused

by the improper use of a highway, such as keeping carts

and vans standing an unreasonable time, is not one for

which a reversioner can sue for he suffers no present
;

damage, and inasmuch as no length of time will justify a

public nuisance, he is in no danger of an adverse right
being established (s).
The reversioner cannot sue in respect of a nuisance in
itsnature temporary, such as noise and smoke, even if the
nuisance drives away his tenants (), or by reason thereof
he can get only a reduced rent on the renewal of the
tenancy (J). "Since, in order to give a reversioner an

(u) A.-G.v. Colney Hatch Lunatic a weekly tenant cannot sue.

Asylum (1868) 4 Ch. 146. (z) Jfott v. Shoolbred (1875) 20
(x) See Dicey on Parties, 340. Eq. 22, 44 L. J. Ch. 384.
(y} Jones v. Cliappell (1875) 20 (a) Simpson v. Savage (1856) 1
Eq. 539, 44 L. J. Ch. 658, which C. B. N. S. 347, 26 L. J. C. P. 50.
also discredits the supposition that (b) Mumford v. Oxford, $c. R. Co.
 PARTIES. 371

action of this kind, there must be some injury done to

the inheritance, involved of the injury

the necessity is
"
being of a permanent character (c). But as a matter
of pleading it is sufficient for the reversioner to allege a
state of things which is capable of being permanently
injurious (d).

As to liability: The person primarily liable for a Parties

nuisance he who actually creates it, whether on his own

is

land or not (e) The owner or occupier of land on which

.

a nuisance is created, though not by himself or by his

servants, may also be liable in certain conditions. If a
man lets a house or land with a nuisance on it, he as well
as the lessee is answerable for the continuance thereof (/),
caused by the omission of repairs which as between
if it is

himself and the tenant he is bound to do (/), but not

otherwise (g) . If the landlord has not agreed to repair, he
is not liable for defects of repair happening during the

tenancy, even if he habitually looks to the repairs in

(1856) 1 H. & N. 34, 25 L. J. Ex. below : and in that case a judg-

265. ment reversing the decision was

(c)
Per cur. 1 C. B. N. S. at p. actually prepared for delivery in
361. the Ex. Ch., but the plaintiff
Metropolitan Association v.
(d)
meanwhile agreed to a stct processus
Fetch (1858) 5 C. B. N. S. 504, 27 on the recommendation of the
L. J. C. P. 330. Court see 5 B. & S. 485, and the
:

(e)
See Thompson v. Gibson (1841) text of the undelivered judgment
7 M. & "W. 456. in 9 B. & S. 15. The decision of

(/) Todd v. Flight (1860) 9 C. B.

the Q. B. has however been held
N. S. 377, 30 L. J. C. P. 21. The to apply to a weekly tenancy, on
extension of this in Gandy v. Jubber the ground that its continuance
(1864) 5 B. & S. 78, 33 L. J. Q. B. from week to week is mere matter
151, by treating the landlord's of contract :
Sandford v. Clarke
passive continuance of a yearly (1888) 21 Q. B. D. 398, 57 L. J.
tenancy as equivalent to a re- Q.B.507.
letting, so as to make him liable (g] Pretty v. JBickmore (1873) L.

for a nuisance created since the R. 8 C. P. 401 Gwinnell v. Earner

;

original demise, is inconsistent (1875) L. R. 10 C. P. 658.

with the later authorities cited
BB2
372 NUISANCE.

fact (h) . It seems the better opinion that where the tenant
is bound knowledge, at the time of
to repair, the lessor's

letting, of the state of the property demised makes no

difference, and that only something amounting to an

authority to continue the nuisance will make him liable (i).

Again an occupier who by licence (not parting with the

possession) authorizes the doing on his land of something

whereby a nuisance is created is liable (k) . But a lessor is

not liable merely because he has demised to a tenant

something capable of being so used as to create a nuisance,

and the tenant has so used it (/). Nor is an owner not in
possession bound to take any active steps to remove a
nuisance which has been created on his land without his

authority and against his will (m) .

If one who has erected a nuisance on his land conveys

the land to a purchaser who continues the nuisance, the
vendor remains (), and the purchaser
liable is also liable
if on request he does not remove it (o).

(h) Nelson v. Liverpool Brewery C. B. 783, 16 L. J. C. P. 273.

Co. (1877) 2 C. P. D. 311, 46 L. J. (m) Saxby v. Manchester $ Shef-
C. P. 675 cp. Rich v. Basterfield
; field E. Co. (1869) L. R. 4 C. P.
(1847) 4 C. B. 783, 16 L. J. C. P. 198, 38 L. J. C. P. 153, where the
273. defendants had given the plaintiff
(i)Pretty v. Bickmore (1873) L. licence to abate the nuisance him-
R. 8 C. P. 401 Gwinnell v. Earner
; self as far as they were concerned.
(1875) L. R. 10 C. P. 658. () Mosewell v. Prior (1701) 12
(k) White v. Jameson (1874) 18 Mod. 635.
Eq. 303. (o) Penruddoctf s Ca. 5 Co. Rep.
(T) Rich v. Basterfield (1847) 4 101 a.
 373

CHAPTER XI.
i

NEGLIGENCE (0). *

I. The General Conception.

FOR acts and

their results (within the limits expressed by Omission
the term " natural and probable consequences," and dis-
cussed in a foregoing chapter, and subject to the grounds actlon as
of justification and excuse which have been discussed)
also liability.

the actor is, generally speaking, held answerable by law.

For mere omission a man generally speaking, held
is not,

answerable. Not that the consequences or the moral

gravity of an omission are necessarily less. One who re-

frains from stirring to help another may be, according to
the circumstances, a man of common though no more than
common good will and courage, a fool, a churl, a coward,
or little better than a murderer. But, unless he is under ^
some duty of action, his omission will not in any
specific
case be either an offence or a civil wrong. The law does
not and cannot undertake to make men render active ser-
vice to their neighbours at all times when a good or a
brave man would do so Some
already existing rela-
(b).

tion of duty must be established, which relation will be

(a) Those who seek fuller in- (b) See Note M. to the Indian
formation on the subject of this Penal Code as originally framed by
chapter may find it in Mr. Thomas the Commissioners. Yet attempts
Beven's exhaustive and scholarly of this kind have been made in one

monograph ("Principles of the -or two recent Continental proposals

Law of Negligence," London, for the improvement of criminal
1889). law.
374 NEGLIGENCE.

found in most cases, depend on a

though not in all, to

foregoing voluntary act of the party held liable. He was

not in the first instance bound to do anything at all but ;

by some independent motion of his own he has given hos-

tages, so to speak, to the law. Thus I am not compelled
to be a parent; but if I am one, I must maintain my
children. I am
not compelled to employ servants but if ;

I do, I must answer for their conduct in the course of their

employment. The widest rule of this kind is that which
is developed in the law of Negligence. One who enters
on the doing of anything attended with risk to the persons
or property of others is held answerable for the use of a
certainmeasure of caution to guard against that risk. To
name one of the commonest applications, " those who go
personally or bring property where they know that they
or it may come into collision with the persons or property

of others have by law a duty cast upon them to use reason-

able care and skill to avoid such a collision" (c). The
caution that is required is in proportion to the magnitude
and the apparent imminence of the risk : and we shall see

that for certain cases the policy of the law has been to lay
down exceptionally strict and definite rules. While some
acts and occupations are more obviously dangerous than
others, there is hardly any kind of human action that may

not, under some circumstances, be a source of some danger.

General Thus we arrive at the general rule that every one isbound
duty of
caution in to exercise due care towards his neighbours in his acts and

conduct, or rather omits or falls short of it at his peril ;

the peril, namely, of being liable to make good whatever

harm may be a proved consequence of the default (d).

(c) Lord Blackburn, 3 App. Ca. (d) Cp. per Brett M. R., Heaven
at p. 1206. v. Fender (1883) 11 Q. B. Div. at
p. 507.
 DUTY OF CAUTION. 375

In some cases this ground of liability may co-exist with Over-

a liability on contract towards the same person, and arising Con?ract

(as regards the breach) out of the same facts. Where a and tortt

man interferes gratuitously, he is bound to act in a reason-

able and prudent manner according to the circumstances

and opportunities of the case. And this duty is not

affected by the fact, if so it be, that
acting for reward, he is

in other words, under a contract, and may be liable on the

contract (e)
. The two duties are distinct, except so far as
the same party cannot be compensated twice over for the
same facts, once for the breach of contract and again for the
wrong. Historically the liability in tort is older; and
indeed it was by a special development of this view that
the action of assumpsit, afterwards the common mode of

enforcing simple contracts, was brought into use(/). "If

a smith prick my horse with a nail, &c., I shall have my
action upon. the case against him, without any warranty
ly the smith to do it well. . . . .For it is the duty of

every artificer to exercise his art rightly and truly as he

ought "(g). This overlapping of the regions of Contract
and Tort gives rise to troublesome questions which we are
not yet ready to discuss. They are dealt with in the con-
cluding chapter of this book. Meanwhile we shall have to
use for authority and illustration many cases where there

This appears to be the sub-

(e)
as the judgment of Brett M. R.
stance of the rule intended to be purported to exhibit those rules as
laid down by Brett M. R. in a simple deduction from the general
Heaven v. fender (1883) 11 Q. B. rule as to negligence, it is sub-
D. at pp. 507-510; his judgment mitted that the dissent of the Lords
was however understood by the Justices was well founded. And
other members of the Court (Cot- see Beven on Negligence, 63.
ton and Bowen L. JJ.) as formu- (/) Cp. the present writer's

lating some wider rule to which "Principles of Contract," p. 141,

they could not assent. The case 5th ed., and Prof. Ames's articles,
comes under the special rules
itself "The History of Assumpsit," in
defining the duty of occupiers (see Harv. Law Rev. ii. 1, 53.
Chap. XII. below). And, so far (g] F. N. B. 94 D.
376 NEGLIGENCE.

was a co-existing duty ex contractu, or even where the duty

actually enforced was of that kind. For the obligation of
many contracts is, by usage and the nature of the case,

not to perform something absolutely, but to use all reason-

able skill and care to perform it.
Putting aside the re-
sponsibilities of common carriers and innkeepers, which
are peculiar, we have this state of things in most agree-

ments for custody or conveyance, a railway company's

contract with a passenger for one. In such cases a total
refusal or failure to perform the contract is rare. The
kind of breach commonly complained of is want of due
care in the course of performance. Now the same facts

may admit of being also regarded as a wrong apart from

the contract, or they may not. But in either case the

questions, what was the measure of due care as between

the defendant and the plaintiff, and whether such care
was used, have to be dealt with on the same principles.
In other words, negligence in performing a contract and
negligence independent of contract create liability in
different ways but the authorities that determine for us
:

what is meant by negligence are in the main applicable to

both.
V,
Definition The general rulewas thus stated by Baron Alderson :

gence. & "^Negligence is the omission to do something which a

reasonable man, guided upon those considerations which
.ordinarily regulate the conduct of human affairs^ would
.UJ

d
do, or doing something which a prudent and reasonable
"
man would not do (h) :
provided, of course, that the

party whose conduct is in question is

already in a situation
that brings him under the duty of taking care. /This, it

(h) Blyth v. Birmingham

Water- Brett J. in Smith v. L. $ S. W. It.
works Co. (1856) 11 Ex. at p. 784, Co. (1870) L. B. 5 C. P. at p. 102.

25 L. J. Ex. at p. 213 adopted by

;
 ALDERSON'S DEFINITION. 377

will be observed, says nothing of the party's state of mind,

and rightly. Jurisprudence is not psychology, and law
disregards many psychological distinctions not because

lawyers are ignorant of their existence, but because for

legal purposes it is impracticable or useless to regard them.
Even if the terms were used by lawyers in a peculiar

sense, there would be no need for apology ;

but the legal
sense is the natural one. the contrary of
Negligence is

diligence, and no one describes diligence as a state of

mind. The question for judges and juries is not what a
man was thinking or not thinking about, expecting or not
expecting, but whether his behaviour was or was not such
as we demand of a prudent man under the given circum-
stances. Facts which were known to him, or by the use
of appropriate diligence would have been known to a

prudent man in his place, come into account as part of the

circumstances. Even as to these the
point of actual
knowledge is a subordinate one as regards the theoretical
foundation of liability. The question is not so much
what a man of whom
was required actually
diligence
thought of or perceived, as what would have been per-
ceived by a man of ordinary sense who did think (i). A
man's responsibility may be increased by his happening
to be in possession of some material information beyond
what he might be expected to have. But this is a rare

case.

As
matter of evidence and practice, proof of actual

knowledge may be of great importance. If danger of a

well understood kind has in fact been expressly brought
to the defendant's notice as the result of his conduct, and
the express warning has been disregarded or rejected (j) 9

(i) Brett M. R,., 11 Q. B. Div. the defendant, after being warned

508. that his haystack was likely to
(.;')
As Vaughan v. Menlove
in take fire, said he would chance it
(1837) 3 Bing. N. C. 468, where (pp. 471, 477).
378 NEGLIGENCE.

it is both easier and more convincing to prove this than to

show in a general way what a prudent man in the defen-
dant's place ought to have known. In an extreme case
reckless omission to use care, after notice of the risk, may
be held, as matter of fact, to prove a mischievous inten-
tion or, in the terms of Roman law, culpa lata may be
:

equivalent to dolus. For purposes of civil liability it is

seldom (if ever) necessary to decide this point.

"We have assumed that the standard of duty is not -the

standard r__
. - . .

of duty
foresight and caution which this or that particular man is
.does not
with capable_jfTbut the foresight and laution of a prudent,
man-^ie_average prudent-man, or, os-our books rather
o_sayf a reasonable man
ntnnding in this or-4hft^
man's shoes_(A'). This idea so pervades the mass of our
authorities that it can be appreciated only by some
familiarity with them. In the year 1837 it was formally
and decisively enounced by the Court of Common Pleas (/).
The action was against an occupier who had built a rick
of hay on the verge of his own land, in such a state that
there was evident danger of fire, and left it there after

repeated warning. The hayrick did heat, broke into

flame, and set fire to buildings which in turn communi-
cated the fire to the plaintiff's cottages, and the cottages
were destroyed. At the trial the jury were directed "that
the question for them to consider was whether the fire had
been occasioned by gross negligence on the part of the
" that he was bound to
defendant," and proceed with such
reasonable caution as a prudent man would have exercised
under such circumstances." rule for a new trial was A
obtained " on the ground that the jury should have been

(k) Compare the Aristotelian duty.

use of o (ppovi/A.os or o aisov^auos in (I) Vatighan v. Menlove (1837)
determining the standard of moral 3 Bing. N. C. 468.
 THE STANDARD OF PRUDENCE. 379

directed to consider, not whether the defendant had been

guilty of gross negligence with reference to the standard
of ordinary prudence, a standard too uncertain to afford

any but whether he had acted bona fide to the

criterion ;

best of his judgment if he had, he ought not to be

;

responsible for the misfortune of not possessing the

highest (m) order of intelligence." The Court unani-

mously declined to accede to this view. They declared
that the care of a prudent man was the accustomed and
the proper measure of duty. It had always been so laid
'

down, and the alleged uncertainty of the rule had been

found no obstacle to its by juries. It is not
application
for the Court to define a prudent man, but for the jury to
" Instead
say whether the defendant behaved like one.
of saying that the liability for negligence should be co-
extensive with the judgment of each individual which
would be as variable as the length of the foot of each

individual we ought rather to adhere to the rule which

requires in all cases a regard to caution such as a man of

"
ordinary prudence would observe (). Quite lately the
same principle has been enforced in the Supreme Court of
" If a
Massachusetts. man's conduct is such as would be
reckless in a man of
ordinary pm^min^ if. iffjrftgVlftss
in him. Unless he can bring himself within some broadly
defined exception to general, rules, the law deliberately
leaves his personal equationoridiosyncracies out of account,
and peremptorily assumes that he has aajnuc^napacity f.n

judge_and to foresee consequences as a man of ordinary

"
prudence would have in the same situation (0).

(m) This misrepresents the rule at p. 475.

of law not the highest intelli-
:
(0) Commonwealth v. Pierce (1884)
hnt intftllig-e^^ nflf.
t^lnw 138 Mass. 165, 52 Am. Rep. 264,
gence,
the average pruden^ man* a. being per Holmes J. See too per Bayley
required. J. in Jones v. Bird ,(1822) 5 B. & A.

() Tindal C. J., 3 Bing. N. C. at pp. 845-6,

380 NEGLIGENCE.

Diligence It will be remembered that the general duty of diligence

includes
compe-
includes the particular duty of competence in cases where
tence.
the matter taken in hand is of a sort requiring more than
the knowledge or ability which any prudent man may be

expected to have. The test is whether the defendant has

done "all that any skilful person could reasonably be
"
required to do in such a case (p). This is not an excep-
tion or extension, but a necessary application of the general
rule. For a reasonable man will know the bounds of his

competence, and will not intermeddle (save in extraordinary

emergency) where he is not competent (q) .

II. Evidence of Negligence.

Due care and caution, as we have

the diligence seen, is

./question of a reasonable man, and includes reasonable competence j^

Of
and in cases where special competence is needful to ensure
.law. and caution have been used in
safety. Whether due care

a given case is, by the nature of things, a question of fact.

But it is not a pure question of fact in the sense of being
open as a matter of course and without limit. Not every
one who suffers harm which he thinks can be set down to

his neighbour's default is thereby entitled to the chance of

a jury giving him damages. The field of inquiry has

limits defined, or capable of definition, by legal principle
and judicial discussion.
Before the Court or the

proceed tr> pass nprm the fnH-ffi pH^f^l by

Court must bo satisfied that those facts, if proved, are Jn_
law capable of supporting the inference that the defendant
has failed in what the law requiresat his hands. ,In the
current forensic phrase, there must be evidence of negli-

gence. The peculiar relation of the judge to the jury in

our common law system has given occasion for frequent

(p) Bayley J., 5 B. & A. at p. (q) See p. 25, above.

846.
 EVIDENCE : COURT AND JURY. 381

and minute discussion on the propriety of leaving or not

a
leaving for the decision of the jury the facts alleged by
plaintiff as proof of negligence. Such discussions are not
carried on in the manner best fitted to promote the clear
statement of principles; it is difficult to sum up their

results, and not always easy to reconcile them.

The tendency of modern rulings of Courts of Appeal has
been, if not to enlarge the province of the jury, to arrest
the process of curtailing it. Some distinct boundaries,

however, are established.

Where there is no contract between the parties, the Burden of

burden of proof is on him who complains of negligence.

3jje must not only show
that he suffered harm in such a
manner that might be caused by the defendant's negli-
it

gence ;
he must show that it was so caused, and to do this
he must prove facts inconsistent with due diligence on the
"
part of the defendant. Where
the evidence given is

equally consistent with the existence or non-existence of

negligence, it is not competent to the judge to leave the
"
matter to the jury (r).

Nothing can be inferred, for example, from the bare

fact that a foot-passenger is knocked down by a
carriage in
a place where they have an equal right to be, or by a train
at a level crossing Those who pass and repass in fre-
(*)
.

quented roads are bound to use due care, be it on foot or on

horseback, or with carriages and before one can complain
:

of another, he must show wherein care was wanting.

"
When the balance is even as to which party is in fault,
the one who relies upon the negligence of the other is

(r) Williams J.
in Hammack v. C. P. 333 ;
Wakelin v. Z. 8. W.
White (1862) 11 C. B. N. S. 588, R. Co. (1886) 12 App. Ca. 41.
31 L. J. C. P. 129 ;
Cotton v. Wood (s) Wakelin v. L. $ S. W. R. Co.,
(1860) 8 C. B. N. S. 568, 29 L. J. last note.
382 NEGLIGENCE.

"
bound to turn the scale (t). It cannot be assumed, in
the absence of explanation, that a train ran over a man
all

more than the man ran against the train (u) If the car- .

riage was being driven furiously, or on the wrong side of

the road, that is another matter. But the addition of an

ambiguous circumstance will not do.

Thus in Cotton v. Wood (v) the plaintiff's wife, having

safely crossed in front ofan omnibus, was startled by some

other carriage, and ran back; the driver had seen her pass,
and then turned round to speak to the conductor, so that
he did not see her return in time to pull up and avoid
mischief. The omnibus was on its right side and going at
a moderate pace. Here there was no evidence of negli-

gence on the part of the defendant, the owner of the

omnibus (x) . His servants, on the plaintiff's own showing,
had not done anything inconsistent with due care. There
was no proof that the driver turned round to speak to the
conductor otherwise than for a lawful or necessary purpose,
or had any reason to apprehend that somebody would run
under the horses' feet at that particular moment. Again
ifa horse being ridden (y) or driven (z) in an ordinary
manner runs away without apparent cause, and in spite of
the rider's or driver's efforts trespasses on the footway and
there does damage, this is not evidence of negligence. ^The

^plaintiff ought to show positively want of care, or want of

skill, or that the owner or person in charge of the horse
" To hold that the mere fact
lasreable.

~(t) Erie C. J., Cotton v. Wood, (y} Hammack White (1862) 11

v.

note (r) last page. C. B. N. S. 588, 31 L. J. C. P. 129.

(u) Lord Halsbury, 12 App. Ca. (z) Manzoni v. Douglas (1880)

6
at p. 45. Q. B. D. 145, 50 L. J. Q. B. 289,
(v} See note (r), above. where it was unsuccessfully at-

(x) It would be convenient if one temptedto shake the authority of

could in these running- down cases Hammack v. White. The cases
on land personify the vehicle, like relied on for that purpose belong
a ship. to a special class.
 BURDEN OF PROOF. 383

of a liorse bolting is per se evidence of negligence would be

mere reckless guesswork" (a).

Sometimes it is said that the burden of proof is on the

plaintiff to show that he was himself using due care, and

ithas been attempted to make this supposed principle a

guide to the result to be arrived at in cases where the

defence of contributory negligence is set up. This view
seems to be rather prevalent in America (b), but in the

present writer's opinion it is unsound. The current of

English authority is against it, and it has been distinctly

rejected in the House of Lords (c). What we consider to

be the true view of contributory negligence will be pre-

sently explained.

This general principle has to be modified where there is Where

a relation of contract between the parties, and (it should contract

seem) when therea personal undertaking without a con-

is

tract. A coach runs against a cart the cart is damaged, ;

the coach upset, and a passenger in the coach is hurt.

is

The owner of the cart must prove that the driver of the
coach was in fault. But the passenger in the coach can

say to the owner: "You promised for gain and reward

to bring me safely to my journey's end, so far as reason-
able care and skillHere am I thrown out
could attain it.

on the road with a broken head. Your contract is not

performed it is for you to show that the misadventure is
;

due to a cause for which you are not answerable" (d).

When a railway train runs off the line, or runs into

() Lindley J., 6 Q. B. D. at L. J. Q. B. 229, per Lord Watson

p. 153. and Lord Fitzgerald.
(b) E. g. Murphy v. Deane, 101 (d) In other words (to anticipate
Mass. 455. Contra Lord Watson part of a special discussion) the
in Wakelin v. L. $ S. W. R. Co- obligation does not become greater
if we regard the
(H. L. Dec. 10, 1886). liability as ex
(c) Wakelin
v. L. $ S. W. JR. Co. dclicto instead of ex contractu; but

(1886) 12 App. Ca. 41, 47, 51, 56 neither does it become less.
384 NEGLTGP]NCE.

another train, both permanent way and carriages, or both

trains (as the case may be) being under the same com-

pany's control, these facts, if unexplained, are as between

the company and a passenger evidence of negligence (c).
In like manner man
has undertaken, whether for
if a
reward or not, to do something requiring special skill, he
may fairly be called on, if things go wrong, to prove his
competence :
though if he is a competent man, the mere
fact of a mishap (being of a kind that even a competent
person is exposed to) would of itself be no evidence of
negligence. We shall see later that, where special duties
of safe keeping or repair are imposed by the policy of the

law, the fact of an accident happening is held, in the same

manner, to cast the burden of proving diligence on the
person who is answerable for it, or in other words raises a

presumption of negligence. This is said without prejudice

to the yet stricter rule of liability that holds in certain
cases.

rhings
Again a presumption of negligence when the
there is

fendant's cause of the mischief was apparently under the control of

the defendant or his servants. The rule was declared by
the Exchequer Chamber in 1865 (/), in these terms :

"..There must be reasonable evidence of negligence.

"
3ut where the thing is shown to be under the manage-
ment of the defendant or his servants, and the accident is

such as in the ordinary course of things does not happen

if those who have the management use proper care, it

affords reasonable evidence, in the absence of explanation

hy thft
rlAfflnHfl.nfgj
fha.f. f.he n.fifii riant arose from want of
care."

(e) Carpue v. London $ Brighton $ S. G. R. Co. (1850) 5 Ex. 787.

M. Co. (1844) 5 Q. B. 747, 751, 13
(/) Scott v. London Dock Co. 3
L. J. Q. B. 138 ; Skinner v. L. B. H. & C. 596, 34 L. J. Ex. 220.
 EVIDENCE AND PRESUMPTIONS. 385

Therefore if I am lawfully and as of right (y) passing in

a place where people are handling heavy goods, and goods

being lowered by a crane fall upon me and knock me down,

this is evidence of negligence against the employer of the
men who were working the crane (h}.

The Court will take judicial notice of what happens in Common

the ordinary course of things, at all events to the extent affairs
y
of using their knowledge of the common affairs of life to Juiced.

complete or correct what is stated by witnesses. Judges

do not affect, for example, to be ignorant that the slipping
of one passenger out of several thousand in hurrying up
the stairs of a railway station is not an event so much out
of the run of pure accidents as to throw suspicion on the

safety of the staircase (i).

When we have once got something more than an ambi- On evi-

'

douce
guously balanced state of facts when the evidence, if sufficient
;

believed, is less consistent with diligence than with negli-

for
gence on the defendant's part, or shows the non-perf orm-
ance of a specific positive duty laid on him by statute,
contract, then the judgment whether the
or otherwise ;

plaintiff has suffered by the defendant's negligence is a

judgment of fact, and on a trial by jury must be left as

such in the hands of the jury (k) It is true that the rules.

as to remoteness of damage set some bounds to the con-

nexion of the defendant's negligence with the plaintiff's

loss (/). But even in this respect considerable latitude
(g) That is, not merely by the of dissent appear.
defendant's licence, as will be ex- (i) Grafter v. Metrop. R. Co.

plained later. (1866) L. R. 1 C. P. 300, 35 L. J.

(h) 3 H. & C. 696, Crompton, C. P. 132.

Byles, Blackburn, Keating JJ., (k) This is well put in the judg-
diss. Erie C. J. andMellor J. but ;
ment in M' Cully v. Clark (Penn-

no dissenting judgment was de-

1

sylvania, 1861) Bigelow L. C. 559.

livered, nor does the precise ground (/) Metrop. E. Co. v. Jackson

P. C C
386 NEGLIGENCE.

has been allowed (m). Bailway accidents have for the last
thirty years or more been the most frequent occasions of
defining, or attempting to define, the frontier between the
province of the jury and that of the Court.

Recent Two considerable and well marked groups of cases stand

railway
cases on out from the rest. One set be broadly described as
may
crossings
level crossing cases, and culminated in North Eastern
a in
?L^ I Railway Company v. Wanless, decided by the House of
alight." Lords in 1874 (n) ;
the other may still more roughly (but
in a manner which readers
familiar with the reports will
" invitation to "
at once understand) be called alight cases.

These are now governed by Bridges v. North London Rail-

way Company (0), another decision of the House of Lords
which followed closely on Wanless's case. In neither of
these cases did the House of Lords intend to lay down any
new nor any exceptional rule as regards railway
rule,

companies yet it was found needful a few years later to

:

restate the general principle which had been supposed to

be impugned. This was done in Metropolitan Railway

Company v. Jackson (p).

Explana- ^he judge has a certain duty to discharge, and the

Metr. R.
jurors have another and a The judge has
different duty.
'o. v.
to say whether any facts have been established by evidence
from which negligence may be reasonably" inferred the ;

jurors have to say whether, from those facts, when sub-

mitted to them, negligence ought to be inferred. It is, in

(1877) 3 App. Ca, 193, 47 L. J. (n) L. K. 7 H. L. 12, 43 L. J.

C. P. 303. Q. B. 185.
(m) See Williams v. G. W. X. Co. (o) L. R. 7 H. L. 213, 43 L. J.

(1874) L. E. 9 Ex. 157, 43 L. J. Q. B. 151 (1873-4).

Ex. 105, supra, p. 38. Cp. per (p) 3 App. Ca. 193, 47 L. J.
Lord Halsbury, 12 App. Ca. at C. P. 303 (1877).

p. 43.
 RAILWAY CASES : JUDGE AND JURY. 387

my opinion, of the greatest importance in the administra-

tion of justice that these separate functions should be

maintained, and should be maintained distinct. It would

be a serious inroad on the province of the jury, if, in
a case where there are facts from which negligence may

reasonably be inferred, the judge were to withdraw the

case from the jury upon the ground that, in his opinion,

negligence ought not to be inferred and it would, on the

;

other hand, place in the hands of the jurors a power

which might be exercised in the most arbitrary manner,
if they were at liberty to hold that negligence might be
inferred from any state of facts whatever" (<?).
" On
a trial by jury it is, I conceive, undoubted that the
facts are for the jury and the law for the judge.
r
It is

not, however, in niany~cases practicable completely to sever

the law from the facts.
"
But
I think it has always been considered a question of
law determined by the judge, subject, of course, to
to be

review, whether there is evidence which, if it is believed,

and the counter evidence, if any, not believed, would
establish the facts in controversy. It is for the jury to

say whether, and how far, the evidence is to be believed.

And if the facts as to which evidence is given are such
that from them a farther inference of fact may legitimately
be drawn, it is for the jury to say whether that inference
is to be drawn or not. But it is for the judge to deter-
mine, subject to review, as a matter of law, whether from
those facts that farther inference may legitimately be
drawn" (r).
The case itself was decided on the ground that the hurt
suffered by the plaintiff was not the proximate consequence

(q) Lord Cairns, at p. 197. Ex. Ch., L. E. 4 Ex. 32, 38 L. J.

(r) Lord Blackburn at p. 207. Ex. 8, which Lord Blackburn goes
Cp. Ryder v. Wombwell (1868), in on to cite with approval.
cc2
388 NEGLIGENCE.

of any proved negligence of the defendants not that there ;

was no proof of the defendants having been negligent at

all, for there was
evidence which, if believed, showed mis-

management, and would have been quite enough to fix on

the defendant make good any damage
company liability to

distinctly attributable to such mismanagement as its

"natural and probable" consequence (s). As between
the plaintiff and the defendant, however, evidence of

negligence which cannot be reasonably deemed the cause

of his injury is plainly the same thing as a total want
of evidence. Any one can see that a man whose com-
plaint is that his thumb was crushed in the door of a

railway carriage would waste his trouble in proving (for

example) that the train had not a head-light. The House
of Lords determined, after no small difference of learned
opinions below, that him nothing to prove over-
it availed

crowding and scrambling for seats. The irrelevance is

more obvious in the one case than in the other, but it is
only a matter of degree.

The* 'level In the "level crossing" group of cases we have some

crossing" . ._

type of one crossing a railway at a place made and provided by

cases.
the company for that purpose, and where the company is

under the statutory duty of observing certain precautions.

The party assumes that the line is clear his assumption ;

is erroneous, and he is run down by a passing train. Here

thecompany has not entered into any contract with him ;

and he must prove either that the company did something

which would lead a reasonable man to assume that the
line was clear for crossing (), or that there was something
in their arrangements which made it impracticable or
(*) See pp. 32, 36, above. rily for the protection of carriage
(t)
As in Wanless''s case, L. R. 7 traffic) were left open when they
H. L. 12, 43 L. J. Q. B. 185, ought not to have been, so that the
where the gates (intended prima- plaintiff was thrown off his guard.
 RAILWAY CASES. 389

unreasonably difficult to ascertain whether the line was

clear or not. Proof of negligence in the air, so to speak,
" Mere
will not do. allegation or proof that the company
were guilty of negligence is altogether irrelevant they ;

might be guilty of many negligent acts or omissions,

which might possibly have occasioned injury to somebody,
but had no connexion whatever with the injury for which
redress sought, and therefore the plaintiff must allege
is

and prove, not merely that they were negligent, but that
their negligence caused or materially contributed to the
"
injury (u). What may reasonably be held to amount to
"
such proof cannot be laid down in general terms. You
must look at each case, and all the facts of the case, before
you make up your mind what the railway company ought
"
to do (x). But unless the plaintiff's own evidence shows
that the accident was due to his own want of ordinary
care (as where in broad daylight he did not look out at
all) (y), the tendency of modern authority is to leave the

matter very much at large for the jury. In Dublin,,

Wicldow and Wcxford Railway Co. v. Shttery (z), the only

point of negligence made against the railway company

was that the train which ran over and killed the plaintiff's
husband did not whistle before running through the
station where he was crossing the line. It was night at
the time, but not a thick night. Ten witnesses distinctly

(u} Lord Watson, Wakelin v. L. more presently. Only the circum-

$ S. W. H. Co. (1886) 12 App. Ca. stance of daylight seems to distin-

41, 47, 56 L. J. Q. B. 229. guish this from Slatterns case (next

(x) Bowen L. J., Davey L. $v. note).
S. W. R. Co. (1883) 12 Q. B. Div. (z)
3 App. Ca. 1155. Nearly all
at p. 76. the modern cases on " evidence
(y] Davey v. L. $ S. W. E. Co. of negligence" were cited in the
(1883) 12 Q. B. Div. 70, 53 L. J. argument (p. 1161). Observe that
Q. B. 58 a case which perhaps
: the question of the verdict being
belongs properly to the head of against the weight of evidence was
contributory negligence, of which not open (p. 1162).
390 NEGLIGENCE.

and positively testified that the engine did whistle. Three

swore that they did not hear it. A
jury having found
for the plaintiff, it was held by the majority of the House
of Lords that the Court could not enter a verdict for the

defendants, although they did not conceal their opinion

that the actual verdict was a perverse one (a).
r
mr I n the other group, which we have called
" invitation to
vitation to
alight" alight" cases, the nature of the facts is, if anything, less
srroup.
favourable to the defendant. A
train stopping at a station
overshoots the platform so that the front carriages stop at
a place more or less inconvenient, or it may be dangerous,
for persons of ordinary bodily ability to -alight. A pas-
senger bound for that station, or otherwise minded to
alight, is unaware (as by reason of darkness, or the like,
he well may be) of the inconvenience of the place (b), or
else is aware of it, but takes the attendant risk rather than
be carried beyond his destination. In either case he gets
out as best he can, and, whether through false security, or
in spite of such caution as he can use, has a fall or is

otherwise hurt. Here the passenger is entitled by his

contract with the company to reasonable accommodation,
and they ought to give him facilities for alighting in a
reasonably convenient manner. Overshooting the platform
is not of itself negligence, for that can be set
right by
backing the train (c) It is a question of fact whether
.

(a) The majority consisted of P. 551, 43 L. J. C. P. 304, does

Lord (who thought the
Cairns not seem consistent with this de-
verdict could not have stood if the cision ;
there was difference of
accident had happened by day- opinion in that case also,
light), Lord Penzance, Lord (b) Cockle v. 8. E. R. Co. (1872)

O'Hagan, Lord Selborne, and Lord Ex. Ch. L. R. 7 C. P. 321, 41

Gordon the minority of Lord
;
L. J. C. P. 140.
Hatherley, Lord Coleridge, and (c)
Siner v. G. W. R. Co. (1869)
Lord Blackburn. Ellis v. G. W. Ex. Ch. L. B. 4 Ex. 117, 38 L. J.
R. Co. (Ex. Ch. 1874) L. R. 9 C. Ex. 67.
 EVIDENCE. 391

under the particular circumstances the company's servants

were reasonably diligent for the accommodation of the
passengers (d), and whether the passenger, if he alighted
knowing the nature of the place, did so under a reasonable
apprehension that he must alight there or not at all (e) .

All these cases are apt to be complicated with issues Compii-

of contributory negligence and other similar though not w ith con-
identical questions. We shall advert to these presently.

It will be convenient now to take a case outside these g ence &c >
-

particular types, and free from their complications, in

which the difficulty of deciding what is " evidence of neg-
"
ligence is illustrated. Such an one is Smitb^?r - London
and South Western Railway Company (/). The facts are, other
8
in this country and climate, of an exceptional kind but :
J i( ^ g ^J"
"evidence
the case is interesting because, though distinctly within
the line at wKich the freedom of the jury ceases, that line gence ".:
is shown' by the tone and language of the judgments in L.
$ s. W.
both the Common Pleas and the Exchequer Chamber to
E '

be nearly approached. The action was in respect of pro-

perty burnt by fire, communicated from sparks which had

escaped from the defendant company's locomotives. The
material elements of fact were the following.
Hot dry weather had prevailed for some time, and at
the time of the accident a strong S.E. wind was blowing.
About a fortnight earlier grass had been cut by the
defendants' servants on the banks adjoining the line, and
the boundary hedge trimmed, and the cuttings and trim-

(d) Bridges v. N. London E. Co. (/) L. R. 5 C. P. 98, 39 L. J.

p. 386, above. C. P. 68, in Ex. Ch. 6 C. P. 14,

(e)
Robson v. N. H. Co. 2 Q.
. 40 L. J. C. P. 21 (1870). The
B. Div. 85, 46 L. J. Q. B. 50 Rose
;
accident took place in the extra-
v. N. JE. R. Co. 2 Ex. Div. 248, 46 ordinarily warm and dry summer
L. J. Ex. 374 (both in 1876). of 1868.
390 NEGLIGENCE.

and positively testified that the engine did whistle. Three

swore that they did not hear it. A
jury having found
for the plaintiff, it was held by the majority of the House
of Lords that the Court could not enter a verdict for the

defendants, although they did not conceal their opinion

that the actual verdict was a perverse one (a).
r
The "m- jn fa Q we have "
vitation to
^ ner group, which called invitation to
alight" alight" cases, the nature of the facts is, if anything, less
favourable to the defendant. A
train stopping at a station
overshoots the platform so that the front carriages stop at
a place more or less inconvenient, or it may be dangerous,
for persons of ordinary bodily ability to -alight. A pas-
senger bound for that station, or otherwise minded to

alight, is unaware (as by reason of darkness, or the like,

he well may be) of the inconvenience of the place (&), or
else is aware of it, but takes the attendant risk rather than
be carried beyond his destination. In either case he gets
out as best he can, and, whether through false security, or
in spite of such caution as he can use, has a fall or is

otherwise hurt. Here the passenger is entitled by his

contract with the company to reasonable accommodation,
and they ought to give him facilities for alighting in a
reasonably convenient manner. Overshooting the platform
is not of itself negligence, for that can be set
right by
backing the train (c) It is a question of fact whether
.

(a) The majority consisted of P. 551, 43 L. J. C. P. 304, does

Lord (who thought the
Cairns not seem consistent with this de-
verdict could not have stood if the cision ;
there was difference of
accident had happened by day- opinion in that case also,
light), Lord Penzance, Lord (b) Cockle v. S. JE. . Co. (1872)

O'Hagan, Lord Selborne, and Lord Ex. Ch. L. R. 7 C. P. 321, 41

Gordon the minority of Lord
;
L. J. C. P. 140.
Hatherley, Lord Coleridge, and (c)
Siner v. G. W. It. Co. (1869)
Lord Blackburn. Ellis v. G. W. Ex. Ch. L. R. 4 Ex. 117, 38 L. J.
R. Co. (Ex. Ch. 1874) L. R. 9 C. Ex. 67.
 EVIDENCE. 391

under the particular circumstances the company's servants

were reasonably diligent for the accommodation of the
passengers (d), and whether the passenger, if he alighted
knowing the nature of the place, did so under a reasonable
apprehension that he must alight there or not at all (e).

All these cases are apt to be complicated with issues Compii-

of contributory negligence and other similar though not with con-
identical questions. We shall advert to these presently.

It will be convenient now to take a case outside these g ence &c >
-

particular types, and free from their complications, in

"
which the difficulty of deciding what is evidence of neg-

ligence" is illustrated. Such an one is Smiths\- London

and South Western Railway Company (/). The facts are, other
in this country and climate, of an exceptional kind
but tio^s^T :

the case is interesting because, though distinctly within "evidence

the line at which the freedom of the jury ceases, that line gence ".:
is shown' by the tone and language of the judgments in x. 8. W.
both the Common Pleas and the Exchequer Chamber to
be nearly approached. The action was in respect of pro-

perty burnt by fire, communicated from sparks which had

escaped from the defendant company's locomotives. The
material elements of fact were the following.
Hot dry weather had prevailed for some time, and at
the time of the accident a strong S.E. wind was blowing.
About a fortnight earlier grass had been cut by the
defendants' servants on the banks adjoining the line, and
the boundary hedge trimmed, and the cuttings and trim-

Bridges v. N. London R. Co.

(d) (/) L. R. 5 C. P. 98, 39 L. J.
p. 386, above. C. P. 68, in Ex. Ch. 6 C. P. 14,

(e) Eobson
v. N. E. .Co. 2 Q. 40 L. J. C. P. 21 (1870). The
B. Div. 85, 46 L. J. Q. B. 50 Hose
;
accident took place in the extra-
v. N. E. -R. Co. 2 Ex. Div. 248, 46 ordinarily warm and dry summer
L. J. Ex. 374 (both in 1876). of 1868.
392 NEGLIGENCE.

mings had, on the morning of the fire (g), been raked into
heaps, and lay along the bank inside the hedge. These
cuttings and trimmings were, by reason of the state of
the weather, very dry and inflammable.
Next/ the hedge there was a stubble field ; beyond that
a road/; on the other side of the road a cottage belonging
to th6 plaintiff, 200 yards in all distant from the railway.
Two trains passed, and immediately or shortly after-
wards the strip of grass between the railroad and the
hedge was seen to be on fire. Notwithstanding all efforts
made to subdue it, the fire burnt through the hedge,
spread over the stubble field, crossed the road, and con-
sumed the plaintiffs cottage.
There was no evidence that the railway engines were
improperly constructed or worked with reference to the
escape of sparks, and no direct evidence that the fire came
from one of them.
The jury found for the plaintiff; and it was held
(though with some that they were warranted
difficulty) (ti)

in so finding on the ground that the defendants were negli-

gent, having regard to the prevailing weather, in leaving

the dry trimmings in such a place and for so long a time.
The though unusual, was apparent, and the company
risk,
was bound to be careful in proportion. " The more likely
the hedge was to take fire, the more incumbent it was
upon the company to take care that no inflammable
"
material remained near to it (i). Thus there was evidence
enough (though it seems only just enough) to be left for

(g] See statement of the facts in Ch. on the ground that the par-
the report in Ex. Ch. L. R. 6 C. P. ticulardamage in question could
at p. 15. not have reasonably been antici-
(h) Brett J. dissented in the pated.
Common and Blackburn J.
Pleas, (t) Lush J. in Ex. Ch. L. R. 6
expressed some doubt in the Ex. C. P. at p. 23.
 EVIDENCE. 393

the jury to decide upon. Special danger was apparent,

and it would have been easy to use appropriate caution.
On hand the happening of an accident in extra-
the other

ordinary circumstances, from a cause not apparent, and in

a manner that could not have been prevented by any

ordinary measures of precaution, is not of itself any

evidence of negligence (). And a staircase which has
been used by many thousand persons without accident
cannot be pronounced dangerous and defective merely
because the plaintiff has slipped on it, and somebody can
be found to suggest improvements (I).

might be largely multiplied, and may be No precise

Illustrations
creneral
found in abundance in Mr. Horace Smith's, Mr. Camp- mie can
Mr. Beven's monograph, or by means of the cita-
or &lven -

bell's,
tions and discussions in the leading cases themselves.

Enough has been said to show that by the nature of the

problem no general formula can be laid down except in

some such purposely vague terms as were used in Scott v.
London Dock Co. (m).

We have said that the amount of caution required of a Due care

"
citizen in his conduct proportioned to the amount of
is apparent

apparent danger. In estimating the probability of danger plication"

to others, we are entitled to assume, in the absence of any- of
*^
M *
J accidents
thing to show the contrary, that they have the full use of through
common faculties, and are capable of exercising ordinary infirmity,
caution. If a workman throws down a heavy object from

(k) Blyth v. Birmingham Water- use, whereof the Court took judi-
works Co. (1856) 11 Ex. 781, 25 cial notice "with the common
L. J. Ex. 212, supra, p. 42. experience which every one has,"
(1) Crofter v. Metrop. E. Co. per Willes J. at p. 303), and it was
(1868) L. R. 1 C. P. 300, 35 L. J. suggested that lead would have
C. P. 132 the plaintiff slipped on
: been a safer material,
the brass "nosing" of the steps (tri)
P. 384, above,
(this being the material in common
394 NEGLIGENCE.

" in a
a roof or country village, where few
scaffolding
passengers are," he is free from criminal liability at all
a he calls out to all
events, provided people to have a
care" (n). Now some passer-by may be deaf, and may
suffer by not hearing the warning. That will be his mis-
fortune, and may be unaccompanied by any imprudence
on his part but it cannot be set down to the fault of the
;

workman. If the workman had no particular reason to

suppose that the next passer-by would be deaf, he was
bound only to such caution as suffices for those who have
ears to hear. The same rule must hold if a deaf man is
run over for want of hearing a shout or a whistle (0), or a
blind man for want of seeing a light, or if a colour-blind

man, being unable to make out a red danger flag, gets in

the line of fire of rifle or artillery practice ;
or if inany of
these circumstances a child of tender years, or an idiot,

through mere ignorance of the meaning which the

suffers

warning sight or sound conveys to a grown man with his

wits about him. And this is not because there is any
fault in the person harmed, for there may well be no fault
at all. Whatever we think, or a jury might think, of a
blind man walking alone, it can hardly be deemed incon-
sistent with common prudence for a deaf man to do so ;

and it is known that colour-blind people, and those with

whom they live, often remain ignorant of their failing
until it is disclosed by exact observation or by some
accident. It is not that the law censures a deaf man for
not hearing, or a colour-blind one for not perceiving a red

flag. The normal measure of the caution required from a

(n) Blackst. Comm. iv. 192. D. (o) Cp. SMton

v. L. $ N. W. R.
9. 2, ad. leg. Aquil. 31. In a civil Co. (1867) L. R. 2 C. P. 631, 36
action it would probably be left to L. J. C. P. 249, decided however
the jury whether, on the whole, on the ground that the accident
the work was being done with was wholly due to the man's own
reasonable care. want of care.
 NOTICE OF SPECIAL DANGER. 395

lawful man must

be fixed with regard to other men's
normal powers of taking care of themselves, and abnormal
infirmity can make a difference only when it is shown that
in the particular case it was apparent.

On the other hand it seems clear that greater care is Distinc-

wnere
required of us when it does appear that we are dealing the person
a8
with persons of than ordinary faculty. Thus if a man ^tic? of
less

driving sees that a blind man, an aged man, or a cripple is

special

crossing the road ahead, he must govern his course and

an infirm

speed accordingly. He will not discharge himself, in the person,

event of a mishap, merely by showing that a young and
active man with good sight would have come to no harm.
In like manner if one sees a child, or other person mani-
festly incapable of normal discretion, exposed to risk from
one's action, it seems that proportionate care is required ;

and it further seems on principle immaterial that the child

would not be there but for the carelessness of some parent
or guardian or his servant. These propositions are not
supported by any distinct authority in our law that I am
aware of (p). But they seem to follow from admitted
principles, and to throw some light on questions which
arise under the head of contributory negligence.

III. Contributory Negligence.

In order that a man's negligence may entitle another -J4daoiiahlfi.

"
to a remedy against him, that other must have suffered m u 8 t be
harm whereof this negligence is a proximate cause. Now
I maybe negligent, and my negligence may be the occa-
sion of some one suffering harm, and yet the immediate "plamUff^
cause of the damage may be not my want of care but his gence is

(p) In the United States there is Cooley on Torts, 683 ;

Beven on
some: see Wharton, 307, 310; Negligence, 8.
396 NEGLIGENCE.

immediate own. Had I been careful to begin with, he would not

remedy, have been in danger but had he, being so put in danger,
;

used reasonable care for his own safety or that of his

property, the damage would still not have

happened.
Thus my original negligence is a comparatively remote
cause of the harm, and as things turn out the proxi-
mate cause is the sufferer's own fault, or rather (since
a man under no positive duty to be careful in his
is

own interest) he cannot ascribe it to the fault of another,

In a state of facts answering this general description

the person harmed is by the rule of the common law

-not entitled to any remedy. He is said to be " guilty
"
of contributory negligence a phrase well established
;

in our forensic usage, though not free from objection.

It rather suggests, as the ground of the doctrine, that a
man who does not take ordinary care for his own safety
is to be in a manner punished for his carelessness
by
disability to sue any one else whose carelessness was
concerned in producing the damage. But this view
is neither a reasonable one, nor supported by modern
authority, andalready distinctly rejected by writers
it is

of no small weight (<?). And it stands ill with the

common practice of our courts, founded on constant expe-
rience of the way in which this question presents itself in
real life.
" The received and usual way of directing a

jury ... is to say that if the plaintiff could, by the exer-

cise of such care and skill as he was bound to exercise, have
avoided the consequence of the defendant's negligence, he
cannot recover "(r). That is to say, he is not to lose his

remedy merely because he has been negligent at some

(q) See Campbell, 180 Horace ; delicto, though not without autho-
Smith, 226 and Wharton,
;
300 rity, is likewise confusing and
sqq. who gives the same conclu- objectionable,
sions in a more elaborate form. (r) Lord Blackburn, 3 App. Ca.
The use of such phrases as in pari at p. 1207.
 CONTRIBUTORY NEGLIGENCE. 397

stage of the business, though without that negligence the

subsequent events might not or could not have happened ;
but only if he has been negligent in the final stage and
at the decisive point of the event, so that the mischief, as
and when happens, is immediately due to his own want
it

of care and not to the defendant's. Again the penal

theory of contributory negligence fails to account for the
"
accepted qualification of the rule, namely, that though
the plaintiff may have been guilty of negligence, and

although that negligence may in fact have contributed

to the accident, yet if the defendant could in the result,

by the exercise of ordinary care and diligence, have

avoided the mischief which happened, the plaintiff's neg-
"
ligence will not excuse him (s). And in a recent leading
case, of which there will be more to say, the criterion of
what was the proximate cause of the injury is adopted

throughout (t).
The element of truth which the penal theory, as I have
called it, presents in a distorted form, is that the rule is

not merely a logical deduction, but is founded in public

" The ultimate
utility. justification of the rule is in
reasons of policy, viz. the desire to prevent accidents by

inducing each member of the community to act up to

the standard of due care set by the law. If he does not,
he "
is deprived of the assistance of the law (M).

The leading case which settled the doctrine in its Tu/\.

modern form is Tuff v. Warman (x). The action was

(s)
Lord Penzance, Radley v. L. L. J., and cp. Little v. Hackelt
$ N. W. E. Co. (1876) 1 App. Ca. (1886) 116 U. S. 366, 371.
at p. 759. (u) W. Schofield in Harv. Law
(t)
The Bernina (1887) 12 f. D. Rev. iii. 270.
36, 56 L. J. P. 38 affd. nom.
; (x) 2 C. B. N. S. 740, 6 C. B.
Mitts v. Armstrong (1888) 13 App. N. S. 573, 27 L. J. C. P. 322
Ca. 1, 57 L. J. P. 65; see espe- (1857-8).
cially the judgment of Lindley
398 NEGLIGENCE.

against the pilot of a steamer in the Thames f or running

down the plaintiff's barge ; the plaintiff's own evidence
showed that there was no look-out on the barge as to the ;

conduct of the steamer the evidence was conflicting, but

according to the plaintiff's witnesses she might easily

have cleared the barge. "Willes J. left it to the jury to
say whether the want of a look-out was negligence on
the part of the plaintiff, and if so, whether it " directly
contributed to the accident." This was objected to as too
favourable to the plaintiff, but was upheld both in the
full Court of Common Pleas and in the Exchequer

Chamber. In the considered judgment on appeal (y) it

*
is said that the proper question for the jury is ^whether.
the damage was occasioned entirely by the negligence or

improper conduct of the defendant, or whether the plaintiff

Jiimself so far contributed to the misfortune by his own

.negligence or want of ordinary and common care and
caution that, but for such negligence or want of ordinary
care and caution on his part/ the misfortune would not
have happened." But negligence will not disentitle the

plaintiff to recover, unless it be such that without it the

harm complained of would (2) not have happened ;
"nor
ifthe defendant might by the exercise of care on his part
have avoided the consequences of the neglect or care-
lessness of the plaintiff."

v. In Radley v. London and North Western Railway Co. (a).

L. $ N. jr.
E. Co. this doctrine received a striking confirmation.

The defendant railway company was in the habit of

taking full trucks from the siding of the plaintiffs, colliery

(y} 5 C. B. N. S. at p. 585. Exchequer Chamber, L. E. 10 Ex.

(z) Not "could:" see Beven on 100, and restoring that of the Court
Negligence, 132. of the Exchequer, L. R. 9 Ex. 71

(a) 1 App. Ca. 754, 46 L. J. Ex. (1874-6).

573, reversing the judgment of the
 CONTRIBUTORY NEGLIGENCE. 399

owners, and returning the empty trucks there. Over this

siding was a "bridge eight feet high from the ground. On
a Saturday afternoon, when all the colliery men had left

work, the servants of the railway ran some trucks on the

siding and left them there. One of the plaintiffs' men
knew this, hut nothing was done to remove the trucks.
The first of these trucks contained another hroken-down
truck, and their joint height amounted to eleven feet. On
the Sunday evening the railway servants brought on the
siding a line of empty trucks, and pushed on in front of
them all those previously left on the siding. Some resist-
ance was and the power of the engine pushing the
felt,

trucks was increased. The two trucks at the head of the

line, not heing able to pass under the bridge, struck it and
broke it down. An action was brought to recover damages
for the injury. ^
The defence was contributory negligence,
on the ground that the plaintiffs' servants ought to have
moved the first set of trucks to a safe place, or at any rate
not have the piled-up truck in a dangerous position.
left

The judge at the trial told the jury that the plaintiffs
must satisfy them that the accident " happened by the
negligence of the defendants' servants, and without any
contributory negligence of their own in other words, that;

it was solely by the negligence of the defendants' ser-

vants."
On these facts and under jury found
this direction the

that there was contributory negligence on the part of the

plaintiffs,
and a verdict was entered for the defendants.
The Court of Exchequer (b) held that there was no evi-
dence of contributory negligence, chiefly on the ground
that the plaintiffs were not bound to expect or provide

against the negligence of the defendants. The Exchequer

(b) Bramwell and Amphlett BB.

400 NEGLIGENCE.

Chamber held that there was evidence of the plaintiffs

(c)

having omitted to use reasonable precaution, and that the

direction given to the jury was sufficient. In the House
of Lords it was held (d) that there was a question of fact
for the jury, but the law had not been sufficiently stated
to them. They had not been clearly informed, as they
should have been, that not every negligence on the part of
the plaintiff which in any degree contributes to the mis-
chief will bar him of his remedy, but only such negli
ooiild. not by the exercise of ordinary
Vmvp n.vfndpd thft
" Ittrue that in part of his summing-up, the learned
is

judge pointed attention to the conduct of the engine-

driver, in determining to force his way through the

obstruction, as fit to be considered

by the jury on the
question of negligence but he failed to add that if they
;

thought the engine-driver might at this stage of the

matter by ordinary care have avoided all accident, any

previous negligence of the plaintiffs would not preclude

them from recovering.
" In
point of fact the evidence was strong to show that
this was the immediate cause of the accident, and the jury

might well think that ordinary care and diligence on the

part of the engine-driver would, notwithstanding any
previous negligence of the plaintiffs in leaving the loaded-
up truck on the line, have made the accident impossible.
The substantial defect of the learned judge's charge is that
that question was never put to the jury" (e).

' '
Proxi- This leaves no doubt that the true prnnnd of rontribn-
mate" or

(c) Blackburn, Mellor, Lush, tracting his opinion in the Ex.

Grove, Brett, Archibald JJ. diss. ; Ch.), and Lord Gordon.
JDenman J. (e) Lord Penzance, 1 App. Ca.
(d) By Lord Penzance, Lord at p. 760.

Cairns, Lord Blackburn (thus re-

 CONTRIBUTORY NEGLIGENCE. 401

tory negligence being ajjar to recovery is f.Tmf. it is the "decisive"

roximate cause of the_jniachief
^^^^ ^^^a^^^^ '^ and negligence
O O on the cajle
;
'

plaintiff's part which is only part of the inducing causes (/)

will not disable him. I say " the proximate cause," con-

sidering the term as now established by usage and

authority. But I would still suggest, as I did in the
" "
first edition, that decisive might convey the meaning
more exactly. For
the defendant's original negligence
if

were so far remote from the plaintiff's damage as not to be

" "
part at least of its proximate cause within the more

general meaning of that term, the plaintiff would not have

any case at all, and the question of contributory negligence
could not arise. We shall immediately see, moreover, that
independent negligent acts of A. and B. may both be
proximate in respect of harm suffered by Z., though either
of them, if committed by Z. himself, would have prevented
him from having any remedy for the other. Thus it
" "
appears that the term proximate is not used in. pre-

cisely the same sense in fixing a negligent defendant's

liability and a negligent plaintiff's disability.

The plaintiff's negligence, if it is to disable him, has
to be somehow more proximate than the defendant's. It
" "
seems dangerously ambiguous to use proximate in a

special emphatic sense without further or otherwise marking

" "
the difference. If we said decisive we should at any
rate avoid this danger.

It would seem that a person who has by his own act or Self-

default deprived himself of ordinary ability to avoid the disability

to av ld
consequences of another's negligence can be in no better
position than if, having such ability, he had failed to quences of

avoid them ; unless, indeed, the other has notice of his negli-
*
inability in time to use care appropriate to the emergency ;

(/) Or, as Mr. Wharton puts it, not a cause but a condition.
P. D D
402 NEGLIGENCE.

in which case the failure to use that care is the decisive

negligence. A. and B. are driving in opposite directions

on the same road on a dark night. B. is driving at a
dangerous speed, and A. is asleep, but B. cannot see that
he is asleep. Suppose that A., had he been awake, might
have avoided a collision by ordinary care notwithstanding
B.'s negligence. Can A. be heard to say that there is no
contributory negligence on his part because he was asleep ?
It seems not. Suppose, on the other hand, that the same
thing takes place by daylight or on a fine moonlight night,
so that B. would with common care and attention perceive
A.'s condition. Here B. would be bound, it seems, to use
special caution no less than if A. had been
disabled, say

by a sudden paralytic stroke, without default of his own.

So if a man meets a runaway horse, he cannot tell whether
it is by negligence or by inevitable accident, nor can
loose
this make any difference to what a prudent man could
or would do, nor, therefore, to the legal measure of the
diligence required (g).

Earlier Cases earlier than Tuffv. Warman (ti)

are now material
tions / only as illustrations.
:
A celebrated one is the "
donkey
JtatorNj case," Davies-y. Mann ('). There the plaintiff had turned
Mann. . T^s. .

his ass loose in a

highway with its forefeet fettered, and it
was run over by the defendant's waggon, going at " a
smartish pace." It was held a proper direction to the

jury that, whatever they thought of the plaintiff's conduct,

he was still entitled to his remedy if the accident might
have been avoided by the exercise of ordinary care on the
part of the driver. Otherwise " a man might justify the
driving over goods left on a public highway, or even over

(g) W. Schofield's article

Cp. Mr. C. P. 322.
in Harv. Law Rev. iii. 263. (i) 10 M. & W. 546, 12 L. J.
(h) 5 C. B. N. S. 573, 27 L. J. Ex. 10 (1842).
 CONTRIBUTORY NEGLIGENCE. 403

a manlying asleep there, or the purposely running against

a carriage going on the wrong side of the road" (j). With
this be compared the not much later case of Mayor of
may
Colchester v. Brooke (), where it was laid down (among

many other matters) that a ship runs on a bed of

if

oysters in a river, and could with due care and skill have
passed clear of them, the fact of the oyster-bed being a
nuisance to the navigation does not afford an excuse.
The facts of Dames v. Mann suggest many speculative
variations, and the decision has been much and not always
wisely discussed in America, though uniformly followed
in this country (I).

Butterfield v. Forrester (m) is a good example of obvious Butterfieid

f aul^ oh both sides, where the plaintiff's damage was im- ter.

mediately due to his own want of care. The defendant

had put up a pole across a public thoroughfare in Derby,
which he had no right to do. The plaintiff was riding
that way at eight o'clock in the evening in August, when
dusk was coming on, but the obstruction was still visible a
hundred yards off he was riding violently, came against
:

the pole, and fell with his horse. It was left to the jury
whether the plaintiff, riding with reasonable and ordinary
care, could have seen and avoided the obstruction if they ;

thought he could, they were to find for the defendant ;v

and they did The judge's direction was affirmed on
so.
" One
motion for a new trial. person being in fault will
not dispense with another's using ordinary care for him-
self." Here it can hardly be said that the position of the
pole across the road was not a proximate cause of the fall.

(j) Parke B., 10 M. & W. at p. (k) 7 Q. B. 339, 376, 15 L. J.

549; cp. his judgment in Bridge v. Q. B. 59.

(I) See Harv. Law Rev. Hi. 272
Grand Junction R. Co. (1838) 3 M.
& W. at p. 248. 276.

() 11 East 60 (1809).
404 NEGLIGENCE.

But was not the whole proximate cause. The other and
it

decisive cause which concurred was the plaintiff's failure to

see and avoid the pole in his way.

"
On the plaintiff's
the whole, then, fault, whether of
if

omission or of commission, has been the proximate cause

of the injury, he is without remedy against one also in
"
the wrong (n). On the other hand, if the defendant's
fault has been the proximate cause he is not excused

merely by showing that the plaintiff's fault at some

earlier stage created the opportunity for the fault which
was that cause not possible to say whether
(o). If it is

the plaintiff's or the defendant's negligence were the

proximate (or decisive) cause of the damage, it may be

said that the plaintiff cannot succeed because he has failed
to prove that he has been injured by the defendant's
negligence (p). On the other hand it might be suggested
that, since contributory negligence is a matter of defence
of which the burden of proof is on the defendant (<?), the
defendant would in such a case have failed to make
out his defence, and the plaintiff, having proved that the
defendant's negligence was a proximate cause if not the
whole proximate cause of his damage, would still be
entitled to succeed. The defendant must allege and prove
not merely that the plaintiff was negligent, but that the

plaintiff could by the exercise of ordinary

care have

avoided the consequences of the defendant's negligence (r) .

It a question, either way, whether the plaintiff shall

is

recover his whole damages or nothing, for the common

(n) Little \. HacJceit (1886) 116 (q) Lord "Watson (Lord Black-
U. S. 366, 371 ; Butterfcld v. burn agreeing), WaJcelin v. L. $ S.

Forrester, above. W. E. Co. (1886) 12 App. Ca. at

(o) Radley v. L. $ N. W. R. Co.; pp. 4749.

Dames v. Mann. (r) Bridge v. Grand Junction H.
(p) PerLindleyL. J., TheBernina, Co. (1838) 3 M. & W. 248.
12 P. D. 58, 89.
 CONTRIBUTORY NEGLIGENCE. 405

law, whether reasonably or not (6-), has made no provision

for apportioning damages in such cases. A learned writer
(whose preference for being anonymous I respect but
"
regret) has suggested that hardly sufficient attention has
rfbeen paid herein to the distinction between cases where
*the negligent acts are smmltancous and those where they
are successive. In regard to the*' former class, such as
ffy, Co, v. Slattern it}, or the
case of two persons colliding at a street corner, the rule is,

that if the plaintiff could by the exercise of ordinary care

have avoided the qMirlpnt hp nn/n/nnt. rwnypr In regard to
the latter class of cases, such as Davies v. Mann (u) and
Radley v. L. fy N. W. Ry. Co. (#), the rule may be stated
thus : that he who last has an opportunity nf nnnMiai/j the

accident, notwithstanding the nf>.gJ*./j#nn nf +1

And
the ground of both rules is the same :

that the law looks to the proximate cause, or, in other

words, will not measure out responsibility in halves or

iother fractions, but holds that person liable who was in the
"
main the cause of the injury (y).
Another kind of question where a person is arises

injured without any fault of his own, but by the combined

effects of the negligence of two persons, of whom the one

is not responsible for the other. It has been supposed

that A. could avail himself, as against Z. who has been

injured without any want of due care on his own part, of

the so-called contributory negligence of a third person B.
"It you were injured by my negligence, but it
is true
would not have happened if B. had not been negligent
also, therefore you cannot sue me, or at all events not

(s)
See per Lindley L. J., 12 P. (x) 1 App. Ca. 754, 46 L. J. Ex.
D. 89. 573.

(t)
3 App. Ca. 1155. (y) L. Q. B. v. 87.

() 12 M. & W. 546.
406 NEGLIGENCE.

apart from B." Recent authority is decidedly against

allowing such a defence, and in one particular class of cases
it has been emphatically disallowed. It must, however,
be open to A. to answer to Z. " You were not injured :

by my negligence but only and wholly by B.'s." It

at all,

seems to be a question of fact rather than of law what

respectivedegrees of connexion, in kind and degree,
between the damage suffered by Z. and the independent
negligent conduct of A. and B. will make it proper to say
that Z. was injured by the negligence of A. alone, or of
B. alone, or of both A. and B. But if this last conclusion
be arrived at, it is now quite clear that Z. can sue both A.
and B. (z).

The ex- In a case now overruled, a different doctrine was set up

1 r\ A
doctrine of which, although never willingly received and seldom acted

cation^" OIlj rema i ne(l of more or less authority for nearly forty
years. The supposed rule was that
travelling if A. is

in a vehicle, whether carriage or ship, which belongs to B.

and is under the control of B.'s servants, and A. is injured
in a collision with another vehicle belonging to Z., and
under the control of Z.'s servants, which collision is caused

partly by the negligence of B.'s servants and partly by

that of Z.'s servants, A. cannot recover against Z. The
passenger, it was said, must be considered as having in
some sense " identified himself" with the vehicle in which
he has chosen to purpose of com-
travel, so that for the

plaining of any outsider's negligence he is not in any

better position than the person who has the actual con-
trol (a). It is very difficult to see what this supposed

(z) Little v. Hacketl (1886) 116 115, 18 L. J. C. P. 336.

U. S. 366 ;
Mills v. Armstrong Judgments in Tbevfxpod v.
(a)

(1888) 13 AppT^aTTrWWffl^ Rnfan, see 12 P. D. at pp. 6467,

Thorogood v. Bryan (1849) 8 C. B. 13 App. Ca. at pp. 6, 7, 17.
 DOCTRINE OF " IDENTIFICATION." 407
"
identification" really meant. With regard to any actual
a figment. No
facts or intentions of parties, it is plainly

passenger carried for hire intends or expects to be answer-

able for the negligence of the driver, guard, conductor,

master, or whoever the person in charge may be. He

naturally intends and justly expects, on the contrary, to
hold every such person and his superiors answerable to
himself. Why that right should exclude a concurrent right

against other persons who have also been negligent in the

same transaction was never really explained. Yet the
eminent judges (b) who invented "
identification" must
have meant something. They would seem to have assumed,
rather than concluded, that the plaintiff was bound to

show, even in a case where no negligence of his own was

alleged, that the defendant's negligence was not only a
cause of the damage sustained, but the whole of the cause.
But this is not so. The strict analysis of the proximate or
immediate cause of the event, the inquiry who could last
have prevented the mischief by the exercise of due care,
is relevant only where the defendant says that the plaintiff
suffered by his own negligence. Where negligent acts of
two or more independent persons have between them
caused damage to a third, the sufferer is not driven to

apply any such analysis to find out whom he can sue. He

is entitled of course within the limits set by the general
rules as to remoteness of damage to sue all or any of the

negligent persons. It is no concern of his whether there

is any duty of contribution or indemnity as between those

persons,though in any case he plainly cannot recover in

the whole more than his whole damage.
The phrase " n flHtirfo 11 *a T negligence of a third person,"
r tr

which has sometimes been used, must therefore be rejected

as misleading. Peter, being sued by Andrew for causing

(b) Coltman, Maule, Cresswell, and Vaughan Williams JJ.

408 NEGLIGENCE.

him harm by negligence, may prove if he can that not his

negligence, hut wholly and only John's, harmed Andrew.

It is useless for him to show that John's negligence was
"
contributory" to the harm, except so far as evidence
which proved this, though failing to prove more, might
practically tend to reduce the damages.
It is impossible to lay down rules for determining
whether harm has been caused by A.'s and B.'s negligence

together, or by A.'s or B.'s alone. The question is essen-

tially one of fact. There is no reason, however, why joint

negligence should not be successive as well as simultaneous,
and there is some authority to show that itmay be. A
wrongful or negligent voluntary act of Peter may create
a state of things giving an opportunity for another wrong-
ful or negligent act of John, as well as for pure accidents.
If harm then caused by John's act, which act is of a
is

kind that Peter might have reasonably foreseen, Peter and

John may both be liable ;
and this whether John's act be
wilful or not, for kinds of negligent and wilfully
many
wrongful acts are unhappily common, and a prudent man
cannot shut his eyes to the probability that somebody will
commit them temptation is put in the way. One is not
if

entitled to make obvious occasions for negligence. A.

leaves the flap of a cellar in an insecure position on a high-

way where all manner of persons, adult and infant, wise

and foolish, accustomed to pass.
are B. in carelessly
passing, or playing with the flap, brings it down on him-
self, or on C. In the former case B. has suffered from his
own negligence and cannot sue A. In the latter B. is
liable to 0., but it may well be that a prudent man in A.'s

place would have foreseen and guarded against the risk of

a thing so left exposed in a public place being meddled
with by some careless person, and if a jury is of that
 CHILDREN AND GUARDIANS. 409

opinion A. may also be liable to C. (c). Where A. placed

a dangerous obstruction in a road, and it was removed by
some unexplained act of an unknown third person to
another part of the same road where Z., a person lawfully

using the road, came against it in the dark and was injured,
A. was held though there was nothing to
liable to Z.,
show whether the third person's act was or was not lawful
or done for a lawful purpose (d).

Another special
x class of cases requires consideration. If Accidents
t
to children
A. a child of tender years (or other person incapable of
is in custody

taking ordinary care of himself), but in the custody of M.,

an adult, and one or both of them suffer harm under
circumstances tending to prove negligence on the part of

Z., and also contributory negligence on the part of M. (e),

Z. will not be liable to A. M.'s negligence alone was the if

proximate cause of the mischief. Therefore if M. could,

by such reasonable diligence as is commonly expected of
persons having the care of young children, have avoided
the consequences of Z.'s negligence, A. is not entitled to
sue Z. : and this not because M.'s negligence is imputed by
a fiction of law to A., who by the hypothesis is incapable
of either diligence or negligence, but because the needful
foundation of liability is wanting, namely, that Z.'s negli-

gence, and not something else for which Z. is not answer-

able and which Z. had no reason to anticipate, should be
the proximate cause.

Now take the case of a child not old enough to use ordi- Children

r
-~f" (1863) 2 H. ^fj^^
*'
ffiflftn T
(c) (e) ffVTL?, Co. (1859)

I & C. 744, 33 L. J. Ex. 177; and Ex. Ch. E. B. &

E. 719, 27 L. J.
see
B. D.
2"
7-

at
y fft

330
*
^^ 3 Q. Q. B. 417, 28 L. J. Q. B. 258.
This case is expressly left un-
pp. 336, p. 43,
above; Dixon v. Hell, 5 M. & S. touched by Mills v. Armstrong, 13
198, p. 437, below. App. Ca. 1 (see at pp. 10, 19), 57

(d} Clark v. Chambers, last note.

L. J. P. 65.
410 NEGLIGENCE.
%

&c., un- nary care for its own safety, which by the carelessness of
the person in charge of allowed to go alone in a place
it is

where it is exposed to danger. If the child conies to

harm, does the antecedent negligence of the custodian
make any difference to the legal result? On principle
surely not, unless a case can be conceived in which that
negligence is the proximate cause. The defendant's duty
can be measured by his notice of special risk and his
means of avoiding it ;
there is no reason for making it

vary with the diligence or negligence of a third person in

giving occasion for the risk to exist. If the defendant is
so negligent that an adult in the plaintiff's position could
not have saved himself by reasonable care, he is liable.
If he is aware of the plaintiff's helplessness, and fails to
use such special precaution as is reasonably possible, then
also, we submit, he is liable. If he did not know, and
could not with ordinary diligence have known, the plain-
tiff to be incapable of taking care of himself (/), and has

used such diligence as would be sufficient towards an

adult or if, being aware of the danger, he did use such
;

additional caution as he reasonably could or if the facts ;

were such that no additional caution was practicable, and

there is no evidence of negligence according to the ordinary
standard (#), then the defendant is not liable.

V No English decision has been met with that goes the

length of depriving a child of redress on the ground that
a third person negligently allowed it to go alone (li)
. In

(/)This might happen in various not) that there was no evidence of

ways, by reason of darkness or negligence at all.
otherwise. (A) Mangan v. Atterton (1866) L.
(g) Singktonv. E. C. H. Co. (1889)
E. 1 Ex. 239, 35 L. J. Ex. 161,
7 C. B. N. S. 287, is a case of this comes near it. But that case went
kind, as it was decided not on the partly on the ground of the damage
imputing a third person's
fiction of being too remote, and since Clark
negligence to a child, but on the v. Chambers (1878) 3 Q. B. D. 327,

ground (whether rightly taken or 47 L. J. Q. B. 427, supra, p. 43, it

 "IDENTIFICATION." 411

America there have been such decisions in Massachu-

setts (*'), New York, and elsewhere: "but there are as
"
many decisions to the contrary (/) : and it is submitted
that both on principle and according to the latest authority
of the highest tribunals in both countries they are right.

In one peculiar case (k) the now exploded doctrine of Ohild v -

Hearn.
" . . . .

identification" (/) was brought in, gratuitously as it would

seem. Thewas a platelayer working on a rail-
plaintiff

way the railway company was by statute bound to main-

;

tain a fence to prevent animals (m) from straying off the

adjoining land ;
the defendant was an adjacent owner who

kept pigs. The fence was insufficient to keep out pigs (n).
Some pigs of the defendant's found their way on to the
line, it did not appear how, and upset a trolly worked by
hand on which the and others were riding back
plaintiff
from their work. The plaintiff's case appears to be bad on

is of doubtful authority. For our nary neglect in regard to one

own part we think it is not law. whom the defendant supposed a
(i) Holmes, The Common Law, person of full age and capacity,
128. would be gross neglect as to a child,
(J) Bigelow L. C. 729, and see or one known to be incapable of
Horace Smith 241. In Vermont escaping danger." So, too, Bige-
(Eobinson v. Cone, 22 Vt. 213, 224, low 730.
ap.Cooley on Torts, 681) the view (k) Child v. Hearn (1874) L. R.
maintained in the text is distinctly 9 Ex. 176, 43 L. J. Ex. 100.
taken. "We are satisfied that, P. 406, above,
(1)
"
although a child or idiot or lunatic (m) Cattle," held by the Court
may to some extent have escaped to include pigs,
into the highway, through the () That is, pigs of average
fault or negligence of his keeper, vigour and obstinacy see per ;

and so be improperly there, yet if Bramwell B., whose judgment

he is hurt by the negligence of the (pp. 181, 182) is almost a carica-
def endant, he is not precluded from ture of the general idea of the
his redress. If one know that "reasonable man." It was al-
such a person is on the highway, leged, but not found as a fact, that
or on a railway, he is bound to a the defendant had previously been
proportionate degree of watchful- warned by some one of his pigs
ness, and what would be but ordi- being on the line.
412 NEGLIGENCE.

one or both of two grounds there was no proof of actual

;

negligence on the defendant's part, and even if his

common- law duty was not altogether superseded,
to fence
as regards that boundary, by the Act casting the duty on
the railway company, he was entitled to assume that the

company would perform their duty and also the damage ;

was too remote (0). But the ground actually taken was
" that the
servant can be in no better position than the
master when he is using the master's property for the
master's purposes," or " the plaintiff is identified with the
land which he was using for his own convenience." This
ground would now clearly be untenable.

Admiralty rp^ common l aw rul e O f contributory negligence is

dividing unknown to the maritime law administered in courts of
Toss
Admiralty jurisdiction. Under a rough working rule
commonly called judicium rustictim, and apparently de-
rived from early medieval codes or customs, with none of

which, however, it coincides in its modern application (p),

the loss is equally divided in cases of collision where both

ships are found to have been in fault. It seems more than

doubtful whether the old maritime law made any distinc-

tion between cases of negligence and of pure accident.

However that may be, the rule dates from a time when
any more refinedworking out of principles was impos-
sible (q). As a rule of thumb, which frankly renounces

(0)
Note in Addison on Torts, This may have been practically so
5th ed. 27. in the firsthalf of the century, but

(p) Marsden on Collisions at it is neither a complete nor a cor-

Sea, ch. 5 (2nd ed.), and see an rect version of the law laid down
article by the same writer in L. Q. in Tuff v. Warman, 5 C. B. N. S.
K. ii. 357. 573, 27 L. J. C. P. 322. As long
(q) Writers on maritime law ago as 1838 it was distinctly pointed
state the rule of the common law out that " there mayhave been
to be that when both ships are in negligence in both parties, and yet
fault neither can recover anything. the plaintiff may be entitled to
 PRESUMPTIONS. 413

the pretence of being anything more, it is not amiss, and

itappears to be generally accepted by those whom it con-
cerns. By the Judicature Act, 1873 (r), it is expressly
preserved in the Admiralty Division.

IV. Auxiliary Rules and Presumptiom.

There are certain conditions under which the normal Action

standard of a reasonable man's prudence is peculiarly difficulty

difficult to apply, by reason of one party's choice of alter-

natives, or opportunities of judgment, being affected by

the conduct of the other. Such difficulties occur mostly
in questions of contributory negligence. In the first
place, a man who by another's want of care finds
himself in a position of imminent danger cannot be
held guilty of negligence merely because in that emer-

gency he does not act in the best way to avoid

the danger. That whicJLJjPpears the best way f,n n.
court examining ^
Q Tetter Afterwards at jejanr^ an4

jvith full
knowledge isnot necessaiil^obyious even to a
ynidfmt and skilful
-
man op p. snrMmi alarm. Still less
can the party whose fault brought on the risk be heard
to complain of the other's error of judgment. This rule
has been chiefly applied in maritime cases, where a ship

placed in peril by another's improper navigation has at

the last moment taken a wrong course (s) : but there is

authority for it elsewhere. A

person who finds the gates
of a level railway crossing open, and is thereby misled into

thinking the line safe for crossing, is not bound to minute

circumspection, and if herun over by a train the com-
is

to him although
" he
pany may be liable did not use his

recover:" Parke B. in Bridge v. (*)

The By well Castle (1879^ 4 P.
Grand Junction R. Co. (1838) 3 M. Div. 219 ;
and see oilier examples
& W. 244, 248. collected in Marsden on Collisions

(r) S. 25, sub-s. 9. See however at Sea, ch. 5, 2d ed.

Marsden, p. 149.
414 NEGLIGENCE.

faculties so clearly as he might have done under other

"
" One should not be held too
circumstances (t). strictly
for a hasty attempt to avert a suddenly impending danger,
"
even though his effort is ill-judged (it).

No duty to One might generalize the rule in some such form as

anticipate
negligence this : not only a man
cannot with impunity harm others

by his negligence, but his negligence cannot put them in

a worse position with regard to the estimation of default.
You shall not drive a man into a situation where there is

loss or risk every way, and then say that he suffered by

his own imprudence. Neither shall you complain that he
did not foresee and provide against your negligence. "We
are entitled to count on the ordinary prudence of our
fellow-men until we have specific warning to the contrary.
The driver of a carriage assumes that other vehicles will
observe the rule of the road, the master of a vessel that
other ships will obey the statutory and other rules of

navigation, and the like. And generally no man is bound

(either for the establishment of his own claims, or to avoid
claims of third persons against him) to use special pre-
caution against merely possible want of care or skill on the

part of other persons who are not his servants or under his
authority or control (x).
It is not, as a matter of law, negligent in a passenger
on a railway to put his hand on the door or the window-
rod, though it might occur to a very prudent man to try
first whether it was properly fastened for it ;
is the com-

pany's business to have the door properly fastened (y)

(t)
N. E. JR. Co. v. Wanless C. P. 121.

(1874) L. R. 7 H. L.
at p. 16 cp. ; (y) Gee v. Metrop. It. Co. (1873)
Slatterns ca. (1878) 3 App. Ca. at Ex. Ch. L. R. 8 Q. B. 161, 42
p. 1193. L. J. Q. B. 105. There was some
(u) Briggs v. Union Street Ry. difference of opinion how far the

(1888) 148 Mass. 72, 76. question of contributory negligence

(x) See Daniel v. Metrop. E. Co. in fact was fit to be put to the jury.

(1871) L. R. 5 H. L. 45, 40 L. J.
 CHOICE OF RISKS. 415

On the other hand if something goes wrong which does

not cause any pressing danger or inconvenience, and the

passenger comes to harm in endeavouring to set it right

himself, he cannot hold the company liable (z).

We
have a somewhat different case when a person, Choice of
risks
having an apparent dilemma of evils or risks put before under
him by another's default, makes an active choice between another's
them. The principle applied is not dissimilar : it is not ne s^-

necessarily and of itself contributory negligence to do

something which, apart from the state of things due to
the defendant's negligence, would be imprudent.

The earliest case where this point is distinctly raised

and treated by a full court is ClaucL^h v. Dethick (a). The

plaintiff was a cab-owner.
The defendants, for the pur-
pose of making a drain, had opened a trench along the
passage which afforded the only outlet from the stables
occupied by the plaintiff to the street. The opening was
not fenced, and the earth and gravel excavated from the
trench were thrown up in a bank on that side of it where
the free space was wider, thus increasing the obstruction.
In this state of things the plaintiff attempted to get two
of his horses out of the mews. One he succeeded in lead-

ing out over the gravel, by the advice of one of the defen-
This
the principle applied
is 4 C. P. at p. 743. The plaintiff
(z)

in Adams L. $ Y. R. Co. (1869)

v. was an otuside passenger on a
L. R. 4 C. P. 739, 38 L. J. C. P. coach, and jumped off to avoid
277, though (it seems) not rightly what seemed an imminent upset ;

in the particular case see in Gee ;

the coach was however not upset.
v. Metrop. R. Co. L. R. 8 Q. B. at It was left to the jury whether by

pp. 161, 173, 176. the defendant's fault he "was

(a) 12 Q. B.
439 (1848). The placed in such a situation as to
rule was laid down by Lord Ellen- render what he did a prudent pre-
borough at nisi prius as early as caution for the purpose of self-
1816 Jones v. oyce, 1 Stark. 493,
:
preservation."
cited by Montague Smith J., L. R.
416 NEGLIGENCE.

dants then present. With the other he failed, the rubbish

giving way and letting the horse down into the trench.
Neither defendant was present at that time (b). The jury
were directed " that it could not be the plaintiff's duty to
refrain altogetherfrom coming out of the mews merely
because the defendants had made the passage in some

degree dangerous that the defendants were not entitled

:

to keep the occupiers of the mews in a state of siege till

the passage was declared safe, first creating a nuisance

and then excusing themselves by giving notice that there
was some danger though, if the plaintiff had persisted in
:

running upon a great and obvious danger, his action

could not be maintained." This direction was approved.
Whether the plaintiff had suffered by the defendants'

negligence, or by his own

rash action, was a matter of
" the whole
fact and of degree properly left to the jury :

question was whether the danger was so obvious that the

plaintiff could not with common prudence make the

attempt." The decision has been adversely criticized by

Lord Bramwell, but principle and authority seem on the
whole to support it (c) .

One or two of the railway cases grouped for practical

" "
purposes under the catch- word invitation to alight
have been decided, in part at least, on the principle that,
where a passenger is under reasonable apprehension that if
he does not alight at the place where he is (though an
unsafe or unfit one) he will not have time to alight at all,
he be justified in taking the risk of alighting as best
may
he can at that place (d) notwithstanding that he might,

(b} Evidence was given by the Negligence, 2d ed. I agree with

defendants, but apparently not Mr. Smith's observations ad Jin.,
believed by the jury, that their p. 279.
men expressly warned the plaintiff (d) Hobson v. N. E. E. Co.
against the course he took. (1875-6) L. R. 10 Q. B. 271, 274,
(c) See Appendix
B. to Smith on 44 L. J. Q. B. 112 (in 2 Q. B. Div.
 CHOICE OF RISKS. 417

by declining that risk and letting himself be carried on to

the next station, have entitled himself to recover damages
for the loss of time and
resulting expense (e).

There has been a line of cases of this class in the State Doctrine
of ITcw
of NewYork, where a view is taken less favourable to the York
Court8 '

plaintiff than the rule of Clayards v. Dethick. If a train

fails to stop, and only slackens speed, at a station where it
is timed to stop, and a passenger alights from it while in
motion at the invitation of the company's servants (/), the
matter is for the jury so if a train does not stop a reason-
;

able time for passengers to alight, and starts while one is

alighting (g). Otherwise it held that the passenger

is

alights at his own risk. If he wants to hold the company

liable he must go on to the next station and sue for the
resulting damage (h).
On
the other hand, where the defendant's negligence
has put the plaintiff in a situation of imminent peril, the

plaintiff may hold the defendant liable for the natural

consequences of action taken on the first alarm, though

such action may turn out to have been unnecessary (').
It held that the running of even an obvious and
is also

great risk in order to save human life may be justified, as

against those by whose default that put in peril (k).
life is

And this seems just, for a contrary doctrine would have

85, 46 L. J. Q. B. 50) Rose v. N.

; (t)
Coulter v. Express Co. (1874)
E. R. Co. (1876) 2 Ex. Div. 248, 56 N. T. (11 Sickels) 585; Twomley
46 L. J. Ex. 374. T. Central Park It. R. Co. (1878) 69

(e) Contra
Bramwell L. J. in lax N. Y. (24 Sickels) 158. Cp. Jones
v. Corporation of Darlington (1879) v. Boyce, 1 Stark. 493.

5 Ex. D. at p. 35 ; but the last- (k) Eckert v. Long Island R. R.

mentioned cases had not been cited. Co. (1871) 43 N. Y. 502, 3 Am.
(/) Filer v. N. Y. Central R. R. Rep. 721 (action by representative
Co. (1872) 49 N. Y. (4 Sickels) 47. of a man killed in getting a child
63 N. Y. at p. 559. off the railway track in front of a
(g)

(h) Burrows v. Erie R. Co. (1876) train which was being negligently
63 N. Y. (18 Sickels) 556. driven).
P. E E
418 NEGLIGENCE.

the effect of making it safer for the wrong-doer to create a

great risk than a small one. Or we may put it thus ;

that the law does not think so meanly of mankind as to

hold it otherwise than a natural and probable consequence
of a helpless person being put in danger that some able-
bodied person should expose himself to the same danger to
effect a rescue.

Separation American jurisprudence is exceedingly rich in illustra-

f act in tions of the questions discussed in this chapter, and
States. American cases are constantly, and sometimes very freely,
cited and even judicially reviewed (/) in our courts. It

may therefore be useful to call attention to the peculiar

turn given by legislation in many of the States to the
treatment of points of " mixed law and fact." I refer to
those States where the judge is forbidden by statute (in
some cases by the Constitution of the State) (m) to charge
the jury as to matter of fact. Under such a rule the

summing-up becomes a categorical enumeration of all the

specific inferences of fact which
open to the jury to
it is

find, and which in the opinion of the court would have

different legal consequences, together with a statement of

those legal consequences as teading to a verdict for the

plaintiff or the defendant. 'And it is the habit of counsel

to frame elaborate statements of the propositions of law
for which they contend as limiting the admissible findings
of fact, or as applicable to the facts which may be found,
and to tender them to the court as the proper instructions

to be given to the jury. Hence there is an amount of

minute discussion beyond what we are accustomed to in

(I) E.g. Lord Esher's judgment at p. 10.

in The Bernina, 12 P. Div. at pp. (m) Stimson, American Statute
7782. Cp. per Lord Herschell Law, p. 132, 605.
in Mills v. Armstrong, 13 App. Ca.
 PECULIAR AMERICAN RULES. 419

this country, and it is a matter of great importance, where

an appeal contemplated, to get as little as possible left
is

at large as matter of fact. Thus attempts are frequently

made to persuade a court to lay down as matter of law
that particular acts are or are not contributory negli-

gence (n). Probably the common American doctrine that

the plaintiff has to prove, as a sort of preliminary issue,
that he was in the exercise of due care, has its origin in
this practice. It is not necessary or proper for an English

lawyer to criticize the convenience of a rigid statutory

definition of the provinces of judge and jury. But Eng-
lish practitioners consulting the American reports must
bear its prevalence in mind, or they thingsmay find many
hardly intelligible, and perhaps even suppose the substan-
tive differencesbetween English and American opinion
upon points of pure law to be greater than they really are.

(n) For a strong example see Kane v. N. Central R. Co. 128 U. S. 91.

EE2
420

CHAPTEK XII.

DUTIES OF INSURING SAFETY.

Excep- IN general, those who

in person go about an undertaking

general attended with risk to their neighbours, or set it in motion

*
1 *^- -C

duties of ^7 ^ne nan(i a servant, are answerable for the conduct

f
caution. Of ^^ undertaking with diligence proportioned to the
apparent risk. To this rule the policy of the law makes
exceptions on both sides. As we have seen in the chapter
of Greneral Exceptions, men are free to seek their own
advantage in the ordinary pursuit of business or uses of
property, though a probable or even intended result may
be to diminish the profit or convenience of others. We
now have to consider the cases where a stricter duty has
been imposed. As a matter of history, such cases cannot
easily be referred to any definite principle. But the
ground on which a rule of strict obligation has been
maintained and consolidated by modern authorities is the

magnitude of the danger, coupled with the difficulty of

proving negligence as the specific cause in the event of the

danger having ripened into actual harm. The law might

have been content with applying the general standard of
reasonable care, in the sense that a reasonable man dealing
with a dangerous thing fire, flood-water, poison, deadly

weapons, weights projecting or suspended over a thorough-

fare, or whatsoever else it be will exercise a keener

foresight and use more anxious precaution than if it were

an object unlikely to cause harm, such as a faggot, or a
loaf of bread. A prudent man does not handle a loaded
 RYLANDS f. FLETCHER. 421

gun or a sharp sword in the same fashion as a stick or a

shovel. But the course adopted in England has been to;

preclude questions of detail by making the duty absolute
;

or, if we prefer to put it in that form, to consolidate the

judgment of fact into an unbending rule of law. The law

takes notice that certain things are a source of extraordinary

risk, and a man who exposes his neighbour to such risk

is held, although his act is not of

wrongful, to insureitself

his neighbour against any consequent harm not due to

some cause beyond human foresight and control.

Yarious particular rules of this kind (now to be re- Ryiands v.

Fletcher.
garded as applications of a more general one) are recog-
nized in our law from early times. The generalization
was effected as by the leading case of
late as 1868,
Rylands v. Fletcher, where the judgment of the Ex-
chequer Chamber delivered by Blackburn J. was adopted
in terms by the House of Lords.
The nature of the facts in Fletcher v. Rylands, and
the question of law raised by them, are for our purpose
best shown by the judgment itself (a) :

"It appears from the statement in the case, that the Judgment
plaintiff was damaged by his property being flooded by
water, which, without any fault on his part, broke out of
a reservoir, constructed on the defendants' land by the
defendants' orders, and maintained by the defendants.
" It
appears from the statement in the case, that the
coal under the defendants' land had at some remote
period been worked out but this was unknown at the
;

time when the defendants gave directions to erect the

(a) L. R. 1 Ex. at p. 278, per For the statements of fact referred

Willes, Blackburn, Keating, Mel- to, see at pp. 267 269,

lor, Montague Smith, and Lush JJ.
422 DUTIES OF INSURING SAFETY.

reservoir, and the water in the reservoir would not have

escaped from the defendants' land, and no mischief would
have been done to the plaintiff, but for this latent defect
in the defendants' subsoil. And it further appears that
the defendants selected competent engineers and con-
tractors to make their reservoir, and themselves personally
continued in total ignorance of what we have called the
latent defect, in the subsoil; butthat these persons

employed by them in the course of the work became

aware of the existence of the ancient shafts filled up with
soil, though they did not know or suspect that they were
shafts communicating with old workings.
"It is found that the defendants personally were free
from blame, but that in fact proper care and skill was
all

not used by the persons employed by them, to provide for

the sufficiency of the reservoir with reference to these
shafts. The consequence was that the reservoir when
filled with water burst into the shafts, the water flowed
down through them into the old workings, and thence
into the plaintiff's mine, and there did the mischief.
"
The plaintiff, though free from all blame on his part,
must bear the loss unless he can establish that it was the
consequence of some default for which the defendants are
responsible. The question of law therefore arises, what is

the obligation which the law casts on a person who, like

the defendants, lawfully brings on his land
something
which, though harmless whilst it remains there, will
naturally do mischief if it escape out of his land. It is

agreed on hands that he must take care to keep in that

all

which he has brought on the land and keeps there, in order

that it not escape and damage his neighbours but
may ;

^ the question arises whether the duty which the law casts
upon him, under such circumstances, is an absolute duty
to keep it in at his peril, or is, as the majority of
 RYLANDS V. FLETCHER. 423

the Court of Exchequer have thought, merely a duty

to take all reasonable and prudent precautions in order
to keep it in, but no more. be the law, the
If the first

person who has brought on his land and kept there some-
thing dangerous, and failed to keep it in, is responsible
for all the natural consequences of its escape. If the
second be the limit of his duty, he would not be answer-
able except on proof of negligence, and consequently
would not be answerable for escape arising from any
latent defect which ordinary prudence and skill could not
detect
"
'
We think that the true rule of law is, that the person,--
who for his own
purposes brings on his lands, and collects
and keeps there, anything likely to do mischief if it escapes,
must keep it in at his peril, and, if he does not do so, is
prima facie answerable for all the damage which is the ,

natural consequence of its escape. He can excuse himself /

by showing that the escape was owing to the plaintiff's
default or perhaps that the escape was the consequence of
;

vis major, or the act of Grod ;

but as nothing of this sort
exists here, it is unnecessary to inquire what excuse would
be sufficient. The general rule, as above stated, seems on
principle just. The person whose grass or corn is eaten
down by the escaping cattle of his neighbour, or whose
mine is by the water from his neighbour's reservoir,
flooded
or whose cellar is invaded by the filth of his neighbour's

privy, or whose habitation is made unhealthy by the

fumes and noisome vapours of his neighbour's alkali
works, damnified without any fault of his own and it
is ;

seems but reasonable and just that the neighbour who has
brought something on his own property which was not
naturally there, harmless to others so long as it is confined
to his own property, but which he knows to be mischievous

if it gets on his neighbour's, should be obliged to make

424 DUTIES OF INSURING SAFETY.

good the damage which ensues if he does not succeed in

confining it to his own property. But for his act in

bringing it there, no mischief could have accrued, and it

seems hut just that he should at his peril keep it there so
that no mischief may accrue, or answer for the natural
and anticipated consequences. And upon authority, this
we think is established to be the law, whether the things
so brought be beasts, or water, or filth, or stenches."

Affirma- Not only was this decision affirmed in the House of

tion there-
of by H.L. Lords (), but the reasons given for it were fully con-

firmed. " If a person brings or accumulates on his land

anything which, if it should escape, may cause damage to

his neighbours, he does so at his peril. If it does escape
and cause damage, he is responsible, however careful he
may have been, and whatever precautions he may have
"
taken to prevent the damage (c). It was not overlooked
that a line had to be drawn between this rule and the

general immunity given to landowners for acts done in the

"natural user" of their land, or " exercise of ordinary
"
rights an immunity which extends, as had already been
settled by the House of Lords itself (c?), even to obviously

probable consequences. Here Lord Cairns pointed out

that the defendants had for their own purposes made " a
"
non-natural use of their land, by collecting water " in

quantities and in a manner not the result of any work or

operation on or under the land."

The detailed illustration of the rule in Rylands v.

Fletcher, asgoverning the mutual claims and duties of

adjacent landowners, belongs to the law of property rather
than to the subject of this work (e). "We shall return

(b) fit/lands v. Fletcher (1868) L. (d] Chasemore v. Richards (1859)

E. 3 H. L. 330, 37 L. J. Ex. 161. 7 H. L. C. 349, 29 L. J. Ex. 81.
(c)
Lord Cranworth, at p. 340. (e) See Fletcher v. Smith (1877)
 RYLANDS V. FLETCHER. 425

presently to the special classes of cases (more or less dis-

cussed in the judgment of the Exchequer Chamber) for
which a similar rule of strict responsibility had been estab-
lished earlier. As laying down a positive rule of law,
the decision in Rylands v. Fletcher is not open to criticism
in this country (/). But in the judgment of the Ex-
chequer Chamber itself the possibility of exceptions is

suggested, and we shall see that the tendency of later

decisions has been rather to encourage the discovery of

exceptions than otherwise. A rule casting the responsi-

bility ofan insurer on innocent persons is a hard rule,

though it may be a just one and it needs to be main- ;

tained by very strong evidence (g) or on very clear grounds

of policy. Now the judgment in Fletcher v.
Rylands (ti),
carefully prepared as it evidently was, hardly seems to
make such grounds clear enough for universal acceptance.
The liability seems to be rested only in part on the'
evidently hazardous character of the state of things artifi-
cially maintained by the defendants on their land. In
part the case is assimilated to that of a nuisance (*), and
in part, also, traces are apparent of the formerly prevalent ^

theory that a man's voluntary acts, even when lawful and

2 App. Ca. 781, 47 L. J. Ex. 4; 125 Mass. 232; Hears v. Dole, 135
Humphries v. Cousins (1877) 2 C. P. Mass. 508) ;
but distinctly dis-
D. 239, 46 L. J. C. P. 438 Surd- ;
allowed in New York : Losee v.
man v. North Eastern R. Co. (1878) Buchanan, 51 N. Y. (6 Sickels) 476.
3 C. P. Div. 168, 47 L. J. C. P. (ff)
See Reg. v. Commissioners of
368 and for the distinction as to
;
Sewers for Essex (1885) 14 Q. B.
"natural course of user," Wilson Div. 561.
v. Waddell, H. L. (Sc.) 2 App. Ca. L. R. 1 Ex. 277 sqq.
(h)
95. See especially at pp. 285-6.
(i)

(/) Judicial opinions still differ But can an isolated accident, how-
in the United States. See Bigelow ever mischievous in it results, be a
Jj. C. 497 500. The case has been nuisance? though its consequences
cited with approval in Massachu- may, as where a branch lopped or
setts (Shipley v. Fifty Associates, blown down from a tree is left
106 Mass. 194 ; Gorham v. Gross, lying across a highway.
426 DUTIES OF INSURING SAFETY.

free from negligence, are prima facie done at his peril (/c),
a theory which modern authorities have explicitly rejected
in America, and do not encourage in England, except so

far as Rylands v. Fletcher may itself be capable of being

used for that purpose (I}. Putting that question aside,
one does not see why the policy of the law might not have
been satisfied by requiring the defendant to insure dili-

gence in proportion to the manifest risk (not merely the

diligence of himself and his servants, but the actual use of
due care in the matter, whether by servants, contractors, or
others), and throwing the burden of proof on him in cases
where the matter is peculiarly within his knowledge.
This indeed is what the law has done as regards duties of

safe repair, as we shall presently see. Doubtless it is pos-

sible to consider Rylands v. Fletcher as having only fixed
a special rule about adjacent landowners (m) but it was :

certainly intended to enunciate something much wider.

Character Yet no case has been found, not being closely similar in
of later . . . .

cases. its facts, or within some previously reoogmzed category, in

which the unqualified rule of liability without proof of

negligence has been enforced. We have cases where

damages have been recovered for the loss of animals by

the escape, if so it may be called, of poisonous vegetation
or other matters from a neighbour's land. Thus the
owner of yew trees, whose branches project over his boun-
dary, so that his neighbour's horse eats of them and is

thereby poisoned, is held liable (ri) ;

and the same rule has

(k) L. E. 1 Ex. 286-7, 3 H. L. (m) Martin B., L. R. 6 Ex. at

341. p. 223.
(I) See tfte Nitre-glycerine Case (n) Crowhurst v. Amersham Burial
(1872) 15 Wall. 524 Brown v.
;
Board (1878) 4 Ex. D. 5, 48 L. J.
Kendall (1850) 6 Gush. 292 Holmes ;
Ex. 109. Wilson v. Newberry (1871)
v.Mather (1875) L. E. 10 Ex. 261, L. B. 7 Q. B. 31, 41 L. J. Q. B.
44 L. J. Ex. 176. 31, is not inconsistent, for there it
 RYLANDS V. FLETCHER I EXCEPTIONS. 427

been applied where a fence of wire rope was in bad repair,

so that pieces of rusted iron wire fell from it into a close

adjoining that of the occupier, who was bound to maintain

the fence, and were swallowed by cattle which died
thereof (o) . In these cases, was not contended,
however, it

nor was it possible to contend, that the defendants had

used any care at all. The arguments for the defence went
either on the
complained of being within the "natural
acts

user" of the land, or on the damage not being such as

could have been reasonably anticipated (p). may add We
that having a tree, noxious or not, permanently projecting
over a neighbour's land is of itself a nuisance, and letting

decayed pieces of a fence, or anything else, fall upon a

neighbour's land for want of due repair is of itself a tres-

pass. Then in Hallard v. Tomlinson

the sewage col- (q)
lected by the defendant in his disused well was an abso-

lutely noxious thing, and his case was, not that he had
done his best to prevent from poisoning the water which
it

supplied the plaintiff's well, but that he was not bound to

do anything.

On the other hand, the rule in Rylands v. Fletcher has Exception

been decided by the Court of Appeal not to apply to
damage of which the immediate cause is the act of God(r).
And the act of God does not necessarily mean an operation

was only averred that clippings case, the latter in Firth's.

from the defendant's yew trees (q) 29 Ch. Div. 115 (1885), 54
were on the plaintiff's land and ;
L. J. Ch. 454.
the clipping might, for all that (r) Act of God = vis maior =
appeared, have been the act of a 0o5 /: see D. 19. 2. locati con-
stranger, ducti, 25, 6. The classical signi-
(o) firth Bowling Iron Co.
v. fication of ' '
vis maior " is however
(1878) 3 C. P. D. 254, 47 L. J. wider for some purposes; Nugent
C. P. 358. v. Smith, 1 C. P. Div. 423, 429, per
(p) The former ground was Cockburn C. J.

chiefly relied on in CrowliursCs

428 DUTIES OF INSURING SAFETY.

of natural forces so violent and unexpected that no human

foresight or skill could possibly have prevented its effects.

It is enough that the accident should be such as human

foresight could not be reasonably expected to anticipate ;
and whether it comes within this description is a question
of fact (s) . The only material element of fact which dis-

tinguished the case referred to from Rylands v. Fletcher

was that the overflow which burst the defendant's embank-
ment, and set the stored-up water in destructive motion,
was due to an extraordinary storm. Now it is not because
due diligence has been used that an accident which
nevertheless happens is attributable to the act of Grod.
And experience of danger previously unknown may doubt-
less raise the standard of due diligence for after-time (t).

But the accidents that happen in spite of actual prudence,

and yet might have been prevented by some reasonably
conceivable prudence, are not numerous, nor are juries,
even if able to appreciate so fine a distinction, likely to be
much disposed to apply it (u). The authority of Rylands
v. Fletcher unquestioned, but Nichols v. Marsland has
is

practically empowered juries to mitigate the rule whenever

its operation seems too harsh.

(s)
Nichols v. Marsland (1875-6) water down the stream carried
L. R. 10 Ex. 255, 2 Ex. D. 1, 46 away four county bridges, in re-
L. J. Ex. 174. Note that Lord spect of which damage the action
Bramwell, who
in Rylands v. was brought.
Fletcher took the view that ulti- (t}
See Reg. v. Commissioners of
mately prevailed, was also a party Sewers for Essex (1885) in judgment
to this decision. The defendant of Q. B. D., 14 Q. B. D. at p. 574.
was an owner of artificial pools, (u) "Whenever the world grows
formed by damming a natural wiser it convicts those that came
stream, into which the waterwas before of negligence." Bramwell

finally let off by a system of weirs. B., L. R. 6 Ex. at p. 222. But

The rainfall accompanying an ex- juries do not, unless the defendant
tremely violent thunderstorm broke is a railway company,
the embankments, and the rush of
 KYLANDS V. FLETCHER I EXCEPTIONS. 429

Again the principal rule does not apply where the Act of
n|
immediate cause of damage is the act of a stranger (#), nor &c.
where the artificial work which is the source of danger is
maintained for the common benefit of the plaintiff and
the defendant (y) ;
and there is some ground for also

making an exception where the immediate cause of the

harm, though in itself trivial, is of a kind outside reason-

able expectation (z) .

There Works re-

is yet another exception in favour of persons
quired or
acting in the performance of a legal duty, or in the authorized
y
exercise of powers specially conferred by law. Where a
zamindar maintained, and was by custom bound to main-
tain, an ancient tank for the general benefit of agriculture
in the district, the Judicial Committee agreed with the
High Court of Madras in holding that he was not liable
for the consequences of an overflow caused by extraordinary

rainfall, no negligence being shown (a) . In the climate

of India the storing of water in artificial tanks is not only
a natural but a necessary mode of using land (b) In like .

manner the owners of a canal constructed under the

(x) j^^t^^M (1^79) 4 Ex. D. the defendant, and water escaped

76, 48 L. J. Ex. 417; Wilson v. through it and damaged the plain -
Newberry (1871) L. R. 7 Q. B. 31, tiff'sgoods on the ground floor.
41 L. J. Q. B. 31, is really a deci- Questions as to the relation of par-
sion on the same point. ticular kinds of damage to conven-

(y] Carstairs v. Taylor (1871) L. tional exceptions in contracts for

R. 6 Ex. 217, 40 L. J. Ex. 29; cp. safe carriage or custody are of
Madras R. Co. v. Zemindar of Car- course on a different footing. See
vatenagaram, L. R. 1 Ind. App. as to rats in a ship Hamilton v.
364. Pomfor/(1887) 12 App. Ca. 518.
(z) Carstairs v. Taylor, last note, (a) Madras JR. Co. v. Zemindar of
but the other ground seems the Carvatenagaram, L. R. 1 Ind. App.
principal one. The plaintiff was 364 ;
8. C., 14 Ben. L. R. 209.
the defendant's tenant; the de- (b) See per Holloway J. in the
fendant occupied the upper part of Court below, 6 Mad. H. C. at p.
the house. A gnawed a hole
rat 184.
in a rain-water box maintained by
430 DUTIES OF INSURING SAFETY.

authority of an Act of Parliament are not bound at their

peril to keep the water from escaping into a mine worked

under the canal (c)
. On the same principle a railway

company authorized by Parliament to use locomotive

engines on its line is bound to take all reasonable measures

of precaution to prevent the escape of fire from its engines,
but is not bound to more.notwithstanding the best
If,

practicable care and caution, sparks do escape and set fire

to the property of adjacent owners, the company is not
liable (d). The burden of proof appears to be on the
company to show that due care was used (0), but there
is some doubt as to this (/).

G. w. R. Some years before the decision of Ry lands v. Fletcher

/"Y -f

Canada v. the duty of a railway company as to the safe maintenance

Braid.
O f ^ g work s was considered by the Judicial Committee
on appeal from Upper Canada (g) The persons whose .

(c) Dunn v. Birmingham Canal seems to imply the contrary view ;

Co. (1872) Ex. Ch. L. R. 8 Q. B. but Piggott v. E. C. JR. Co. was

42, 42 L. J. Q. B. 34. The prin- not cited. It may be that in the
ciple was hardly disputed, the course of a generation the pre-
point which caused some difficulty sumption of negligence has been
being whether the defendants were found no longer tenable, experience
bound to exercise for the plaintiff's having shown the occasional escape
benefit certain optional powers of sparks to be consistent with all

given by the same statute. practicable care. Such a reaction

Vaughan v. Taff Vale R. Go.
(d) would hardly have found favour,
(1860) Ex. Ch. 5 H. & N. 679, 29 however, with the Court which
L. J. Ex. 247 cp. L. R. 4 H. L.
;
decided Fletcher v. Hi/lands in the
201, 202 Fremantle v. L.
;
N. W. Exchequer Chamber.
R. Co. (1861) 10 C. B. N. S. 89, 31 (g) G. W. R. Co. of Canada v.
L. J. C. P. 12. Braid (1863) 1 Moo. P. C. N. S.
(e) The escape
of sparks has been 101. There were some minor
held to be prima facie evidence of points on the evidence (whether
negligence Piggott v. E. C. R. Co.
;
one of the sufferers was not travel-
(1846) 3 C. B. 229, 16 L. J. C. P. ling at his own risk &c.), which
235 cp. per Blackburn J. in
;
were overruled cr regarded as not
Vaughan v. Taff Vale R. Co. open, and are therefore not noticed
(/) Smith v. L. $ S. W. R. Co. in the text.

(1870) Ex. Ch. L. R. 6 C. P. 14,

 MAINTENANCE OF WORKS. 431

rights against the company were in question were pas-

sengers in a train which fell into a gap in an embank-

ment, the earth having given way by reason of a heavy
rain-storm. It was held that
" the
railway company
ought to have constructed their works in such a manner as
to be capable of resisting all the violence of weather which
in the climate of Canada might be expected, though per-
haps rarely, to occur." And the manner in which the
evidence was dealt with amounts to holding that the
failure of works of this kind under any violence of

weather, not beyond reasonable prevision, is of itself

evidence of negligence. Thus the duty affirmed is a

strictduty of diligence, but not a duty of insurance. Let
us suppose now (what is likely enough as matter of fact)
that in an accident of this kind the collapse of the embank-
ment throws water, or earth, or both, upon a neighbour's
land so as to do damage there. The result of applying

the rule in Rylands v. Fletcher will be that the duty of the

railway company as landowner to the adjacent landowner

is higher than its duty as carrier to persons whom it has

contracted to carry safely ;

or property is more highly
regarded than life and limb, and a general duty than a
special one.
If the embankment was constructed under statutory

authority (as in most cases it would be) that would bring

the case within one of the recognized exceptions to Hy lands
v. Fletcher. But a difficulty which may vanish in practice
is not therefore inconsiderable in principle.

"We shall now shortly notice the authorities, antecedent other

to or independent of Rylands v. Fletcher, which establish j^^ce
the rule of absolute or all but absolute responsibility for ^ability,

certain special risks.

432 DUTIES OF INSURING SAFETY.

Duty of Cattle trespass is an old and well settled head, perhaps

1
the oldest. It is the nature of cattle and other live stock
to stray if not kept in, and to do
damage if they stray ;

and the owner is bound to keep them from straying on the

land of others at his peril, though liable only for natural
and probable consequences, not for an unexpected event,
such as a horse not previously known to be vicious kicking
a human being (/a). So strict is the rule that if any part
of an animal which the owner is bound to keep in is over

the boundary, this constitutes a trespass. The owner of a

stallion has been held liable on this ground for damage

done by the horse kicking and biting the plaintiff's mare

through a wire fence which separated their closes (i).
"
The result of the authorities is stated to be that in the
case of animals trespassing on land, the mere act of the
animal belonging to a man, which he could not foresee, or
which he took all reasonable means of preventing, may be
a trespass, inasmuch as the same act if done by himself
would have been a trespass" (&).
"a man
answerable for not
Blackstone (I) says that is
"
only his own trespass, but that of his cattle also but in :

" "
the same breath he speaks of negligent keeping as the

ground of liability, so that it seems doubtful whether the

law was then clearly understood to be as it was laid down
a century later in Cox v. Burbidge (m). Observe that the

only reason given in the earlier books (as indeed it still

is the archaic one that
prevails in quite recent cases)

(h) Cox v. Burbidge (1863)

13 C. (k) Brett J., L. R. 10 C. P. at
B. N. S. 430, 32 L. J. C. P. 89. p. 13 ; cp. the remarks on the

(i)
Ellis v. Loftus Iron Co. (1874) general law in Smith v. CooJc (1875)
L. R. 10 C. P. 10, 44 L. J. C. P. 1 Q. B. D. 79, 45 L. J. Q. B. 122

24, a stronger case than Lee v. (itself a case of contract).

Eiley (1865) 18 C. B. N. S. 722, (1) Comm. iii. 211.

34 L. J. C. P. 212, there cited and (m) 13 C. B. N. S. 430, 32 L. J.
followed. C. P. 89.
 CATTLE TRESPASS. 433

trespass by a man's cattle is equivalent to trespass by

himself.
The rule does not apply to damage done by cattle stray-

ing off a highway on which they are being lawfully driven :

in such case the owner is liable only on proof of negli-

gence (n) and the law is the same for a town street as for
;

a country road (0). Also a man may be bound by pre-

scription to maintain a fence against his neighbour's

cattle (p).
" Whether the owner of a
answerable in trespass
is
dog
for every unauthorized entry of the animal into the land
of another, as is the case with an ox," is an undecided

point. The better opinion seems to favour a negative

answer (q).

Closely connected with this doctrine is the responsibility Danger-

of owners of dangerous animals.
" A person keeping a vicious
anunal8 --
mischievous animal with knowledge of its propensities is

bound to keep it secure at his peril." If it escapes and

does mischief, he without proof of negligence,
is liable

neither is proof required that he knew the animal to be

mischievous, if it is of a notoriously fierce or mischievous

species (r). tame and domestic kind,
If the animal is of a

the owner is liable only on proof that he knew the parti-

" accustomed to bite
cular animal to be mankind," as the
common form of pleading ran in the case of dogs, or other-

(n) Goodwin v. Cheveley (1859) 4 (p) So held as early as 1441-2:

H. & N. 631, 28 L. J. Ex. 298. A Y. B. 19 H. VI. 33, pi. 68.
contrary opinion was expressed by (q) Head v. Edwards (1864) 17

Littleton, 20 Edw. IV. 11, pi. 10, C. B. N. S. 245, 34 L. J. C. P. 31 ;

cited in Read Edwards, 17 C. B.

v. and see Millen v. Fawdry, Latch,
N. S. 245, 34 L. J. C. P. at p. 32. 119.

(0} Tilktt v. Ward (1882)

10 Q. (r) As a monkey: Mayv.Burdett
B. D. 17, 52 L. J. Q. B. 61, where (1846) 9 Q. B. 101, and 1 Hale,
an ox being driven through a town P. C. 430, there cited,
strayed into a shop.
P. F F
434 DUTIES OF INSURING SAFETY.

wise vicious but when such proof;

is supplied, the duty is

absolute as in the former case. It is enough to show that

the animal has on foregoing occasions manifested a savage

disposition, whether with the actual result of doing mis-

chief on any of those occasions or not (s).
But the ne-
cessity of proving the sdenter, as it used to be called from
the language of pleadings, is often a greater burden on the

plaintiff than that of proving negligence would be and as ;

regards injury to cattle or sheep it has been done away with

by statute. And the occupier of the place where a dog is
kept is presumed for this purpose to be the owner of the
dog(0.
"
The word " cattle includes horses (u) and perhaps
pigs(e>).

Fire, fire- The risk incident to dealing with fire, fire-arms, explo-
sive orhighly inflammable matters, corrosive or otherwise
dangerous or noxious fluids, and (it is apprehended)
poisons, accounted by the common law among those
is

which subject the actor to strict responsibility. Some-

"
times the term " consummate care is used to describe

the amount of caution required : but it is doubtful

whether even this be strong enough. At least, we do
not know of any English case of this kind (not falling
under some recognized head of exception) where unsuc-

(*) Worth v. Gilling (1866) L. E. ed. pp. 5355. Further protection

2 C. P. 1 . As to what is sufficient against mischievous or masterless
notice to the defendant through his dogs is given by 34 & 35 Viet. c.
servants, Baldwin v. Casella (1872) 56, a statute of public police regu-
L. R. 7 Ex. 325, 41 L. J. Ex. 167; lations outside the scope of this
Applebee v. Percy (1874) Li. R,. 9 work.
C. P. 647, 43 L. J. C. P. 365. (u) Wright v. Pearson (1869) L.

(0 28 & 29 Viet. c. 60 (A.D. B. 4 Q. B. 582.

1865). There is a similar Act for (v} Child v. Hearn (1874) L. K.

Scotland, 26 & 27 Viet. c. 100. 9 Ex. 176, 43 L. J. Ex. 100 (on a

See Campbell on Negligence, 2nd different Act).
 FIRE AND DANGEROUS THINGS. 435

cessful diligence on the defendant's part was held ta

exonerate him.

As to fire, we find it in the fifteenth century stated to Duty of

1"
be the custom of the realm (which is the same thing as the fire?

common law) that every man must safely keep his own fire
so thatno damage in anywise happen to his neighbour (#).
In declaring on this custom, however, the averment was
" "
ignem suum tarn negligenter custodivit : and it does not

appear whether the allegation of negligence was travers-

able or not (*/). We
shall see that later authorities have

adopted the stricter view.

The common law rule applied to a fire made out of

doors (for burning weeds or the like) as well as to fire in a

dwelling-house (s). Here too it looks as if negligence was

the gist of the action, which is described (in Lord Ray-
mond's "
as
report) case grounded upon the common
custom of the realm for negligently keeping his fire."
Semble if the fire were carried by sudden tempest it
y

would be excusable as the act of Grod. Liability for

domestic fires has been dealt with by statute, and a man
is not now
answerable for damage done by a fire which

began in his house or on his land by accident and without

negligence (a).
The use of fire for non-domestic purposes, if we may

Y. B. 2 Hen. IV. 18, pi. 5.

(x) ofAnne to a like effect; 1 Blackst.
(y) Blackstone (i. 431) seems to Comm. 431 and see per Cur. in
;

assume negligence as a condition Filliter v. It would

Phippard.
of liability. seem that even at common law the
(z) Tubervil or Tuberville v. Stamp, defendant would not be liable
1 Salk. 13, s. c. 1 Ld. Raym. 264. unless he knowingly lighted or
(a) 14 Geo. III. c. 78, s. 86, as kept some fire to begin with for ;

interpreted in Filliter v. Phippard otherwise how could it be described

(1847) 11 Q. B. 347, 17 L. J. Q. B. as ignis sum ?

89. There was an earlier statute

FF2
436 DUTIES OF INSURING SAFETY.

coin the phrase, remains a ground of the strictest respon-

sibility.

Carrying Decisions of our own time have settled that one who
firein
loco- brings fire into dangerous proximity to his neighbour's
motives.
property, in such ways as by running locomotive engines
on a railway without express statutory authority for their
use(), or bringing a traction engine on a highway (c),
does so at his peril. And a company authorized by statute
to run a steam-engine on a highway still does so at its peril
as regards the safe condition of the way(d).
It seems permissible to entertain some doubt as to the
historical foundation of this doctrine, and in the modern
practice of the United States it has not found accept-
ance (e).
In New York it has, after careful discussion,
been expressly disallowed (/).

(b) Jones v. Festiniog E. Co. (1868) case was not only itself decided by
L. K. 3 Q. B. 733, 37 L. J. Q. B. a Court of co-ordinate authority,
214. Here diligence was proved, but has been approved in the House
but the company held nevertheless of Lords Hammersmith R. Co. v.
;

liable. The rule was expressly Brand (1869) L. R. 4 H. L. at p.

stated to be an application of the 202 and see the opinion of Black-
;

wider principle of
Rylands v. burn J. at p. 197.
Fletcher ; see per Blackburn J. at (d) Sadler v. South Staffordshire,
p. 736. $c. Tramways Co. (1889) 23 Q. B.

(c)
Powell v. Fall (1880) 5 Q. B. Div. 17, 58 L. J. Q. B. 421 (car
Div. 597, 49 L. J. Q. B. 428. The ran off line through a defect in
use of traction engines on high- the points the line did not belong
:

ways isregulated by statute, but to the defendant company, who

not authorized in the sense of had runn'ng powers over it).

diminishing the owner's liability It appears to be held every-

(e)

for nuisance or otherwise see the ;

where that unless the original act
sections of the Locomotive Acts, is in itself unlawful, the gist of
1861 and 1865, in the judgment of the action see Cooley
is negligence ;

Mellor J. at p. 598. The dictum on Torts, 589594.

of Bramwell L. J. at p. 601, that (/) Losee v. Buchanan (1873) 51
Vaughan v. Taff Vale R. Co. (1860) N. Y. 476 the owner of a steam-
;

Ex. Ch. 5 H. & K

679, 29 L. J. boiler was held not liable, inde-
Ex. 247, p. 430, above, was wrongly pendently of negligence, for an
decided, is extra-judicial. That explosion which threw it into the
 FIRE-ARMS. 437

Loaded fire-arms are regarded

highly dangerousas Fire-

things, and persons dealing with them are answerahle for j) ix(m v
damage done by their explosion, even if they have used
apparently sufficient precaution. A
man sent his maid-
servant to fetch a flint-lock gun which was kept loaded,
with a message to the master of the house to take out the
priming first. This was done, and the gun delivered to
the she loitered on her errand, and (thinking, pre-
'girl ;

sumably, that the gun would not go off) pointed it in

sport at a child, and drew the trigger. The gun went off
and the child was seriously wounded. The owner was
held although he had used care,
liable, perhaps as much
care as would commonly be thought enough. " It was
incumbent on him who, by charging the gun, had made it
capable of doing mischief, to render it safe and innoxious.
This might have been done by the discharge or drawing of
the contents. The gun ought to have been so left as to be
out of reach of doing harm"(#).
all This amounts to
saying that in dealing with a dangerous instrument of this
kind the only caution that will be held adequate in point
of law is to abolish its dangerous character altogether.
Observe that the intervening negligence of the servant
(which could hardly by any ingenuity have been imputed
to her master as being in the course of her employment)
was no defence. Experience unhappily shows that if
loaded fire-arms are left within the reach of children or
fools, no consequence is more natural or probable than that

plaintiff's buildings. For the pre- (g) Dixon v. Sell (1816) 5 M. &
vious authorities as to fire, uni- S. 198,and in Bigelow L. C. 568. It
formly holding that in order to might have been said that sending
succeed the plaintiff must prove an incompetent person to fetch a
negligence, see at pp. 487-8. Ey- loaded gun was evidence of negli-
lands v. Fletcher is disapproved as gence (see the first count of the
being in conflict with the current declaration) ;
but that is not the
of American authority. ground taken by the Court (Lord
Ellenborough C. J. and Bay ley J.).
438 DUTIES OF INSURING SAFETY.

some such, person will discharge them to the injury of

himself or others.

a ^ e principle it is held that people sending goods

dangerous of an explosive or dangerous nature to be carried are
bound to give reasonable notice of their nature, and, if
they do not, are liable for resulting damage. So it was
held where nitric acid was sent to a carrier without

warning, and the carrier's servant, handling it as he

would handle a vessel of any harmless fluid, -was injured
by its escape (h). The same
has been applied in rule
British India to the case of an explosive mixture being
sent for carriage by railway without warning of its

character, and exploding in the railway company's office,

where it was being handled along with other goods (i) ;

and it has been held in a similar case in Massachusetts

that the consignor's liability is none the less because the

danger of the transport, and the damage actually resulting,

have been increased by another consignor independently
sending other dangerous goods by the same conveyance (k).

Gas Gras (the ordinary illuminating coal-gas) is not of itself.

escapes. ,1 i -,i i

perhaps, a dangerous thing, but with atmospheric air forms

a highly dangerous explosive mixture, and also makes
the mixed atmosphere incapable of supporting life (/) .

(k) Farrant v. Barnes (1862) 11 ordered by one customer of two

C. B. N. S. 553, 31 L. J. C. P. separate makers, and by them
137. The duty seems to be ante- separately consigned to the rail-
cedent, not incident, to the contract way company without notice of
of carriage. their character : held on demurrer
(i) Lyell v. Ganga Dai, I. L. R. that both manufacturers were
1 All. 60. rightly sued in one action by the
(k}Boston $ Albany JR. JR. Co. company).
v. Shanty (1871) 107 Mass. 568 ; (I) See Smith v. Boston Gas Light
("dualin," a nitro- glycerine com- Co., 129 Mass. 318.

pound, and exploders, had been

 EXPLOSIVES AND POISONS. 430

Persons undertaking to deal with it are therefore bound,

at all events, to use all reasonable diligence to prevent an

escape which may have such results. gas-fitter left anA

imperfectly connected tube in the place where he was
working under a contract with the occupier; a third
person, a servant of that occupier, entering the room with
a light in fulfilment of his ordinary duties, was hurt by an

explosion due to the escape Of gas from the tube so left ;

"
the gas-fitter was held liable as for a misfeasance inde-

pendent of contract" (m).

Poisons can do as much mischief as loaded fire-arms or Poisonous

gs '

explosives, though the danger and the appropriate precau-

tions are different. Winches-
/*
Awholesale druggist in New York purported to sell
extract of dandelion to a retail druggist. The thing
delivered was in truth extract of belladonna, which by the

negligence of the wholesale dealer's assistant had been

wrongly labelled. By the retail druggist this extract was
sold to a country practitioner, and by him to a customer

who took it as and for extract of dandelion, and thereby

was made seriously ill. The Court of Appeals held the
"
wholesale dealer liable to the consumer. The defendant
was a dealer in poisonous drugs .... The death or great
bodily harm of some person was the natural and almost
inevitable consequence of the sale of belladonna by means
of the false label." And the existence of a contract
between the defendant and the immediate purchaser from
him could make no difference, as its non-existence would
have made none. "The plaintiff's injury and their remedy
would have stood on the same principle, if the defendant
had given the belladonna to Dr. Foord" (the country

(m) Parry v. Smith (1879) 4 C. (Lopes J.). Negligence was found

P. I). 325, 48 L. J. C. P. 731 as a fact.
440 DUTIES OF INSURING SAFETY.

practitioner) "without price, or if he had put it in his

shop without his knowledge, under circumstances which

would probably have led to its sale" or administration
" "
without sale on the faith of the label (ri).
This case
has been thought in England to go too far ;
but it is hard
to see in what goes farther than Dixon v. Bell.
respect it

So far as the cases are dissimilar, the damage would seem

to be not more but less remote. If one sends belladonna
into the world labelled as dandelion (the two extracts being

otherwise distinguishable only by minute examination), it

is a more than probable consequence that some one will

take it as and for dandelion and be the worse for it and :

this without any action on the part of others necessarily

involving want of due care (o).

It can hardly be said that a wrongly labelled poison,
whose true character is not discoverable by any ordinary
examination such as a careful purchaser could or would
make, is in itself less dangerous than a loaded gun. The
event, indeed, shows the contrary.

Difficulties Nevertheless difficulties are felt in England about

England : admitting this application of a principle which in other
George v. directions is both more widely and more strictly applied in
Skivington. . .

thiscountry than in the united States (p). In 1869 the

Court of Exchequer made a rather hesitating step towards
it,putting their judgment partly on the ground that the
dispenser of the mischievous drug (in this case a hair wash)
knew that it was intended to be used by the very person
whom it in fact injured (q). The cause of action seems to

(n) Thomas v. Winchester (1852) (p) See per Brett M. B., Heaven
6 N. Y. 397, Bigelow L. C. 602. v. Fender (1883) 11 Q. B. Div. at
(o)
The jury found that there p. 514, in a judgment which itself
was not any negligence on the endeavours to lay down a much
part of the intermediate dealers ; wider rule.
the Court, however, were of opinion (q) George v. Skivington (1869)
that this was immaterial. L. R. 5 Ex. 1, 38 L. J. Ex. 8.
 DANGEROUS INSTRUMENTS. 441

have been treated as in the nature of deceit, and Thomas v.

Winchester does not seem to have been known either to

counsel or to the Court. In the line actually taken one

sees the tendency to assume that the ground of liability,
if any, must be either warranty or fraud. But this is
erroneous, as the judgment in Thomas v. Winchester care-

fully and clearly shows. Whether that case was well

decided appears to be a perfectly open question for our
courts (r). In the present writer's opinion it is good law,
and ought to be followed. Certainly it comes within the
language of Parke B. in Longmeid v. Holliday (), which
when any one delivers "
does not deny legal responsibility
to another without notice an instrument in its nature

dangerous under particular circumstances, as a loaded gun

which he himself has loaded, and that other person to whom
it is injured thereby or if he places it in a
delivered is ;

situation easily accessible to a third person who sustains

damage from it." In that case the defendant had sold a

dangerous thing, namely an ill-made lamp, which exploded
in use, but it was found as a fact that he sold it in good

faith, and it was not found that there was any negligence
on his part. As lamps are not in their nature explosive, it

was quite rightly held that on these facts the defendant

could be liable only ex contractu, and therefore not to any

person who could not sue on his contract or on a warranty

therein expressed or implied.

(r)
Dixon v. Sell (1816) 5 M. & Court was somewhat astute to
S. 198, Bigelow L. C. 568 (supra, avoid discussing that principle, and

p. 437), has never been disapproved declined to commit itself. Dixon

that we know of, but has not been v. Bell is cited by Parke B. as a
so actively followed that the Court strong case, and apparently with
of Appeal need be precluded from hesitating acceptance, in Longmeid
free discussion of the principle v. Holliday (1851) 6 Ex. 761, 20
involved. In Langridge v. Levy L. J. Ex. 430.
(1837) 2 M. & W. at p. 530, the () 20 L. J. Ex. at p. 433.
4 12 DUTIES OF INSURING SAFETY.

Duties of We now come to the duties imposed by law on the

C S
of ffid- occupiers of buildings, or persons having the control of

introspect
^ner structures intended for human use and occupation,
of safe in respect of the safe condition of the building or structure.
repair.
Under this head there are distinctions to be noted both as

to the extent of the duty, and as to the persons to whom

it is owed.

Extent of / The duty founded not on ownership, but on possession,

is

in other words, on the structure being maintained under

the control and the purposes of the person held
for

answerable. It goes beyond the common doctrine of re-

sponsibility for servants, for the occupier cannot discharge

himself by employing an independent contractor for the
maintenance and repair of the structure, however careful
he may be in the choice of that contractor. Thus the
l duty described as being impersonal rather than personal.
is

Personal diligence on the part of the occupier and his

servants is immaterial. The
structure has to be in a^reason-

ably safe condition, so far as the exercise of reasonable

care and skill can make it so (i). To that extent there is

a limited duty of insurance, as one may call it, though not

a strict duty of insurance such as exists in the classes of
cases governed by glands v. Fletcher.

Modem Theseparation of this rule from the ordinary law of

date of the -i
i t i L *i. ii i ~\

settled negligence, which is inadequate to account tor it, has been

rule:
fa Q work of quite recent times. As lately as 1864 (u) the

(t]
Per Montague Smith J. in 39 L. J. C. P. 365.
Ex. Ch., Francis v. Cockrell (1870) () Sullivan v. Waters, 14 Ir. C.
Ex. Ch. L. R. 5 Q. B. 501, 513, L. R. 460. See, however, Quar-
39 L. J. Q. B. 291. Other cases man v. Burnett (1840) 6 M. & "W.

well showing this point are PicJcard at p. 510, where there is a sugges-
v. Smith, 10 C. B. N. S. 470 John ;
tion of the modern rule.
v. Bacon (1870) L. R. 5 C. P. 437,
 CONDITION OF BUILDINGS. 443

Lord Chief Baron Pigot (of Ireland), in a very careful

judgment, confessed the discovering any

difficulty of

general rule at all. Two years later judgment of the

a
Court of Common Pleas, delivered by Willes J., and con-
firmed by the Exchequer Chamber, gave us an exposition
which has since been regarded on both sides of the Atlantic
as a leading authority (x). The was a journey-
plaintiff
man employed to
gas-fitter, examine and test some new
burners which had been supplied by hisemployer for use
in the defendant's sugar-refinery. While on an upper
floor of the building, he fell through an unfenced shaft
which was used in working hours for raising and lowering
sugar. It was found as a fact that there was no want of
reasonable care on the plaintiff's part, which amounts to

saying that even to a careful person not already acquainted

with the building the danger was an unexpected and con-
cealed one. The Court held that on the admitted facts
the plaintiff was in the building as " a person on lawful

business, in the course of fulfilling a contract in which

both the plaintiff and the defendant had an interest, and
not upon bare permission." They therefore had to deal
with the of law
" as to the
general question duty of the

occupier of a building with reference to persons resort-

ing thereto in the course of business, upon his invitation
express or implied. The common case is that of a cus-
tomer in a shop but : it is obvious that this is only one of
a class .....
" The class to which the customer
belongs includes per-
sons who go not as mere volunteers, or licensees, or guests,
or servants, or persons whose employment is such that

danger may be considered as bargained for, but who go

(x) Indermaur v. Dames (1866) 181, constantly cited in later cases,

L. B. C. P. 274, 35 L. J. C. P.
1 and reprinted in Bigelow L. C.
184, 2 C. P. 311, 36 L. J. C. P.
444 DUTIES OF INSURING SAFETY.

upon business which concerns the occupier, and upon his

invitation, express or implied.

" we
And, with respect to such a visitor at least, consider

it settled law, that he, using reasonable care on his part

for his own safety, is entitled to expect that the occupier
shallon his part use reasonable care to prevent damage
from unusual danger, which he knows or ought to know ;

and that, where there is evidence of neglect, the question

whether such reasonable care has been taken, by notice,
lighting, guarding or otherwise, and whether there was
contributory negligence in the sufferer, must be determined
"
by a jury as a matter of fact (y).
The Court goes on to admit that "there was no absolute
duty to prevent danger, but only a duty to make the place
as little dangerous as such a place would reasonably be,

having regard to the contrivances necessarily used in

carrying on the business." On the facts they held that
" there was
evidence for the jury that the plaintiff was in
the place by the tacit invitation of the defendant, upon
business in which he was concerned; that there was by
reason of the shaft unusual danger, known to the defen-
dant and that the plaintiff sustained damage by reason
;

of that danger, and of the neglect of the defendant and

his servants to use reasonably sufficient means to avert or
warn him of it." The judgment in the Exchequer Cham-
ber (z) is little more than a simple affirmation of this.

Persons It is hardly needful to add that a customer, or other

safety. person entitled to the like measure of care, is protected
not only while he is actually doing his business, but while
he is entering and leaving (a). And the amount of care

(y) L. K. 1 C. P. at p. 288. 1 E. B. & E. 168, 27 L. J. Q. B.

(z) L. R. 2 0. P. 311. 315, treated as a very plain case,

(a) Chapman v. Rothwell (1858) where a trap-door was left open in
 DUTY TO CUSTOMERS, ETC. 445

required is by Willes J. that little

so carefully indicated

remains to be said on that score. The recent cases are

important chiefly as showing in respect of what kinds of
property the duty exists, and what persons have the same
rights as a customer. In both directions the law seems
to have become, on the whole, more stringent in the present
generation. With regard to the person, one acquires this
right to safety by being upon the spot, or engaged in work
on or about the property whose condition is in question, in
the course of any business in which the occupier has an
interest. It is not necessary that there should be any
direct or apparent benefit to the occupier from the par-
ticular transaction (b). Where gangways for access to

ships in a dock were provided by the dock company, the

company has been held answerable for their safe condi-

tion to a person having lawful business on board one of

the ships ;
for the providing of access for all such persons
ispart of a dock-owner's business; they are paid for it
by the owners of the ships on behalf of all who use it (c).
A workman was employed under contract with a ship-
owner dry dock, and the
to paint his ship lying in a

dock-owner provided a staging for the workmen's use a ;

rope by which the staging was supported, not being of

proper strength, broke and let down the staging, and the
man fell into the dock and was hurt; the dock-owner
was held liable to him (d). It was contended that the
staging had been delivered into the control of the ship-
owner, and became as it were part of the ship but this ;

was held no reason for discharging the dock-owner from

the floor of a passage leading to (c) Smith v. London $ St. Katha-

the defendant's office. rine Docks Co. (1868) L. R. 3 C. P.

(b) See Holmes v. N. E. R. Co. 326, 37 L. J. C. P. 217 (Bovill C. J.

(1869-71) L. R. 4 Ex. 254, in Ex. and Byles J., dub. Keating J.).
Ch. L. R. 6 Ex. 123, 40 L. J. Ex. (d) Heaven Fender (1883) 11
v.
121 ; White v. France (1877) 2 C. P. Q. B. Div. 503, 52 L. J. Q. B. 702.
D. 308, 46 L. J. C. P. 823.
446 DUTIES OF INSURING SAFETY.

responsibility for the condition of the staging as it was

delivered. Persons doing work on ships in the dock
" must be considered as invited
by the dock-owner to use
the dock and all appliances provided by the dock-owner
"
as incident to the use of the dock (e).

Duty in The possession of any structure to which human beings

carriages,
are intended to commit themselves or their property,
ships, &c.
'

ammat e or inanimate, entails this duty on the occupier,

or rather controller. It extends to gangways or staging
in a dock, as we have just seen ;
to a temporary stand put
up for seeing a race or the like (/) ;
to carriages tra-

velling on a railway or road (#), or in which goods are

despatched (h) to ships (/) ;

to wharves, in respect of the
;

safety of the frontage for ships moored at or approaching

the wharf (/) and to market-places (k).
;

In the case of a wharfinger he is bound to use reason-

able care to ascertain whether the bed of the harbour or

(e)
Per Cotton and Bowen L. JJ. contractors as well as servants,
at p. 515. The judgment of Brett (g] Foulkes v. Metrop. District R.
M. R. attempts to lay down a wider Co. (1880) 5 C. P. Div. 157, 49
principle with which the Lords L. J. C. P. 361 ; Moffatt v. Bateman
Justices did not agree. See p. 375, (1869) L. R. 3 P. C. 115.
above. It must be taken as a fact, (K) Elliott v. Hall (1885) 15 Q.

though it is not clearly stated, B. D. 315, 54 L. J. Q. B. 518.

that the defective condition of the The seller of coals sent them to

rope might have been discovered the buyer in a truck with a dan-

by reasonably careful examination gerously loose trap -door in it, and

when the staging was put up. the buyer's servant in the course

(/) Francis v. CocJcrell (1870) Ex. of unloading the truck fell through
Ch. L. R. 5 Q. B. 184, 501, 39 and was hurt.
L. J. Q. B. 113, 291. The plain- (t) Hayn v. Culliford (1879) 4
tiffhad paid money for admission, C. P. Div. 182, 48 L. J. C. P. 372.
therefore there was a duty ex con- (/) The Moorcock (1889) 14 P.

tractu, but the judgments in the Div. 64 ;

58 L. J. P. 73 ;
The
Ex. Ch., see especially per Martin Calliope (1889) 14 P. Div. 138 ;
58
B., also affirm a duty independent L. J. P. 76.
of contract. This is one of the (K) LaxCorporation of Dar-
v.

most explicit authorities showing lington (1879) 5 Ex. Div. 28, 49

that the duty extends to the acts of L, J. Ex. 105.
 DUTY TO PASSENGERS, ETC. 447

river adjacent is in a safe condition to be used by a vessel

coming to discharge at his wharf, even when it does not

belong to him and he has no control over it(/). For

although the state of the ground be not within his control,
it is a matter more ascertainable by him than by the ship-
owner.
A railway passenger using one company's train with
a ticket issued by another company under an arrangement
made between the companies for their common benefit is

entitled, whether or not he can be said to have contracted

with the first-mentioned company, to reasonably safe pro-
vision for his conveyance, not only as regards the construc-
tion of the carriage itself, but as regards its fitness and
safety in relation to other appliances (as the platform of a
station) in connexion with which it is intended to be
used (?/z). Where goods are lawfully shipped with the

shipowner's consent, it is the shipowner's duty (even if

he is not bound to the owner by any contract) not to let
other cargo which will damage them be stowed in contact
with them (w). Owners of a cattle-market are bound to
leave the market-place in a reasonably safe condition for
the cattle of persons who come to the market and pay toll

for its use(o).

(I)
The Moorcock, note (j) In
.
good summary of the law, as far
The Calliope the plaintiffs were in- as goes, is given in the argu-
it

vited and, indeed, required by the ment of Cave J. (then Q. C.) for

defendants, under a contract, to the plaintiff at p. 31. The ques-

discharge at their wharf. tion of the danger being obvious

(m) Foulkes Metrop. District

v. was considered not open on the
R. Co. (1880) 5 C. P. Div. 157, 49 appeal if it had been, qu. as to
;

L. J. C. P. 361. the result, per Bramwell L. J. It

(ri) Hayn v. Culliford (1879) 4 C. has been held in Minnesota (1889)
P. Div. 182, 48 L. J. C. P. 372. that the owner of a building fre-

(o) Lax Corporation of Dar-

v. quented by the public is bound not
lington (1879) 5 Ex. Div. 28, 49 to allow a man of known dangerous
L. J. Ex. 105 (the plaintiff's cow temper to be employed about the
was killed by a spiked fence round building Dean v. St. Paul Union
:

a statue in the market place). A Depot Co. 29 Am. Law Keg. 22.
448 DUTIES OF INSURING SAFETY.

Limits of In the various applications we have mentioned, the duty

does not extend to defects incapable of being discovered

by the exercise of reasonable care, such as latent flaws in

metal (j;) ; though it does extend to all such as care and
skill (not merely care and skill on the part of the defen-
dant) can guard against (q) .

Again, when the builder of a ship or carriage, or the

maker of a machine, has delivered it out of his own pos-
session and control to a purchaser, he is under no duty to

persons using it as to its safe condition, unless the thing

was in itself of a noxious or dangerous kind, or (it seems),

unless he had actual knowledge of its being in such a state
as would amount to a concealed danger to persons using it
in an ordinary manner and with ordinary care(r).

Voientmon
Liability under the rule in Indermaur v. Dames (s) may
be avoided not only by showing contributory negligence
in the plaintiff, but by showing that the risk was as well
known to him as to the defendant, and that with such
knowledge he voluntarily exposed himself to it (t) ;
but
this will not excuse the breach of a positive statutory

duty(w).
Readhead v. Midland R. Co.
(p)
Div. 102, 46 L. J. Q. B. 257.

(1869) Ex. Ch. L. R.

4 Q. B. 379 ; (?) Hyman v. Nye (1881) 6 Q. B.
a case of contract between carrier D. at p. 687.
and passenger, but the principle (r) IVinterbottom v. Wright, 10
isthe same, and indeed the duty M. & "W. 109 ;
Cottis v. Selden

may be put on either ground, see (1868) L. R. 3 C. P. 495, 37 L. J.

Hyman v. Nye (1881) 6 Q. B. D. C. P. 233 ;
Losee v. Clute, 51 N. Y.
685, 689, per Lindley J. This does 494.
not however qualify the law as to (*) P. 443, above,
the seller's implied warranty on the (t) Thomas v. Quartermaine, 18
sale of a chattel for a specific pur- Q. B. Div. 685, 56 L. J. Q. B. 340.
pose ;
there the warranty is abso- (u) Dicta of L. JJ. ibid., and
lute that the chattel is reasonably Baddeley v. Earl Granvillc (1887) 19
fit for that purpose, and there is Q. B. D. 423, 56 L. J. Q. B. 501.
no exception of latent defects : See further Yarmouth v. France, ib.

Randall v. Newson (1877) 2 Q. B. 647, and p. 150, above.

 CONDITION OF WAYS. 449

Occupiers of fixed property are under a like duty Duty

towards persons passing or being on adjacent land by
their invitation in the sense above mentioned, or in the
exercise of an independent right.
In Barnes v. Ward(x), the defendant, a builder, had
left the area of an unfinished house
open and unfenced.
A person lawfully walking after dark along the public
path on which the house abutted fell into the area and
was killed. An action was brought under Lord Camp-
bell's Act, and the case was twice argued the main point
;

for the defence being that the defendant had only dug a
hole in his own land, as he lawfully might, and was not
under any duty to fence or guard it, as it did not interfere
with the use of the right of way. The Court held there
was a good cause of action, the excavation being so close
to the public way as to make it unsafe to persons using it
with ordinary care. The making of such an excavation
amounts " even
to a public nuisance though the danger
consists in the risk of .accidentally deviating from the

road." Lately it has been held that one who by lawful

authority diverts a public path is bound to provide reason-

able means to warn and protect travellers against going

astray at the point of diversion (y) .

In Corby v. Hill(z)the plaintiff was a person using a

private way with the consent of the owners and occupiers.

The defendant had the like consent, as he alleged, to put
slates and other materials on the road. No light or other
safeguard or warning was provided. The plaintiff's horse,

(x) 9 C. B. 392, 19 L. J. C. P. line, but did not fence off the old
195 (1850); cp. D. 9. 2, ad leg. direction of the path; plaintiff,
Aquil. 28. walking after dark, followed the
(y) Hurst v. Taylor (1885) 14 old direction, got on the railway,
Q. B. D. 918, 54 L. J. Q. B. 310 ;
and fell over a bridge,
defendants, railway contractors, (2) 4 C. B. N. S. 556, 27 L. J.
had (within the statutory powers) C. P. 318 (1858).
diverted a footpath to make the

P. G G
450 DUTIES OF INSURING SAFETY.

being driven on the road after dark, ran into the heap
of materials and was injured. It was held immaterial
whether the defendant was acting under licence from the
owners or not. If not, he was a mere trespasser but the ;

owners themselves could not have justified putting a con-

cealed and dangerous obstruction in the way of persons to
whom they had held out the road as a means of access (a).
Here the plaintiff was only a licensee, but
(it seems) (b)
while the licence was in force he was entitled not to have
the condition of the way so altered as to set a trap for him.
The case, therefore, marks exactly the point in which a
licensee's condition is better than a trespasser's.

Presump- Where damage is done by the falling of objects into

negligence a highway from a building, the modern rule is that the

loquitur), accident, in the absence of explanation, is of itself evidence

.
of negligence. In other words, the burden of proof is on
the occupier of the building. If he cannot show that the
accident was due to some cause consistent with the due

repair and careful management of the structure, he is

liable. The authorities, though not numerous, are suffi-

cient to establish the rule, one of them being the decision

of a Court of Appeal. In Byrne v. Boadle (c)
a barrel of
flour fell from a window in the defendant's warehouse
in Liverpool, and knocked down the plaintiff, who was
lawfully passing in the public street. There was no
evidence to show how or by whom the barrel was being
handled. The Court said this was enough to raise against

(a) Cp. Sweeny

v. Old Colony $ to use the road for access to a public

Newport It. Co. (1865) 10 Allen

.
building(the Hanwell Lunatic
(Mass.) 368, and Bigelow L. C. Asylum) did not amount to an
660. "invitation" in the special sense
(b) The language of the judg- of this class of cases.
ments leaves it not quite clear (c)
2 H. & C. 722, 33 L. J. Ex.
whether the continued permission 13, and in BigelowL. C. 578 (1863).
 HES IPSA LOQ UITUIi. 45 ]
the defendant a presumption of negligence which it was
for him to rehut. "It is the duty of persons who keep
barrels in a warehouse to take care that they do not
roll out. ... A barrel could not roll out of a warehouse
without some negligence, and to say that a plaintiff who
is injured by it must call witnesses from the warehouse

to prove negligence seems to me preposterous. So in the

building or repairing a house, or putting pots on the
chimneys, if a person passing along the road is injured
by something falling upon him, I think the accident
"
alone would be prima facie evidence of negligence (d).
This was followed, perhaps extended, in Kearney v.
London, Brighton and South Coast Railway Co.(e). There
as the plaintiff was passing along a highway spanned
by a railway bridge, a brick fell out of one of the
piers of and struck and injured him.
the bridge A
train had passed immediately before. There was not
any evidence as to the condition of the bridge and brick-
work, except that after the accident other bricks were
found to have fallen out. The Court held the maxim
" res " "
ipsa loquitur to be applicable. The defendants
were under the common law liability to keep the bridge
in safe condition for the public using the highway to pass
and when " a brick
under it ;" out of the pier of the
fell

bridge without any assignable cause except the slight

vibration caused by a passing train," it was for the de-
fendants to show, they could, that the event was con-
if

sistent with due diligence having been used to keep the

bridge in safe repair (/). This decision has been followed,

in the stronger case of a whole building falling into the

(d)Per Pollock C. B. Cp. Scott (e)

Ex. Ch. L. R. 6 Q. B. 759,
v. London Dock Co. (1865) 3 H. & 40 L. J. Q. B. 285 (1871).
C. 596, 34 L. J. Ex. 220, p. 384, (/) Per Cur. L. E. 6 Q. B. at
above. pp. 761, 762.
GG2
452 DUTIES OF INSURING SAFETY.

"
street, in the State of New York.
Buildings properly
"
constructed do not fall without adequate cause (g).
In a later case (h) the occupier of a house from which a
lamp projected over the street was held liable for damage
done by its fall, though he had employed a competent
person (not his servant) to put the lamp in repair: the
fall was in fact due to the decayed condition of the

attachment of the lamp to its bracket, which had escaped

notice. " It was the defendant's to make the duty lamp
reasonably safe, the contractor failed to do that ....
therefore the defendant has not done his duty, and he is
"
liable to the plaintiff for the consequences (i). In this
case negligence on the contractor's part was found as a
fact.

Combining the principles affirmed in these authorities,

we see that the owner of property abutting on a highway
is under a positive duty to keep his property from being a
cause of danger to the public by reason of any defect
either in structure, repair, or use and management, which
reasonable care and skill can guard against.

Distinc- But where an accident happens

rr in the course of doing
tions. .

on fixed property work which is proper of itself, and not

usually done by servants, and there is no proof either that
the work was under the occupier's control or that the acci-
dent was due to any defective condition of the structure
itself with reference to its ordinary
purposes, the occupier
is not liable (k). In other words, he does not answer for
the care or skill of an independent and apparently corn-

it

(ff)
Mullen v. St. John, 57 N. Y. It. Co. (1869) L. R. 4 Q. B. 693,
667, 569. 38 L. J. Q. B. 241 ;
a decision on
Tarry v. Ashton (1876) 1 Q.
(h) peculiar facts, where perhaps a
B. D. 314, 45 L. J. Q. B. 260. very little more evidence might
(i) Per Blackburn J. at p. 319. have turned the scale in favour of

(k) Welfare v. London $ Brighton the plaintiff.

 POSITION OF LICENSEES. 453

petent contractor in the

doing of that which, though
connected with the repair of a structure for whose con-
dition the occupier does answer, is in itself merely incident
to the contractor's business and under his order and
control.

There are cases involving principles and considerations

very similar to these, but concerning the special duties of
adjacent landowners or occupiers to one another rather
than any general duty to the public or to a class of persons.
We must be content here to indicate their existence,

though in practice the distinction is not always easy to

maintain (/).

Thus far we have spoken of the duties owed to persons Position of

1i pf^n Sf^pfl
who are brought within these risks of unsafe condition or

repair by the occupier's invitation on a matter of common

interest, or are there in the exercise of a right. We have
still note the plight of him who comes on or near
to
"
another's property as a bare licensee." Such an one
appears to be (with the possible exception of a mortgagee
in possession) about the least favoured in the law of men
who are not actual wrong-doers. He must take the pro-
perty as he finds it, and is entitled only not to be led into
"
danger by something like fraud" (m).
Persons who by the mere gratuitous permission of
owners or occupiers take a short cut across a waste piece
of land (n), or pass over private bridges (o), or have the
run of a building (p), cannot expect to find the land free

(0 See Sower v. Peate (1876) 1 (n) Hounsell v. Smyth (1860) 7 I

Q. B. D. 321, 45 L. J. Q. B. 446 ;
C. B. N. S. 731, 29 L. J. C. P. 203.
Hughes v. Percival (1883) 8 App. (o) Gautret v. Egerton (1867) L.
Ca. 443, 52 L. J. Q. B. 719 and ;
R. 2 C. P. 371, 36 L. J. C. P. 191.

cp. Gorham v. Gross, 125 Mass. 232. (p) Sullivan v. Waters (1864) 14

(m) Willes J., Gautret v. Egerton Ir. C. L. R. 460.

(1867) L. R. 20. P. at p. 375.

454 DUTIES OF INSURING SAFETY.

from holes or ditches, or the bridges to be in safe repair,

or the passages and stairs to be commodious and free from

dangerous places. If the occupier, while the permission

continues, does something that creates a concealed danger

to people availing themselves of it, he may well be
liable (q) . And he would of course be liable, not for
failure in a special duty, but for wilful wrong, if he pur-
posely made
property dangerous to persons using
his

ordinary care, and then held out his permission as an

inducement to come on it.
Apart from this improbable
case, the licensee's rights are measured, at best, by the
actual state of the property at the time of the licence.
"HI dedicate a way to the public which is full of ruts
and holes, the public must take it as it is. If I dig a pit
in it, I
may be liable for the consequences :
but, if I do

nothing, I am not" (r).

The occupier of a yard in which machinery was in
motion allowed certain workmen (not employed in his own
business) to use, for their own convenience, a path crossing
it. This did not make it duty to fence the machinery
his

at all, or if he did so to fence it sufficiently though he ;

might have been liable if he had put up an insecure guard

which by the false appearance of security acted as a trap ($) .

The plaintiff, by having permission to use the path, had

not the right to find it in any particular state of safety or

convenience.
" Permission involves
leave and licence, but it
gives no
right. If I avail myself of permission to cross a man's
land I do so by virtue of a licence, not of a right. It is
an abuse of language to call it a right it is an excuse or :

(q) Corby v. Hill (1858) 4 C. B. (r) WiUes J., L. R. 2 C. P. at

N. S. 556, 27 L. J. C. P. 318, p. p. 373.
449, above. () Bolch v. Smith (1862) 7 H. &
N. 736, 31 L. J. Ex. 201.
 POSITION OF LICENSEES. 455

licence, so that the party cannot be treated as a tres-

passer" (t). In the language of Continental jurisprudence,

there is no question of culpa between a gratuitous licensee
and the licensor, as regards the safe condition of the pro-
perty to which the licence applies. Nothing short of dolus
will make the licensor liable (u] .

Invitation a word applied in common speech to the Host and

is

relation of host and guest. But a guest (that is, a visitor *

who does not pay for his entertainment) has not the bene-
fit of the legal doctrine of invitation in the sense now
before us. He is in point of law nothing but a licensee.
The reason given is that he cannot have higher rights than
a member of the household of which he has for the time

being become, as it were, a part (x) All he is entitled to.

is not to be led into a danger known to his host, and not

known or reasonably apparent to himself.

the same principle, a man who offers another a seat
On
in his carriage is not answerable for an accident due to

any defect in the carriage of which he was not aware (y) .

(t) Martin B., 7 H. & N. at p. might not have well been held to
745. Batchelor v. Fortcscuc (1883) be in the nature of a trap. The
11 Q. B. Div. 474, 478, seems rather defect was a non-apparent one,
to stand upon the ground that the and the landlord knew of it.

plaintiff had gone out of his way Cp. Blakemore v. Bristol and
(u)
to create the risk for himself. As Exeter M. Co. (1858) 8 E. & B.
between himself and the defendant, 1035, 27 L. .T. Q. B. 167, where it
he had no title at all to be where seems that the plaintiff's intestate
he was. Cp. D. 9. 2. ad leg. Aquil. was not even a licensee ;
but see 11
31, ad Jin. "culpa ab eo exigenda Q. B. D. 516.
non est, cum divinare non potuerit (x) Southcote v. Stanley (1856) 1
an per eum locum aliquis transi- H. & N. 247, 25 L. J. Ex. 339.
turussit." In/my v. Hedges (1882) But quaere if this explanation be
9 Q. B. D.80, the question was not obscurum per obscurius. Cp.
more of the terms of the contract Abraham v. Reynolds, 5 H. & N.
between landlord and tenant than at p. 148, where the same line of
of aduty imposed by law. Quaere^ thoitght appears,
whether in that case the danger (y) Moffatt v. Bateman (1869) L.
to which the tenant was exposed B. 3 P. C. 115.
456 DUTIES OF INSURING SAFETY.

Liability
PI*
It may probably be assumed that a licensor is answer-

for"ordi- a ^e to the licensee for ordinary negligence (s), in the

narynegli- sense ft^ }{ s own ac^ or omission will make him liable if
it is such that it would create liability as between two
persons having an equal right to be there for example, if :

J. S. allows me to use his private road, it will hardly be

said that, without express warning, I am to take the risk

of J. S. driving furiously thereon. But the whole subject
of a licensee's rights and risks is still by no means free
from difficulty.

Liability It does not appear to have been ever decided how far, if
of owner
not in at all, an owner of property not in possession can be sub-
occupa-
tion? ject to the kind of duties we have been considering. We
have seen that in certain conditions he may be liable for
nuisance But, since the ground of these special duties
(a).

regarding safe condition and repair is the relation created

by the or tacit "
occupier's express it be
invitation," may
doubted whether the person injured can sue the owner in
the first instance, even if the defect or default by which he
suffered is, as between owner and occupier, a breach of the
owner's obligation.

(2) Horace Smith 38, Campbell (a) See p. 372, above. Campbell,
119. pp. 26, 27.
 457

CHAPTEE XIII.

SPECIAL RELATIONS OF CONTRACT AND TORT.

THE original theory of the common law seems to have Original

been that there were a certain number of definite and forms of
acton -

mutually exclusive causes of action, expressed in appro-

priate forms. The test for ascertaining the existence or

non-existence of a legal remedy in a given case was to see

whether the facts could be brought under one of these
forms. Not only this, but the party seeking legal redress
had to discover and use the right form at his peril. So
had the defendant if he relied on any special ground of
defence as opposed to the general issue. If this theory had
been strictly carried out, confusion between forms or causes
of action would not have been possible. But strict ad-
herence to the requirements of such a theory could be

kept up only at the price of intolerable inconvenience.

Hence not only new remedies were introduced, but relaxa-
tions of the older definitions were allowed. The number
of cases inwhich there was a substantial grievance without
remedy was greatly diminished, but the old sharply drawn
lines of definition were overstepped at various points, and

became obscured. Thus different forms and causes of

action overlapped. In many cases the new form, having
been introduced for greater practical convenience, simply
took the place of the older, as an alternative which in prac-
tice was always or almost always preferred but in other
:

cases one or another remedy might be better according to

458 SPECIAL RELATIONS OF CONTRACT AND TORT.

the circumstances. Hence different remedies for similar

or identical causes of action remained in use after the

freedom of choice had been established with more or less

difficulty.
On the debateable ground thus created between those
states of factwhich clearly give rise to only one kind of
action and those which clearly offered an alternative, there
arose a new kind of question, more refined and inde-
terminate than those of the earlier system, because less
reducible to the test of fixed forms.

Actions on The
great instrument of transformation was the intro-
f n f* PS ^f1
duction of actions on the case by the Statute of West-
minster (a). Certain types of action on the case became in
effect new and well recognized forms of action. But it was
never admitted that the virtue of the statute had been
exhausted, and it was probably rather the timidity of

pleaders than the unwillingness of the judges that pre-

vented the development from being even greater than it was.
It may be asked in this connexion why some form of
action on the case was not devised to compete with the
jurisdiction of the Court of Chancery in enforcing trusts.

An action on the case analogous to the action of account,

if not the action of account itself, might well have been
held to lieagainst a feoffee to uses at the suit of cestui que
use. Probably the reason is to be sought in the inadequacy
of the common law
remedies, which no expansion of plead-
ing could have got over. The theory of a system of equit-
able rights wholly outside the common law and its process,
and inhabiting a region of mysteries unlawful for a common
lawyer to meddle with, was not the cause but the conse-
quence of the Court of Chancery's final triumph.

(a) 13 Edw. I., c. 24.

 CAUSES OF ACTION. 459

The history of the Roman leyis actioncs may in a general

way be compared with that of common law

pleading in its
earlier stages ;
and it may be found that the praetorian
actions have not less in common with our actions on
the case than with the remedies peculiar to courts of

equity, which our text-writers have habitually likened

to them.

Forms of action are now

abolished in England. But Causes of
the forms of action were only the marks and appointed modern
'1
"
trappings of causes of action and to maintain an action tioiTaf
;

there must still be some cause of action known to the law. them as
founded on
Where there is an apparent no longer
alternative, we are contract

bound to choose at our peril, and at the very outset, on

which ground we will proceed, but we must have at least
one definite ground. The question, therefore, whether any
cause of action is raised facts is as
important as
by given
ever it was. The question whether there be more than
one is not as a rule material in questions between the
same parties. But it may be (and has been) material
under exceptional conditions : and where the suggested
distinct causes of action affect different parties it may still

be of capital importance.
In modern English practice, personal (b) causes of action^
cognizable by the superior courts of common law (and now
by the High Court in the jurisdiction derived from them)
have been regarded as arising either out of contract or out
of wrongs independent of contract. This division was no
doubt convenient for the working lawyer's ordinary uses,
and it received the high sanction of the framers of the
Common Law Procedure Act, besides other statutes dealing
with procedure. But it does not rest on any historical

(b} I do not think it was ever attempted to bring the real actions under
this classification.
400 SPECIAL RELATIONS OF CONTRACT AND TORT.

authority, nor can be successfully defended as a scientific

it

dichotomy. In fact the historical causes above mentioned

have led to intersection of the two regions, with consider-
able perplexity for the consequence.
We have causes of action nominally in contract which
are not founded on the breach of any agreement, and we
have torts which are not in any natural sense independent
of contract.
This border-land between the law of tort and the law of
contract will be the subject of examination in this chapter.

Classes of The questions to be dealt with may be distributed under

questions
arising. the following heads :

1. Alternative forms of remedy on the same cause of

action.

2. Concurrent or alternative causes of action.

3. Causes of action in tort dependent on a contract not
between the same parties.
4. Measure of damages and other incidents of the

remedy.

I. Alternative Forms of Remedy on the same Cause of

Action.

One cause It be hard to decide whether particular cases fall

may
and alter- under this head or under the second, that is, whether

remedies
there ig one cause of action which the pleader has or had
the choice of describing in two ways, or two distinct causes
of action which may possibly confer rights on and against
different parties. In fact the most difficult questions we
shall meet with are of this kind.

The com- Misfeasance in doing an act in itself not unlawful is

doctrine ground for an action on the case (<?).

It is immaterial

(c) And strictly, not for an ac- classes of facts which may be
tion of trespass ;
but there are regarded as constituting either
 NEGLIGENCE AND ASSUMPSIT. 461

that the act was not one which the defendant was bound to of mis-

do at all (d). If a man will set about actions attended

with risk to others, the law casts on him the duty of care
and competence. It is equally immaterial that the defen-
dant may have bound himself to do the act, or to do it

competently. The undertaking, undertaking there was

if

in that sense, is but the occasion and inducement of the

wrong. From this root we have, as a direct growth, the.

whole modern doctrine of negligence. We also have, by
a more artificial process, the modern method of enforcing

simple contracts, through the specialized form of this

kind of action called assumpsit (e) the obligation being
:

extended, by a bold and strictly illogical step, to cases of

pure non-feasance (/), and guarded by the requirement of

consideration. Gradually assumpsit came to be thought
of as founded on a duty ex contractu ; so much so that
it might not be joined with another cause of action on the
case, such as conversion. From
a variety of action on the
case it had become a perfect species, and in common use
its origin was forgotten. But the old root was there still,
wrongs of misfeasance (case), or ration against a surgeon for im-
acts which might be justified proper treatment was not bad for
under some common or particular not showing by whom the surgeon
claim of right, but not being duly was retained or to be paid,
done fail of such justification and (e) 0. W. Holmes, The Common
are merely wrongful (trespass). Law, p. 274 sqq. ;
J. B. Ames in
(d) Gladwett v. Steggall (1839)
5 Harv. Law Rev. ii. 1, 53.

Bing. N. C. 733, 8 Scott 60, 8 L. J. (/) An analogy to this in the

C. P. 361 ;
action by an infant for Roman theory of culpa, under the
incompetence in surgical treatment. Lex Aquilia, can hardly be sus-
In such an action the plaintiff's tained. See the passages in D.
consent is material only because 9. 2. collected and discussed in Dr.

without it the defendant would be Grueber's treatise, at pp. 87, 209.

a mere trespasser, and the incom- On the other hand the decision in
petence would not be the gist of Blade's case, 4 Co. Rep. 9 la, that
the action, but matter for aggra- the existence of a cause of action
ration of damages. To the same in debt did not exclude assumpsit,
effect is Pippin v. Sheppard (1822) was in full accordance with the
1 1 Price 400, holding that a decla- original conception.
462 SPECIAL RELATIONS OF CONTRACT AND TORT.

and had life in it might happen that

at need. Thus it

facts or pleadings which in the current modern view showed

an imperfect cause of action in assumpsit would yet suffice

to give the plaintiff judgment on the more ancient ground
of misfeasance in a duty imposed by law. In the latest

period of common law pleading the House of Lords upheld

in this manner a declaration for negligence in the execution
of an employment, which averred an undertaking of the
employment, but not any promise to the plaintiff, nor,
in terms, any consideration (g) . And it was said that a

breach of duty in the course of employment under a con-

tract would give rise to an action either in contract or in
tort at the plaintiff's election (h). This, it will be seen,

is confined to an active misdoing; notwithstanding the

verbal laxity of one or two passages, the House of Lords
did not authorize parties to treat the mere non-performance
of a promise as a substantive tort (&'). Until the beginning
of this century it was the common practice to sue in tort
for the breach of an express warranty, though it was need-
less to allege or prove the defendant's knowledge of the
assertion being false (/).
On the other hand, it was held for a considerable time (k)
!
that an action against a common carrier for loss of goods,
" "
even when framed in tort, sounded in contract so much

(g} Brown v. Boorman (1844) 11 the course of the argument. In

Cl. & F. 1. The defendant's that case was attempted to join
it

pleader appears to have been counts, which were in substance

unable to refer the declaration to for the non-payment of a bill of

any certain species ;

to make sure exchange, with a count in trover,
of it somewhere he pleaded
having (j] Williamson v. Allison (1802)
(1) not guilty (2) non assump-
;
2 East 446.

sit; (3) a traverse of the alleged (K) From 1695, Dalston v.Janson,
employment. 5 Mod. 89, 1 Ld. Raym. 58, till
(h) Per Lord Campbell. 1766, when the last-mentioned case
(i) Courtenay
v. Earle (1850) 10 and others to the same effect were
C. B. 73, 20 L. J. C. P. 7. See overruled in Dickon v. Clifton, 2

especially the dicta of Maule J. in Wils. 319.

 CUSTOM OF THE REALM. 463

that could not be distinguished from assumpsit, and a

ifc

count so framed could not be properly joined with other

forms of case, such as trover.
There are certain kinds of employment, namely those
of a carrier and an innkeeper, which are deemed public in
a special sense. If a man holds himself out as exercising
one of these, the law casts on him the duty of not refusing
the benefit thereof, so far forth as his means extend, to

any person who properly applies for it. The innkeeper

must not without a reasonable cause refuse to entertain a
traveller, or the carrier to convey goods. Thus we have a
duty attached to the mere profession of the employment,
and antecedent to the formation of any contract and if the ;

duty is broken, there is not a breach of contract but a tort,

for which the remedy under the common law forms of

pleading is an action on the case. In effect refusing to

enter into the appropriate contract is of itself a tort.

Duties of the same class may be created by statute, ex-

pressly or by necessary implication ; they are imposed for

the benefit of the public, and generally by way of return
for privileges conferred by the same statutes, or by others

inpari materia, on the persons or corporations who may be

concerned.

Here the duty is imposed by the general law, though by Special

a peculiar and somewhat anomalous rule and it gives rise ;

nd n ~
to an obligation upon a simple non-feasance, unless we f "J. b

that the of a in this "custom

say profession "public employment"
sense is itseli a continuing act, in relation to which the realm."

refusal to exercise that employment on due demand is a

misfeasance. But on this latter view there would be no
reason the public profession of any trade or calling
why
whatever should not have the like consequences ; and such
an extension of the law has never been proposed.
464 SPECIAL RELATIONS OF CONTRACT AND TORT.

"
The term " custom has been appropriated
of the realm
to the description of this kind of duties by the current

usage of lawyers, derived apparently from the old current

. form of declaration. It seems however that in strictness
" custom "
of no meaning except as a
the realm has

synonym of the common law, so that express averment of

it was superfluous (I).

Even where the breach of duty is subsequent to a com-

plete contract in any employment was long
of this kind, it

the prevailing opinion that the obligation was still founded

on the custom of the realm, and that the plaintiff might
escape objections which (under the old forms of procedure)
would have been fatal in an action on a contract (m) .

Alterna- In all other cases under this head there are not two
form does distinct causes of action even in the alternative, nor dis-

substance tinct remedies, but one cause of action with, at most, one
f d
?. ,
y or fc
?J. remedy in alternative forms. And it was an established
liability.
rule, aslong as the forms of action were in use, that the
rights and liabilities of the parties were not to be altered
by varying the form. Where there is an undertaking
without a contract, there is a duty incident to the under-

taking (ri), and if it is broken there is a tort, and nothing

else. The a specific contract, the more
rule that if there is

general duty is superseded by it, does not prevent the

general duty from being relied on where there is no con-
tract at all (o) Even where there is a contract, our autho-
.

rities do not say that the more general duty ceases to exist,

Pozzi v. Shipton (1839) 8

(I)
A. () GladweU v. Steggall (1839) 5
& E. 963, 975, 8 L. J. Q. B. 1. Bing. N. C. 733, 8 Scott 60, 8 L. J.
Cp. Tattan v. G. W. R. Co. (1860) C. P. 361.
2 E. & E. 844, 29 L. J. Q. B. 184, (o) Austin v. G. W. E. Co. (1867)

Y. B. 2 Hen. IV. 18, pi. 5. L. K. 2 Q. B. 442, where the judg-

(m) Pozzi v. Shipton, last note. ment of Blackburn J. gives the
true reason. See further below.
 TORT FOUNDED ON CONTRACT. 465

or that a tort cannot be committed ;

but they say that the
is
" founded on contract." The contract, with its
duty
incidents either express or attached by law, becomes the
only measure of the duties between the parties. There
might be a choice, therefore, between forms of pleading,
but the not by any device of form get
plaintiff could
more than was contained in the defendant's obligation
under the contract.

Thus an infant could not be made chargeable for what

was in substance a breach of contract by suing him in an
action on the case and the rule appears to have been first laid
;

down for this special purpose. All the infants in England

would be ruined, it was said, if such actions were allowed (p) .

So a purchaser of goods on credit, if the vendor resold the

goods before default in payment, could treat this as a

conversion and sue in trover but as against the seller he
;

could recover no more than his actual damage, in other

words the substance of the right was governed wholly by
the contract (q) .

Yet the converse of this rule does not hold without

qualification. There are cases in which the remedy on a

contract partakes of the restrictions usually incident to the

remedy for a tort ; but there are also cases in which not
only an actual contract, but the fiction of a contract, can
be made to afford a better remedy than the more obvious
manner of regarding the facts.

Moreover it was held, for the benefit of plaintiffs, that

where a man had a substantial cause of action on a con-
tract he should not lose its incidents, such as the right to a
verdict for nominal
damages in default of proving special

damage, by framing his action on the case (r).

(p) Jennings v. Eundall (1799) 1 & N. 288, 29 L. J. Ex. 180; p. 312

T. R. 355 ; p. 50 above. above.
(q) Chinery v. Viall (1860) 5 H. (>) Marzetti v. William* (1830) 1

P. HH
 SPECIAL RELATIONS OF CONTRACT AND TORT.

In modern Now that f orms of

pleading are generally abolished or
obligation greatly simplified, it seems better to say that wherever
Uy there is a contract to do something, the obligation of the
in con-
tract. contract the only obligation between the parties with
is

regard to the performance, and any action for failure or

negligence therein is an action on the contract and this ;

whether there was a duty antecedent to the contract or

not. So much, in effect, has been laid down by the Court
of Appeal as regards the statutory distinction of actions

by the County Courts Act, 1867, for certain purposes of

costs, as being "founded on contract" or "founded on

tort" (s).

From view the permanent result of the

this point of

older theory has been to provide a definite measure for

duties of voluntary diligence, whether undertaken by con-
tract or gratuitously, and to add implied warranties of

exceptional stringency to the contracts of carriers, inn-

keepers, any) whose employments fall
and those others (if

under the special rule attributed to the " custom of the

"
realm *.

Limits of All these rules and however, must be taken

restrictions,
the rule.
with regard to their appropriate subject-matter. They do

B. & Ad. 415 ;

action by customer a distinct though similar custom
against banker for dishonouring extending to shipowners who carry
cheque. goods for hire without being com-
(s) Fleming v. Manchester, Shef- mon carriersNugent v. Smith
;

field $ Lincolnshire R. Co. (1878) 4 (1876) 1 D. 14, 45 L. J. C. P.

C. P.
Q. B. D. 81. It is impossible to 19 but the decision was reversed
;

reconcile the grounds of this deci- on appeal, 1 C. P. D. 423, 45 L. J.

sion with those of Pozzi v. Shipton C. P. 697, and the propositions of

(1839) 8 A. & E. 963, 8 L. J. Q. B. the Court below specifically con-

1 p.
;
464 above. troverted by Cockburn C. J., see
(t] It has been suggested that a 1 C. P. D. at p. 426 sqq. I am not

shipowner may be under this re- aware of any other kind of employ-
sponsibility, not because he is a ment to which the custom of the
' '

common carrier, but by reason of realm " has been held to apply.
 INDEPENDENT CAUSES OF ACTION. 467

not exclude the possibility of cases occurring in which

there is more than an alternative of form.
If John has contracted with Peter, Peter cannot make
John beyond his contract that is, where the facts are
liable ;

such that a cause of action would remain if some necessary

element of contract, consideration for example, were sub-
tracted, Peter can, so to speak, waive John's promise if he
think fit, and treat him in point of form as having com-
mitted a wrong but in point of substance he cannot thereby
;

make John's position worse. In saying this, however, we

are still far from saying that there can in no case be a
relation between Peter and John which includes the facts
of a contract (and to that extent is determined by the obli-

gation of the contract), but in some way extends beyond

those facts, and may produce duties really independent of
contract. Much less have we said that the existence of such
a relation isnot to be taken into account in ascertaining
what may be John's duties and liabilities to William or
Andrew, who has not any contract with John. In pursuing
such questions we come upon real difficulties of principle.
This class of cases will furnish our next head.

II. Concurrent Causes of Action. Concur-

rent causes
Herein we have to consider of action.

(a) Cases where doubtful whether a contract has

it is

been formed or there is a contract " implied in

"
law without any real agreement in fact, and
the same act which is a breach of the contract, if

any, is at all events a tort ;

(b) Cases where A. can sue B. for a tort though the
same facts may give him a cause of action against
M. for breach of contract ;

(c) Cases where A. can sue B. for a tort though B.'s

II H 2
468 SPECIAL RELATIONS OF CONTRACT AND TORT.

misfeasance may be a breach of a contract made

not with A. but with M.

Cases ot
(a) There are two modern railway cases in which the
tort,
whether majority of the Court held the defendants liable on a
contract
or no contract, but it was also said that even if there was no
contract was an independent cause of action. In
contract there
between
same Denton v. Great Northern Railway Company (u) an in- ,

parties.
tending passenger was held to have a remedy for damage
sustained by acting on an erroneous announcement in the

company's current time-table, probably on the footing of

the time-table being the proposal of a contract, but cer-

tainly on the ground of being a false representation.

its

In Austin -v. Great Western Railway Company (v), an

action for harm suffered in some accident of which the
nature and particulars are not reported, the plaintiff was a

young child just above the age up to which children were

entitled to pass free. The plaintiff's mother, who had
charge of him, took a ticket for herself only. It was held
that the company was liable either on an entire contract
to carry the mother and the child (enuring, it seems, for
the benefit of both, so that the action was properly brought

by the child) (w), or independently of contract, because the

child was accepted as a passenger, and this cast a duty on
the company to carry him safely (#) . Such a passenger
is, in the absence of fraud, in the position of using the

railway company's property by invitation, and is entitled

to the protection given to persons in that position by a

(u) 5 E. & B. 860, 25 L. J. Q. B. from adequate criticism.

129 (1856), see p. 263 above, and (v) L. R 2 Q. B. 442 (1867).

Principles of Contract, 5th ed. 15, (w) Per Lush J. at p. 447.

16. The case is perhaps open to (#) Per Blackburn J. at p. 445,
the remark that a doubtful tort and and see per Grove J. in Foulkes v.
the breach of a doubtful contract Metrop. District R. Co. (1880) 4 C.
:-were allowed to save one another P. D. at p. 279, 48 L. J. C. P. 555.
 WAIVER OF TORT. 469

class of authorities now well established (//)

. Whether the
company under quite the same duty towards him, in
is

respect of the amount of diligence required, as towards a

passenger with whom there is an actual contract, is not so
clear on principle (z) The point
. is not discussed in any
of the cases now under review.

Again a servant travelling with his master on a rail-

if

way loses his luggage by the negligence of the company's

servants, it is immaterial that his ticket was paid for by

his master, and he can sue in his own name for the loss.
Even the payment is not
if
regarded as made by the
master as the servant's agent, as between themselves and
the company (), the company has accepted the servant
and his goods to be carried, and is answerable upon the
general duty thus arising, a duty which would still exist
if the passenger and his
goods were lawfully in the train
without any contract at all (b). Evidently the plaintiff in
a case of this kind must make his choice of remedies, and
cannot have a double compensation for the same matter,
first as a breach of contract and then as a tort at the ;

same time the rule that the defendant's liability must not
be increased by varying the form of the claim -is not here

applicable, since the plaintiff may rely on the tort not-

withstanding the existence of doubt whether there be any
contract, or, if there be, whether the plaintiff can sue on it.

On the other hand we have cases in which an obvious Contract

tort is turned into a much less obvious breach of contract
an<lwaiver
with the undisguised purpose of giving a better and more

(y] See Chap. XII. p. 443 above. argued that the master had no
(z)See Moffatt v. JBatcman (1869) contract with the company ?
L. E. 3 P. C. 115. (b) Marshall v. York, Newcastle

(a)Suppose the master by acci- $ Berwick E. Co. (1851) 11 C. B.

dent had left his money at home, 655, 21 L. J. C. P. 34 approved;

and the servant had paid both fares by Blackburn J. in Austin v. G. 77".

out of his own money : could it be j?. Co., note (v), last page.
470 SPECIAL RELATIONS OF CONTRACT AND TORT.

convenient remedy. Thus

an actionable wrong to it is

retain money paid by mistake, or on a consideration which

has failed, and the like but in the eighteenth century the
;

" "
fiction of a promise implied in law repay the money
to
so held was introduced, and afforded " a very extensive
and remedy, applicable to almost every case
beneficial

where the defendant has received money which ex aequo et

bono he ought to refund" (c), and even to cases where
goods taken or retained by wrong had been converted into
" waive the "
money. The plaintiff was said to tort for
the purpose of suing in assumpsit on the fictitious contract.
Hence the late Mr. Adolphus wrote in his idyllic poem
"TheCircuiteers":
"
Thoughts much too deep for tears subdue the Court
When I assumpsit bring, and godlike waive a tort" (?).

This kind of action was much fostered by Lord Mans-

field, whose exposition confessed the fiction of the form
while it justified the utility of the substance (e).

Implied Within still recent memory an essentially similar fiction

warranty < .

of agent's of law has been introduced in the case of an ostensible

(Coiien J. agent obtaining a contract in the name of a principal
whose authority he misrepresents. A person so acting is
liable for deceit ;
but that
being purely in tort,liability,
does not extend to his executors, neither can he be held

personally liable on a contract which he purported to make

in the name of an existing principal. To meet this diffi-
culty it was held in Collen v. Wright (/) that when a man
offers to contract as agent there is an implied warranty
that he is really authorized by the person named as princi-

(c] Blackst. iii. 163. ed. 39, 48.

(ct)
L. Q. K. i. 233. (/) Ex. Ch. (1857) 8 E. & B.
(e) Moses v. Macferlcm, 2 Burr. 647, 27 L. J. Q. B. 215.
1005 ; cp. Leake on Contracts, 1st
 DOUBLE RIGHT OF ACTION. 471

pal, on which warranty he or his estate will he answerahle

ex contractu. Just as in the case of the old "common

counts," the fact that the action lies against executors
shows that there is not merely one cause of action capable
of being expressed, under the old system of pleading, in
different ways, but two distinct though concurrent causes of

action, with a remedy upon either at the plaintiff's election.

"We pass from these to the more troublesome cases where
the causes of action in contract and in tort are not between
the same parties.

(b) There may be two causes of action with a common Concur-

. . rent causes
plaintiff, or the same facts may give Z. a remedy in contract O f action

against A. and also a remedy in tort against B. different

parties in
contract
The steam ferry at Liverpool, having to meet and in
lessee of a

an unusual press of traffic, hired a vessel with its crew n a jL Wr

from other shipowners to help in the work of the ferry for Tyrer.

a day. The plaintiff held a season-ticket for the ferry,

and therefore had a contract with the lessee to be carried
across with due skill and care. He crossed on this day in
the hired vessel ; by the negligence of some of the crew

there was an accident in mooring the vessel on her arrival

at the farther shore, and the plaintiff was hurt. He sued
not the lessee of the ferry but the owners of the hired
vessel and it was held that he was entitled to do so.
;

The persons managing the vessel were still the servants of

the defendants, her owners, though working her under a
contract of hiring for the purposes of the ferry and the ;

defendants would be answerable for their negligence to a

mere stranger lawfully on board the vessel or standing on
the pier at which she was brought up. The plaintiff was
lawfully on their vessel with their consent, and they were
not the less responsible to him because he was there in
-472 SPECIAL RELATIONS OF CONTRACT AND TORT.

exercise of a right acquired by contract upon a considera-

tion paid to some one else (g).

Fouikesv. The latest and most authoritative decision on facts of

Met. Dist.
R. Co. this kind was given by the Court of Appeal in 1880 (h).
The plaintiff, a railway passenger with a return ticket
alighting at his destination at the end of the return
journey, was hurt by reason of the carriages being unsuit-
able to the height of the platform at that station. This
stationand platform belonged to one company (the South
Western), by whose clerk the plaintiff's ticket had been
issued : the train belonged to another company (the
District) who used the station and adjoining line under

running powers. There was an agreement between the

two companies whereby the profits of the traffic were
divided. Thesued the District Company, and it
plaintiff
was held that they were liable to him even if his contract
was with the South Western Company alone. The Dis-
trict Company received him as a passenger in their train,
and were bound to provide carriages not only safe and
sound in themselves, but safe with reference to the perma-
nent way and appliances of the line. In breach of this
duty they provided, according to the facts as determined
"
the jury, a train so ordered that in truth the combined
by
arrangements were a trap or snare," and would have given
the plaintiff a cause of action though he had been carried

gratuitously (?').
He had been actually received by the

(g} Dalyell v. Tyrer (1858) E. B. (i) Bramwell L.

J., 5 C. P. Div.
& E. 899, 28 L. J. Q. B. 52. at p. 159. See the judgment of
(h) Foulkes v. Metrop. Dist. R. Thesiger L. J. for a fuller state-
(7o., 50. P. Div. 157, 49 L. J. C. P. merit of the nature of the duty.
361. Cp. Berrwger v. G. E. R, Co. Comparison of these two judgments
(1879) 4 C. P. D. 163, 48 L. J. leaves it capable of doubt whether

C. P. 400. the defendants would have been

liable for a mere non-feasance.
 DOUBLE LIABILITY. 473

defendants as a passenger, and thereby they undertook the

duty of not exposing him to unreasonable peril in any

matter incident to the journey.

(c) There may be two causes of action with a common Causes of

ATII
event which makes A. liable
action in
defendant, or the same act or contract

for a breach of contract to B. may make him liable for a

tort to Z. .

plain tins.

The case already mentioned of the servant travelling by

railway with his master would be an example of this if it
were determined on any particular state of facts that the
railway company contracted only with the master. They
would not be less under a duty to the servant and liable

for a breach thereof because they might also be liable to

the master for other consequences on the ground of a
breach of their contract with him (If)
.

Again, an officer in Her Majesty's service and his

baggage were carried under a contract made with the
carriers on behalf of the Government of India ;
this did

not prevent the carriers from being liable to the officer if

his goods were destroyed in the course of the journey by
" The contract is
the negligence of their servants. no
concern of the plaintiff's the act was none the less a
;

wrong to him"
(I). He
could not charge the defendants
with a breach of contract, but they remained answer-
" an affirmative act injurious to the plaintiff's
able for
"
property (m).

(k) Marshall's ca. (1851) 11 C. B. and Pigott B. doubted. The later

655, 21 L. J. C. P. 34, supra, case of Becker v. G. E. R. Co.

p. 469. (1870) L. E. 5 Q. B. 241, 39 L. J.

(I)
Martin v. G. I. P. It. Co. Q. B. 122, is distinguishable all :

(1867) L. R. 3 Ex. 9, per Bram- it decides is that if A. delivers B.'s

well B. at p. 14, 37 L. J. Ex. 27. goods to a railway company as A.'s
(m) ChannellB. ibid.; Kelly C.B. own ordinary luggage, and the
474 SPECIAL RELATIONS OF CONTRACT AND TORT.

Alton v. The decision of the Court of Common Pleas in Alton

It. Co., qu.
-v. Midland Railway Co. (n) is difficult to reconcile with
__1- __
^e f
-0-1-.

law.
re gi n g authorities. A servant travelling by rail-

way on his master's business (having paid his own fare)

received hurt, as was alleged, by the negligence of the
railway company's servants, and the master sued the
company for loss consequent on this injury.
of service
It was held that the action would not lie, the
supposed
cause of action opinion of the
arising, in the Court,
wholly out of the company's contract of carriage ;
which
contract being made with
the servant, no third person
could found any right upon it. " The
rights founded
on contract belong to the person who has stipulated for
them" (o) ;
and
denied that there was any duty in-
it is

dependent of contract (p). But it is not explained in

any of the judgments how this view is consistent with the
authorities relied on for the and in particular
plaintiff,
with Marshall's case, a former decision of the same Court.
The whether the reception of the plaintiff's
test question,

servant as a passenger would not have created a duty to

carry him safely if there had not been any contract with
him, is not directly, or, it is
submitted, adequately dealt
with. The case, though expressly treated by the Court as
of general importance, has been but little cited or relied

on during the twenty-five years that have now passed;

and the correctness of the decision was disputed (extra-
judicially, it is true) by Sir E. Y. Williams (q) . A

company receives them to be carried (o) Willes J., 19 C. B. N. S. at

as such, B. cannot sue the company p. 240.
for the loss of the goods. Martin's (p} Montague Smith J. at p. 245.
" The Court decided this
case, however, was not cited. (q) case
(n} 19 C. B. N. S. 213,
34 L. J. on the principle that one who is no
C. P. 292(1865). This case was not party to a contract cannot sue in
c-ited either in Martin v. G. 1. P. .K. respect of the breach of a duty
Co. .or Toull'cs v. Net. Dist. R. Co. arising out of the contract. But
 CONFLICT OF AUTHORITIES. 475

directly contrary decision has also been given in the State

of Massachusetts (r). Alton's case, moreover, seems to be

virtually overruled which proceeds on

by Foulkes's case,
the existence of a duty not only in form but in substance

independent of contract. The only way of maintaining

the authority of both decisions would be to say that in
Alton's case the master could not recover because the
servant had a contract with the defendant railway com-
pany, but that he might have been entitled to recover if
the servant had been travelling with a free pass, or with
a ticket taken and paid for by a stranger, or issued by
another company, or had suffered from a fault in the

permanent way or the structure of a station. But such a

distinction does not appear reasonable.

might perhaps have been argued that at all events

It
such negligence must be shown as would make a carrier
of passengers liable to a person being carried gratuitously ;

it might open to argument whether the person

also be

injured (apparently a commercial traveller) was really the

servant of the plaintiff in such a sense that an action could
be maintained for the loss of his service. Doubtless the
action for wrong to a servant per quod servitium amisit is of
an archaic character and not favoured in our modern law,
and this may have unconsciously influenced the Court.
Neither of these points, however, was discussed, nor indeed
were they open to discussion upon the issues of law raised
by the pleadings, on which alone the case was argued and

it may be doubted whether this 474. Sir E. V. Williams was a

was correct ;
for the duty, as ap- member of the Court which decided
pears by the series of cases cited Marshall's case, supra, p. 469.
in the earlier part of this note, (r] Ames v. Union E. Co. (1875)
does not exclusively arise out of 117 Mass. 541, expressly following
the contract, but out of the com- Marshall's ca. (1851) 11 C. B. 655,
mon law obligation of the defen- 21 L. J. C. P. 34, supra, p. 409.
dants as carriers;" 1 Wms. Saund.
476 'SPECIAL RELATIONS OF CONTRACT AND TORT.

decided. The what degree of negligence must

questions
be shown, whether a mere non-feasance would be enough,
or the like, could have been properly raised only when the
evidence came out (s).
The most ingenious reason for the judgment of the
Court is that of Willes J., who said that to allow such an
I- action would be to allow a stranger to exercise and deter-
mine the election (of suing in contract or tort) which the
law gives only to the person actually injured. But it is
submitted that the latter is (or was) required to elect
between the two causes of action as a matter of remedy,-
not of right, and because he is to be compensated once
and once only for the same damage; and that such
election neither affects nor is affected by the position of a
third person. Moreover the master does not sue as a per-
son claiming through the servant, but in a distinct right.
The cause of action and the measure of damages are
different (t)
. On
the whole the weight of principle and

authority seems to be so strong against Alton's case that,

notwithstanding the respect due to the Court before which
itcame, and which included one of the greatest masters of
the common law at any time, the only legitimate conclu-
sion is that it was wrongly decided.
It must be admitted that the Court of Appeal itself has
spoken with a somewhat ambiguous voice () We should .

be bound, however, to prefer the later and more considered

decision even if it did not appear to be more in
harmony
with the general current of authorities.

(*) Compare Mr. Henry T. (u) The actual decision of Flem-

Terry's criticism in "Leading ing's case (p. 466 above) is on a
Principles of Anglo - American minute point of statutory proce-
Law," Philadelphia, 1884, pp. dure, but its grounds are not easy
485 488. to reconcile with those of FoulJces's

(t}
See p. 205 above. case.
 OBLIGATION MERELY ON CONTRACT. 477

It appears, then, that there a certain tendency to is Winter'

hold that facts which constitute a contract cannot have Wright',

&c
any other legal effect. We
think we have shown that
"

such is not really the law, and we may add that the autho-
rities commonly relied on for this proposition really prove
something different and much more
rational, namely, that
if A. breaks his contract with B. (which may happen

without any personal default in A. or A.'s servants), that is

not of itself sufficient to make A. liable to C., a stranger to

the contract, for consequential damage. This, and only

this, is the substance of the perfectly correct decisions of
the Court of Exchequer in Winterbottom v. Wright (x) and

Longmeid v. HoUiday (y] In each case the defendant de-

.

livered, under a contract of sale or hiring, a chattel which was

in fact unsafe to use, but in the one case was not alleged, in
the other was alleged but not proved, to have been so to his

knowledge. In each case a stranger to the contract, using

the chattel a coach in the one case, a lamp in the other
in the ordinary way, harm through its dangerous
came to

condition, and was held not to have any cause of action

against the purveyor. Not in contract, for there was no

contract between these parties not in tort, for no bad
;

faith or negligence on the defendant's part was proved.

If bad faith (z) or misfeasance by want of ordinary care (a)
had been shown, or, it may be, if the chattels in question
had been of the class of eminently dangerous things which
a man deals with at his peril (6), the result would have
been different. With regard to the last-mentioned class

of things the policy of the law has created a stringent and

(x) 10 M. & W. 109, 11 L. J. (a) George v. Skivington (1869)

Ex. 415 (1842). L. R. 5 Ex. 1, 38 L. J. Ex. 8.
(y) 6 Ex. 761, 20 L. J. Ex. 430 (b) See Thomas v. Winchester
(1851). (1852) 6 N. Y. 397, Bigelow L. C.
(z) Langridge v. Levy (1837) 2 602, p. 439 above.
M. & W. 519.
478 SPECIAL RELATIONS OF CONTRACT AND TORT.

peculiar duty, to which the ordinary rule that the plaintiff

must make out either wilful wrong-doing or negligence
does not apply. There remain over some few miscellaneous
cases currently cited on these topics, of which we have
purposely said nothing because they are little or nothing
more than warnings to pleaders (c).

Concur- If, after this examination of the authorities, we cannot

breach of g e^ rid of the notion that the concurrence of distinct causes
contract
Q ac^ on ex delicto and ex contract-it is a mere accident of
with delict
in Roman common law procedure, we have only to turn to the
Roman system and find the same thing occurring there.
A freehorn filius familias, being an apprentice, is immode-
rately beaten by his master for clumsiness about his work.
The apprentice's father may have an action against the
master either on the contract of hiring (ex locato) (d), or at
his option an action under the lex Aquilia, since the excess
in an act of correction which within reasonable bounds
would have been lawful amounts to cuJpa(e). It is like the

English cases we have cited where there was held to be a

clear cause of action independent of contract, so that it
was not necessary for the plaintiff to make out a breach of
contract as between the defendant and himself.

(c) Such is Collis v. Selden (1868) Shepherd (1850) 9 C. B. 296, ex-

L. R. 3 C. P. 495, 37 L. J. C. P. hibits an attempt to disguise a
233, where the declaration at- manifestly defective cause of action
tempted to make a man liable in assumpsit by declaring in the
for creating a dangerous state of general form of case.
things, without any allegation that (d) L\ 19, 2. locati conducti, 13,
he knew of the danger, or had any 4.

control over the thing he worked (e) D. 9, 2. 5, 3 ;

Grueber on
upon or the place where it was, the Lex Aquilia, p. 14 the trans- :

or that the plaintiff was anything lation there given is not altogether
more than a "bare licensee." correct, but the inaccuracies do not
Tollit v. Sherstone, 5 M. & W. 283, affect the law of the passage. And
isanother study in bad pleading see D. h. t. 27, 11, 33, Grueber,
which adds nothing to the sub- p. 230.
stance of the law. So Howard v.
 LUMLEY V. GYE. 479

III. Causes of Action in Tort dependent on a Contract not Causes of

action de-
between the same Parties. pendent on
collateral
contract -
(a) When a binding promise is made, an obligation is

created which remains in force until extinguished by the L um iey v .

G de ~
performance or discharge of the contract. Does the duty
thus owed to the promisee constitute the object of a kind
of real right which a stranger to the contract can infringe,
and thereby render himself answerable ex delicto ? In
other words, does a man's the performance of a title to

promise contain an element analogous to ownership or

possession ? The general principles of the law (notwith-
standing forms of speech once in use, and warranted by
considerable authority) (/) seem to call for a negative
answer. would confuse every accustomed boundary
It

between real and personal rights, dominion and obliga-

tion, to hold that one who without any ill-will to Peter

prevents Andrew from performing his contract with Peter

may be a kind of trespasser against Peter (g). For Peter
has his remedy against Andrew, and never looked to

having any other ;

and Andrew's motives for breaking his

contract are not material. Yet there is some show of

authority for affirming the proposition thus condemned.
It was decided by the Court of Queen's Bench in Lumlcy
v. Gyc (1853) (ti),
and by the Court of Appeal in Boxen v.

'
'
F )

(/) Blackstone, ii. 442, speaks of a system of law is not conceivable

a contract to pay a sum of money where such a doctrine would be
as transferring a property in that natural or even necessary. But
sum but he forthwith adds that
;
that system, if it did exist, would
this property is "not in pos- be not at all like the Roman law
session but in action merely," i.e. and not much like the common
it is not property in a strict sense : law.
there is but not a dominus,
a res (h) 2 E. & B. 216, 22 L. J.
Vermogen but not Eigenthum. Q. B. 463 ; by Crompton, Erie, and
(g) We have no right to say that Wightman JJ. ;
diss. Coleridge J.
480 SPECIAL RELATIONS OF CONTRACT AND TORT.

Hall (1881) (*'),

that an action lies, under certain condi-
tions, for procuring a third person to break his contract
with the plaintiff. We must, therefore, examine what
the conditions of these cases were, and how far the rule
laid down by them really extends.

Special First, admitted that actual damage must be alleged

it is

and proved (J) This at once shows that the right violated
.

is not an absolute and independent one like a

right of
property, for the possibility of a judgment for nominal
damages is in our law the touchstone of such rights.
Where specific necessary to support an action,
damage is

the right which has been infringed cannot be a right of

property, though in some cases it may be incident to

property.

and Next, the defendant's act must be malicious, in the

sense of being aimed at obtaining some advantage for
himself at the plaintiff's expense, or at any rate at causing
loss or damage to the plaintiff. In the decided cases the
defendant's object was to withdraw from a rival in busi-

ness, and procure for himself, the services of a peculiarly

skilled person in the earlier case an operatic singer, in
the later a craftsman to whom, in common with only a few
others, a particular process of manufacture was known.
Various cases may be put of a man advising a friend, in
all honesty and without ill-will to the other contracting

party, to abide the lisks of breaking an onerous or mis-

(i)
6 Q. B. Div. 333, 50 L. J. not appear how the claim for
Q. B. 305 by Lord
;
Selborne damages was framed, but in the
L. C. and Brett L. J. ;
diss. Lord opinion of the majority of the
Coleridge C. J. Court there was evidence of special
(./) See the declaration in Lumley damage ;
see 6 Q. B. D. 337.
v. Gye. In Bowen v. Hall it does
 LUMLEY f. OYE. 481

chievous contract rather than those of performing it (k).

And it would be unreasonable in such cases to treat the
giving of such advice, if it be acted on, as a wrong.
Lucilia has imprudently accepted an offer of marriage
from Titius, her inferior in birth, station, and breeding :

Lucilia's brother Marcus, knowing Titius to be a man of

bad character, persuades Lucilia to break off the match :

shall any law founded in reason say that Marcus is liable

to an action at the Assuredly not and

suit of Titius ? :

there is no decision that authorizes any such proposition

even by way of plausible extension. There must be a are of the
the
wrongful intent to do harm
to the plaintiff before the right
f^ion*
of action for procuring a breach of contract can be estab-
lished. Mere knowledge that there is a subsisting con-
tract will not do. The breach of contract is in truth
material only because it excludes the defence that the act

complained of, though harmful and intended to do harm,

was done in the exercise of a common right.

In thisview the real point of difficulty is reduced to Question

this, that the damage may be deemed too remote to found ness O f
the action upon. For if A. persuades B. to break his con- dama se -

tract with Z., the proximate cause of Z.'s damage, in one

sense, is not the conduct of A. but the voluntary act or

default of B. We do not think it can be denied that there
was a period in the history of the law when this objection
would have been held conclusive. Certainly Lord Ellen-
borough laid as a general rule of law that a man
it down
"
is answerable only for legal and natural consequence,"
"
not for an illegal consequence," that is, a wrongful
act of a third person (/). But this opinion is now dis-

approved (m).
(k} See the dissenting judgment 8 East 1, and in 2 Sm. L. C.
of Sir John Coleridge in Lumley v. (m) See Lynch v. Knight (1861)
Gye. 9 H. L. C. 577, and notes to Vicars

(1) Vicars v. Wilcoc'ks (1807) v. WikocJcs in Sm. L. C.

P. 1 I
482 SPECIAL RELATIONS OF CONTRACT AND TORT.

The tendency of our later authorities is to measure

responsibility for the consequences of an act by that which
appeared or should have appeared to the actor as natural
and probable, and not to lay down fixed rules which may
run counter to the obvious Here the consequence
facts.

is not only natural and

probable if A.'s action has any
consequence at all but is designed by A. it would, there- :

fore, be contrary to the facts to hold that the interposition

of B.'s voluntary agency necessarily breaks the chain of

proximate cause and probable consequence. A proximate

cause need not be an immediate cause.

Liability for negligence, as we have seen (ri), is not

always or even generally excluded by what is called "con-
tributory negligence of a third person." In any case it
would be strange if it lay in a man's mouth to say that
the consequence which he deliberately planned and pro-
cured too remote for the law to treat as a consequence.
is

The iniquity of such a defence is obvious in the grosser

examples of the criminal law. Commanding, procuring,
or inciting to a murder cannot have any " legal conse-
quence," the act of compliance or obedience being a crime;
but no one has suggested on this ground any doubt that
the procurement is also a crime.

Motive It may likewise be said that the general habit of the

ingredient
^ aw is n t to regard motive as
distinguished from intent,
an(* ^ na t ^ ne decision in Lumlcy v. Gyc, as here under-
stood and limited, is therefore anomalous at best. Now
the general habit is as stated, but there are well estab-
lished exceptions to it, of which the action for malicious

prosecution is the most conspicuous : there it is clear law

that indirect and improper motive must be added to the

() Pp. 405408 above.

 LUMLEY 'V. GYE. 483

other conditions to complete the cause of action. The

malicious procuring of a breach of contract, or of certain
kinds of contracts, forms one more exception. It may be
that the special damage which is the ground of the action
must be such as cannot be redressed in an action for the
breach of contract itself ;
in other words, that the contract
must be for personal services, or otherwise of such a kind
that an action against the contracting party would not
afford an adequate remedy. But then the remedy against
the wrong-doer will not be adequate either so that there ;

does not appear to be much rational ground for this

limitation. The obvious historical connexion with the
action for enticing away a servant will not help to fix the

modern Coleridge J. rightly saw that there

principle.
was no choice between facing the broader issues now indi-
cated and refusing altogether to allow that any cause of
action appeared.

In America the decision in Lumley v. Oye has been American

doctrine.
followed in Massachusetts (0) and elsewhere, and is gene-

rally accepted, with some such limitation as here main-

"
tained. The rule does not apply to a case of interference

by way of friendly advice, honestly given nor is it in ;

denial of the right of free expression of opinion" (p).

It is, perhaps, needless to consider specially the case of Wilful in-

a man wilfully preventing the performance of a contract with con-
by means other than persuasion ;
for in almost every such
msson.

(o) Walker v. Cronin (1871) 107 66 N. Y. (21 Sickels) 82 ; Benton

Mass. 555, a case very like Bowen 2 Wend. 385 (see p. 275
v. Pratt,
v. Hall. above) Jones v. BlocJcer, 43 G-a.
;

(p) 107 Mass. 566. I owe the 331 Haskin v. Royster, 70 N. C.

;

following additional references to 601 ;

Jones v. Starly, 76 N. C. 355 ;

State reports to the kindness of an DicJcson v. Dickson, La. An. 1261 ;

American friend : Rice v. Mariley, Burger v. Carpenter, 2 S. C. 7.

u2
484 SPECIAL RELATIONS OF CONTRACT AND TORT.

case the means employed must include an act in itself

unlawful disabling one of the contracting parties by
(as

personal violence, or destroying or spoiling a specific thing

contracted for) ; and, if so, the question comes round again
to the general principles of remoteness of damage (q).

Damage to Procuring a breach of contract, then, may be action-

fo\
v '
stranger t

by breach able if maliciously done or a contracting party may

;

tract. indirectly through the contract, though not upon it, have
an action against a stranger. Can he become liable to a
stranger ? We have
already seen that a misfeasance by a
contracting party in the performance of his contract may
be an independent wrong as against a stranger to the
contract, and as such maygive that stranger a right of
;
action (r). On the other hand, a breach of contract, as such,
will generally not be a cause of action for a stranger (s) .

And on this principle it is held by our courts that where

a message is incorrectly transmitted by the servants of a

telegraph company, and the person to whom it is delivered

thereby sustains damage, that person has not any remedy
against the company. For the duty to transmit and
deliver the message arises wholly out of the contract with
the sender, and there is no duty towards the receiver.
Wilful alteration of a message might be the ground of an
action for deceit against the person who altered it, as he
would have knowingly made a false statement as to the
contents of the message which passed through his hands.
But a mere mistake in reading off or transmitting a letter
or figure, materially affect the sense of the
though it may
despatch, cannot be treated as a deceit (tf).

(q) See Mr. William Schofield (s) The exceptions to this rule
on ' '
The principle of Lumley v. are much wider in America than
Gye and its application," Hary. in England.
Law Rev. ii. 19. (t) Dickson v. Reuters Telegram

(r) P. 473 above. Co. (1877) 3 C. P. Div. 1, 47 L. J.

 MISTAKE IN DELIVERING TELEGRAMS. 485

"In America, on the other hand, one who receives a Position of

telegram which, owing to the negligence of the telegraph erroneous

1
company, is altered or in other respects untrue, is invari- :

JSp** ?
ahly permitted to maintain an action against the telegraph views in
company for the loss that he sustains through acting upon and U. S.
"
that telegram the latest commentator on the American
:

authorities, however, finds the reasoning of the English

courts difficult to answer (it). And the American deci-
sions appear to rest more on a strong sense of puhlic
expediency than on any one definite legal theory. The
suggestion that there is something like a bailment of the
message may be at once dismissed. Having regard to the
extension of the action for deceit in certain English
cases (si),
there is perhaps more to be said for the theory of

misrepresentation than our courts have admitted but this ;

too is precarious ground. The real question of principle

iswhether a general duty of using adequate care can be
made out. I am not bound to undertake telegraphic
business at all ;
but if I do, am I not bound to know that
errors in the transmission of messages may naturally and
probably damnify the receivers ? not therefore and am I
bound, whether I am forwarding the messages under any
contract or not, to use reasonable care to ensure correct-
ness ? I cannot warrant the authenticity or the material
truth of the despatch, but shall I not be diligent in that

C. P. 1, confirming Playford v. common law ought to have a theory

17.K. Electric Telegraph Co. (1869) of culpa in contrahendo, but the
L. R. 4 Q. B. 706, 38 L. J. Q. B. lamented author's ingenuity will
249. not persuade many common lawyers
(u) Gray on Communication by that ithas. And if it had, I fail

Telegraph (Boston, 1885) 71-73, to see how that could affect the posi-
where authorities are collected. tion of parties between whom there
And see Wharton on Contracts, is not even the offer of a contract.

791, 1056, who defends the (x) See especially Denton v. G.

American rule on somewhat novel N. R. Co. (1856) 5 E. & B. 860,

speculative grounds. Perhaps the 25 L. J. Q. B. 129, p. 263 above.

486 SPECIAL RELATIONS OF CONTRACT AND TORT.

which lies within power, namely the delivery to the

my
receiver of those words or figures which the sender intended
him to receive ? If the affirmative answer he right, the
receiver who is misled may have a cause of action, namely
for negligence in the execution of a voluntary undertaking
attended with obvious risk. But a negative answer is

given by our own on the ground that the ordinary

courts,
law of negligence has never been held to extend to negli-
gence in the statement of facts (if it did, there would be
no need of special rules as to deceit) ;
and that the
delivery of a message, whether by telegraph or otherwise,
is nothing but a statement that certain words have been

communicated by the sender to the messenger for the

purpose of being by him communicated to the receiver.
It mayperhaps be said against this that the nature of
telegraph business creates a special duty of diligence in
correct statement, like that of a trustee with regard to
incumbrances on the trust fund (y] ;
so that an action as
for deceit will lie without actual fraud. But it would be
better to say that the systematic undertaking to deliver

messages in a certain way (much more the existence of a

corporation for that special purpose) puts the case in a

category of itsown apart from representations of fact
made in the common intercourse of life, or the repetition
of any such representation. Thus we should come back to
the old ground of the action on the case for misfeasance.
The telegraph company would be in the same plight as
the smith who pricks a horse with a nail, or the unskilful
surgeon, and liable without any question of contract or
warranty. Such liability would not necessarily be towards
the receiver only, though damages incurred by any other
person would in most cases be too remote. The Court of
Appeal has for the present disposed of the matter for this

(y\ Burrowes v. Lock, 10 Ves. 470, supra, p. 175.

 MISTAKE IN DELIVERING TELEGRAMS. 487

country, and inland communication by telegraph is now in

the hands of the Postmaster- General, who could not be
sued even the American doctrine were adopted.
if With
regard to foreign telegrams, however, the rule is still of
importance, and until the House of Lords has spoken it is
still open to discussion.

In the present writer's opinion the American decisions, The con-

"

though not allthe reasons given for them, are on principle on.

correct. The undertaking to transmit a sequence of letters

or figures (which may compose significant words and sen-
tences, but also may be, and often are, mere unintelligible
symbols to the transmitter) is a wholly different thing
from the statement of an alleged fact or the expression of
a professed opinion in one's own language. Generally
speaking, there is no such thing as liability for negligence
in word as distinguished from act ;
and this difference is

founded in the nature of the thing (z). If a man asserts

as true that which he does not believe to be true, that is
deceit ;
and this includes, as we have seen, making asser-
tions as of his own knowledge about things of which he is

ignorant. only speaks, and purports to speak,

If he

according to his information and belief, then he speaks for

his own part both honestly and truly, though his infor-
mation and belief be in themselves erroneous, and
may
though if he had taken ordinary pains his information
might have been better. If he expresses an opinion, that
is his opinion for what it is worth, and others must esti-

mate its worth for themselves. In either case, in the

absence of a special duty to give correct information or a

(z) The law of defamation stands of absolute responsibility qualified

apart but : it is no exception to the by absolute exceptions and where

;

proposition in the text, for it is not malice has to be proved, the grossest
a law requiring care and caution in negligence is only evidence of
greater or less degree, but a law malice.
488 SPECIAL RELATIONS OF CONTRACT AND TORT.

competent opinion, there is no question of wrong-doing.

If the speaker has not come under any such duty, he was
not bound to have any information or to frame any

opinion. But where a particular duty has been assumed,

it makes no difference that the speaking or writing of a

form of words an incident in the performance. If a

is

medical practitioner miscopies a formula from a pharma-

copoeia or medical treatise, and his patient is poisoned by

the druggist making it up as so copied, surely that is action-
able negligence, and actionable apart from any contract.
Yet his intention was only to repeat what he found in the
book. It is true that the prescription, even if he states it

to be taken out of the book, is his prescription, and he is

answerable for its being a be exactly copied

fit one ;
if it

from a current book of good repute which states it to be

applicable to such cases as the one in hand, that will be
evidence, but only evidence, that the advice was com-
petent.
Again the negligent misreadingan ancient record by
of
a professed palaeographist might well be a direct and
natural cause of damagesuch a person, being employed
;
if

under a contract with a solicitor, made a negligent mistake

to the prejudice of the ultimate client, is it clear that the
client might not have an action against him ? If not, he
may with impunity be negligent to the verge of fraud ;

for the solicitor, not being damnified, would have no cause

of action, or at most a right to nominal damages on the
contract. The
telegraph clerk's case is more like one of
these (we do not say they are precisely analogous) than
the mere reporting or repetition of supposed facts. There
remains, no doubt, the argument that liability must not be
indefinitely extended. But no one has proposed to abolish
the general rule as to remoteness of damage, of which the

importance, it is submitted, is apt to be obscured by con-

 EFFECTS OF EXTRANEOUS CONTRACTS. 489

triving hard and fast rules in order to limit the possible

combinations of the elements of liability. Thus it seems

that even on the American view damages could not be
recovered for loss arising out of an error in a ciphered

telegram, for the telegraph company would have no notice

of what the natural and probable consequences of error
would be (a).

Taking together all the matters hitherto discussed in Uncer-

this chapter, it appears that different views and tendencies renaming
have on different occasions prevailed even in the same court, ln En sllsl1
doctrine.
and that we are not yet in possession of a complete and
consistent doctrine. Fleming's case (b) is reconcilable, but

only just reconcilable, with Foulkes's case (c), and Dickson

v. Renter's Telegram Co. (d), though not directly opposed

to Boicen v. Hall (0), is certainly not conceived in the same

spirit.

(c) There are likewise cases where an innocent and even Character

a prudent person will find himself within his right, or a y

i^n^Jent

wrong-doer, according as there has or has not been a con-

tractbetween other parties under which the property or extraneous

lawful possession of goods has been transferred. If a man

fraudulently acquires property in goods, or gets delivery of

possession with the consent of the true owner, he has a real
though a defeasible title, and at any time before the con-
tract is avoided (be it of sale or any form of bailment) he
can give an indefeasible title by delivery over to a buyer
or lender for valuable consideration given in good faith (/).

() Cp. Sanders v. Stuart (1876) () 6 Q. B. Div. 333, 50 L. J.

1 C. P. D. 326, 45 L. J. C. P. 682. Q. B. 305.
(b} 4 Q. B. Div. 81. (/) See the principle explained,
(c}
5 C. P. Div. 157, 49 L. J. and worked out in relation to com -
C. P. 361. plicated facts, in Pease v. Gloahec,
(ct)
3 C. P. Div. 1, 47 L. J. L.R. 1 P. C. 219, 35 L. J. P. C. 66.
C. P. 1.
490 SPECIAL RELATIONS OF CONTRACT AND TORT.

On the other hand a man may obtain the actual control

and apparent dominion of goods not only without having
acquired the property, but without any rightful transfer of
possession. He may obtain possession by a mere trick, for
example by pretending to be another person with whom
the other party really intends to deal (#), or the agent of
that person (ti) In such a case a third person, even if he
.

has no means of knowing the actual possessor's want of

title, cannot acquire a good title from him unless the sale

is in market overt, or the transaction is within some special

statutory protection, as that of the Factors Acts. He

deals,however innocently, at his peril. In these cases
there may be hardship, but there is nothing anomalous.
It not really a contract between other parties that
is

determines whether a legal wrong has been committed or

not, but the existence or non-existence of rights of pro-

perty and possession rights available against all the
world which in their turn exist or not according as there

has been a contract, though perhaps vitiated by fraud as

between the original parties, or a fraudulent obtaining
of possession (i) without any contract. The question is

purely of the distribution of real rights as affording oc-

casion for their infringement, it may be an unconscious

infringement. A
man cannot be liable to A. for meddling
with A.'s goods while there is an unsettled question
whether the goods are A.'s or B.'s. But it cannot be
a proposition in the law of torts that the goods are A.'s
or B.'s, and it can be said to be, in a qualified sense, a

(ff} Gundy Lindsay, 3

v. App. possession in law, though a wrong-
Ca. 459, 47 L. J. Q. B. 481. ful possession, and the lawful pos-
Hard-man v. Booth, 1 H. & C. sessor of goods cannot at common
(K)
803, 32 L. J. Ex. 105. law steal them, except in the cases
" " and
(i)
It will be remembered that of breaking bulk the like,
the essence of trespass de bonis where it is held that the fraudulent
asportatis depriving the true
is dealing determines the bailment,
owner of possession a thief has :
 MEASURE OF DAMAGES, ETC. 491

proposition in the law of contract only because in the

common law property and the right to possession can on
the one hand be transferred by contract without delivery
or any other overt act, and on the other hand the legal
effect of a manual delivery or consignment may depend on

the presence or absence of a true consent to the apparent

purpose and effect of the act. The contract, or the absence

of a contract, is only part of the incidents determining the

legal situation on which the alleged tortious act operates.

There are two questions, always conceivably and often
practically distinct : Were the goods in question the goods
of the plaintiff ? Did the act complained of amount to a

trespass or conversion ? Both must be distinctly answered

in the affirmative to make out
the plaintiff's claim, and they

depend on quite different principles (k). There is therefore

no complication of contract and tort in these cases, but
only if we may so call it a dramatic juxtaposition.

IY. Measure of Damages and other Incidents of the

Remedy.
With regard the measure of damages, the same Measure of
to

principles are to a great extent applicable to cases of

contract and of tort, and even rules which are generally

peculiar to one branch of the law may be applied to the

other in exceptional classes of cases.
The liability of a wrong-doer for his act is determined,;
as we have seen, by the extent to which the harm suffered

by the plaintiff was a natural and probable consequence of

the act. This appears to be also the true measure of
" the rule with
liability for breach of contract ; regard to
remoteness of damage is precisely the same whether the

(k) See passim in the opinions delivered in Hollins v. Fowkr, L. IL

7 H. L. 757, 44 L. J. Q. B. 169.
492 SPECIAL RELATIONS OF CONTRACT AND TORT.

damages are claimed in actions of contract or of tort" (/) ;

the judgment of what is natural and probable being taken

as it would have been formed by a reasonable man in the
defendant's place at the date of the wrongful act, or the
conclusion of the contract, as the case may be. No doubt
there have been in the law of contract quite recent opinions
of considerable authority casting doubt on the rule of

Hadley Baxendale (m), and tending to show that a

v.

contractiDg party can be held answerable for special conse-

quences of a breach of his contract only if there has been
something amounting to an undertaking on his part to
bear such consequences on this view even express notice
;

of the probable consequences they be not in themselves

if

of a common and obvious kind, such as the plaintiff's loss

of a difference between the contract- and the market-price
of marketable goods which the defendant fails to deliver

would not of itself suffice (n) .

Rule as to But the Court of Appeal has more lately disapproved

conse-
this view, pointing out that a contracting party's liability
quential
damage
pay damages for a breach is not created by his agree-
:
to
how far
alike in ment to be liable, but is imposed by law. " A person
contract
and tort. contemplates the performance and not the breach of his
contract ;
he does not enter into a kind of second contract
to pay damages, but he is liable to make good those
injuries which he is aware that his default may occasion to
the contractee" (o).

(t)
M. R., The Notting Hill
Brett McHaffie (1878) 4 Q. B. Div. 670,
(1884) 9 P. Div. 104, 113, 53 L. J. per Bramwell L. J. at p. 674 ;

P. 56. Brett and Cotton L. JJ. are no less

(m] 9 Ex. 341, 23 L. J. Ex. 179 explicit. The time to be looked to

(1854). is that of entering into the con-

(n) Home v. Midland E. Co. tract :ib. In McMahon v. Field

(1873) Ex. Ch., L. R. 8 C. P. 131, (1881) 7 Q. B. Div. 591, 50 L. J.
43 L. J. C. P. 59. Q. B. 552, the supposed necessity of
(o) Hydraulic Engineering Co. v. a special undertaking is not put
 DAMAGES. 403

The general principle, therefore, is still the same in^

contract as in tort, whatever difficulty may be found in
working out in a wholly satisfactory manner in relation
it

to the various combinations of fact occurring in practice (p).

One point may be suggested as needful to be borne in
mind to give a consistent doctrine. Strictly speaking, it-
isnot notice of apprehended consequences that is material,
but notice of the existing facts by reason whereof those
consequences will naturally and probably ensue upon a
breach of the contract (q).

Exemplary or vindictive damages, as a rule, cannot be Vindictive

recovered in an action on a contract, and it makes no Of action
r
difference that the breach of contract is a misfeasance Of
capable of being treated as a wrong. Actions for breach of mar "
. . riage.
of promise of marriage are an exception, perhaps in law,
certainly in fact impossible to analyse the estimate
: it is

formed by a jury in such a case, or to prevent them from

giving, if so minded, damages which in truth are, and are
intended to be, exemplary (r) Strictly the damages are
.

"
by way of compensation, but they are almost always
considered by the jury somewhat in poenam" (s). Like
results might conceivably follow in the case of other

forward at all. Mr. J. I). Mayne, (q) According to Alderson B. in

though he still (4th ed. 1884) holds Hadley v. Baxendale, it is the know-
by Home v. Midland R. Co., very ledge of "special circumstances
pertinently asks where is the con- under which the contract was actu-
ally made
' '
sideration for such an undertaking. that has to be looked to,

(p) As to the treatment of con- i. e. the probability of the conse-

sequential damage where a false quence is only matter of inference,
statement ismade which may be (r) See Berry v. Da Costa (1866)
treated either as a deceit or as a L. R. 1 C. P. 331, 35 L. J. C. P.
broken warranty, see Smith v. Green 191.

(1875) 1 C. P. D. 92, 45 L. J. (*)

Le Blanc J. in Chamberlain
C. P. 28. v. Williamson (1814) 2 M. & S.

408, 414.
494 SPECIAL RELATIONS OF CONTRACT AND TORT.

breaches of contract accompanied with circumstances of

wanton injury or contumely.

Contracts In another respect breach of promise of marriage is like

on which
executors a tort : executors cannot without proof of
sue for it
cannot
sue. special damage to their testator's personal estate nor does ;

the action lie against executors without special damage (t) .

"
Executors and administrators are the representatives of
the temporal property, that the debts and goods of the
is,

deceased, but not of their wrongs, except where those

wrongs operate to the temporal injury of their personal
estate. But
in that case the special damage ought to be
stated on the record otherwise the Court cannot intend
;

it"(w). The same rule appears to hold as concerning

injuries to the person caused by unskilful medical treat-

ment, negligence of carriers of passengers or their servants,

and the although the duty to be performed was under
like,
a contract (#). Positive authority, however, has not been
found on the extent of this analogy. The language used
by the Court of King's Bench is at any rate not convincing,
for although certainly awrong is not property, the right
to recover damages for a wrong is a chose in action ;

neither can the distinction between liquidated and un-

liquidated damages afford a test, for that would exclude

causes of action on which executors have always been able
to sue. We
have considered in an earlier chapter the
exceptional converse cases in which by statute or otherwise
a cause of action for a tort which a person might have

(t) Finlay v. Chirney (1888) 20 cp. BccJcham v. Drake (1841) 8 M.

Q. B. Div. 494, 57 L. J. Q. B. 247. & W. at p. 854 1 Wms. Saund.
;

(it)
Chamberlain v. Williamson, 242 ; and see more in Williams on
2 M. & S. at p. 115. Executors, pt. 2, bk. 3, ch. 1, 1 ;

(x) Ibid. ; Willes J. in Alton v. and Raymond v. Fitch (1835) 2 C.

Midland X. Co. 19 C. B. N. S. at M. & B. 588.
p. 242, 34 L. J. C. P. at p. 298 ;
 ELECTION OF FORM OF ACTION. 495

sued on in his lifetime survives to his personal repre-

sentatives.

Where there was one cause of action with an option to

sue in tort or in contract, the incidents of the remedy

generally were determined once for all, under the old

common law practice, hy the plaintiffs election of his
form of action. But this has long ceased to be of

practical importance in England, and, it is believed, in

most jurisdictions.
 lor

APPENDIX A.

HISTOEICAL NOTE ON THE CLASSIFICATION OF THE

FOEMS OF PERSONAL ACTION.
(BY MR. F. W. MAITLAND.)

THE history of the attempt to classify the English personal actions

under the two heads of Contract and Tort will hardly be under-
stood unless two preliminary considerations are had in mind.
(1.) Between the various forms of action there were in old time

many procedural differences of serious practical importance. A

few of these would have been brought out by such questions as the
following :

(a) What the mesne process proper to this action

is ? Does one
begin with summons or with attachment ? Is there a
capias ad respondendum, or, again, is there land to be
seized into the king's hand ?

(b) What is the general issue? Is it, e. g., Nil debet, or Non
assumpsit, or Not guilty ?
(c) What mode of proof is open to the defendant ? Is this one
of the actions in which he can still wage his law ?
(d) What is the final process ? Can one proceed to outlawry ?
(e) How will the defendant be punished if the case goes against
him
Will he be merely amerced or will he be imprisoned
?

makes fine with the king ?

until he
In course of time, partly by statutes, partly under cover of
the procedure in the various personal actions was made
fictions,
more uniform ; but the memory of these old differences endured,
and therefore classification was a difficult task.
(2.) The list
of original writs was not the reasoned scheme of a

provident legislator calmly devising apt remedies for all conceivable

wrongs rather it was the outcome of the long and complicated
;

P. K K
498 APPENDIX A.

struggle whereby the English king at various times and under

various pretexts drew into his own court (and so drew away from
other courts communal, seignorial, ecclesiastical), almost all the
litigation of the realm. Then, in the thirteenth century, the
growth of Parliament prevented for the future any facile invention
of new remedies. To restrain the king's writ-making power had
been a main object with those who strove for Parliaments (a). The
completeness of the parliamentary victory is marked by the well-
known clause in the Statute of Westminster II. (&) which allows
the Chancery to vary the old forms so as to suit new cases, but
only new cases which fall under old law. A
use of this permission,
which we and over-cautious use, but which
are apt to think a tardy

may well have been all that Parliament would have suffered, gave
us in course of time one new form of action, namely, trespass upon
the special case, and this again threw out branches which came to
be considered as distinct forms of action, namely, assumpsit and
trover. Equity, again, met some of the new wants of new times,
but others had to be met by a stretching and twisting of the old
forms which were made to serve many purposes for which they
were not originally intended.
Now to Bracton writing in the middle of the thirteenth century,
while the king in his chancery and his court still exercised a con-
siderable power of making and sanctioning new writs (c), it may
have seemed very possible that the personal actions might be
neatly fitted into the scheme that he found provided in the Roman
books; they must be (1) ex contractu vel quasi, (2) ex maleficio vel
qtiasi(d). Personal actions in the king's court were by no means
very common such actions still went to the local courts. Perhaps
;

it is for this reason that he says very little about them perhaps ;

his work is unfinished at any rate, he just states this classification

;

but makes hardly any use of it. The same may be said of his
epitomators Britton(e) and Fleta (/). Throughout the middle ages

(a) See
a complaint by the (b) Stat. 13 Edw. I.(1285) c. 24.
bishops in 1257, Mat. Par. Chron. (c)
His doctrine as to the making
Maj. (ed. Luard) vol. vi. p. 363. of new writs will be found on fols.
New writs contrary to law are 413 414 b. See fol. 438 b for a
made in the Chancery without the writ invented by William of
consent of the council of the realm. Raleigh. In several other cases
So imder the provisions of Oxford Bracton notices that the writ has
(1258) the Chancellor is to swear been lately devised by resolution
that he will seal no writs save of the Court (de consilio curiae), e.g.
writs of course, without the order the Quare Ejecit, fol. 220.
of the king and of the council Fol. 102.
(d)
established by the provisions. See Vol. i. p. 156. Britton's equi-
(<?)

Stubbs, Select Charters, Part 6, valent for maleficium is trespass.

No. 4. (/) Fol. 120.
 FORMS OF ACTION. 499
the theory that personal actions may be arranged under these head-
ings seems to remain a sterile, alien theory. It does not determine
the arrangement of the practical books, of the Eegister, the Old
Natura Brevium, Fitzherbert's Natura Brevium, the Novae Narra-
tiones. Even Hale, when in his Analysis he mapped out the field
of English law, did not make it an important outline.
The truth seems to be that the most natural classification of
writs was quite
different. It would give us as its two main head-

ings Praecipe; (b) Si tefecerit securum.

(a)
(a) In one class we have writs beginning with Praecipe quod
reddat facial permittat. The sheriff is to bid the defendant
render permit) something, and only if this command be
(do,
ineffectual will the action proceed. To this class belong the writ
of right and other proprietary real actions, also debt (</), detinue,
account and covenant.
(b) In the other class the writ supposes that there is already a
completed wrong and a perfect cause of action in the king's court.
If the plaintiff finds pledges to prosecute, then the defendant must

appear and answer. To this class belong the possessory assizes,

trespass and all the forms developed out of trespass, yiz. case,
assumpsit, trover.
Much is made book which once was of
of this classification in a

good repute, a book to which Blackstone owed much, Sir Henry

Finch's Discourse on Law (h}. The historical basis seems this the :

king's own
court takes cognizance of a cause either because the
king's lawful precept has been disobeyed, or because the king's
peace has been broken.
But in order to assure ourselves that the line between breaches of
contractual obligation and other causes of action cannot have been
regarded as an elementary outline of the law by our mediaeval
lawyers, we have only
to recall the history of assumpsit. are We
obliged to say either that at some moment assumpsit ceased to be an
action ex maleftcio and became an action ex contractu, or (and this
seems historically the better way of putting it) that it was an
action founded not on contract, but on the tort done by breach of
some contractual or other duty voluntarily assumed. It must have
been difficult to hold that the forms of personal action could be
aptly distributed between tort and contract, when in the Eegister

(g) The writ

of debt in Glanvill, in Debt ;
see lib. 10, cap. 5.
lib. 10, cap. 2,is just the writ of Editions in 1613, 1636, 1678,
(h)
right with the variation that a and 1759. In the last of these see
certain sum of money due is sub- pp. 257, 261, 284, 296. Blackstone
stituted for a certain quantity of notices this classification in Com-
land. There maybe trial by battle ment. vol. iii. p. 274.
KK2
500 APPENDIX A.

actions founded on non-performance of an assumpsit occurred, not

even under the title of Case (for there was no such title) but
under the Trespass mixed up with assaults and asporta-
title of

tions, far
away from debt and covenant (i).
The same point may be illustrated by the difficulty which has
been felt in modern times of deciding whether detinue was ex
contractu or ex delicto. Bracton, fixing our terminology for all
time, had said (k) that there was no actio in rem for the recovery
of movables because the judgment gave the defendant the option
of paying the value instead of delivering the chattel. The
dilemma therefore of contract or tort was offered to claims to
which, according to Eoman notions, it was inapplicable. But
whether detinue was founded on contract or founded on tort, was
often debated and never well settled. During the last and the
earlier part of the present century the fact that in detinue one
might declare on a loss and finding (detinue sur trover) was taken
to prove that there was not necessarily any contract between the
parties (I). Opinion was swayed to the other side by the close
relation between detinue and debt (TW), a relation so close as to be
almost that of identity especially when debt was brought, not in
the debet and detinet, but in the detinet only(w). A middle
opinion was offered by the learned Serjeant Manning (o) that
detinue sur bailment was ex contractu, and detinue sur trover was
ex delicto; this would have allowed the question to turn on the
choice made by the plaintiff's pleader between two untraversable
fictions. A
recent decision of the Court of Appeal (p) shows
that the difficulty cannot occur in its old form. are no longer, We
even if once we were, compelled to say that all claims for delivery
of a chattel must be ex, contractu or all must be ex delicto, though
even the theory that every such claim is either ex contractu or ex
delicto has difficulties of its own, which might have been avoided

were we free to say that such a claim may be actio in rem.

Because of the wager of law assumpsit supplanted debt so also ;

() Registrum, fol. 109 b writs ;

M. & W. 42, 16 L. J. Ex. 11.
for not cutting down trees and not (m) Walker v. Needham (1841)
erecting a stone cross as promised, 4 Sc. N. B. 222 3 Man.
;
Gr. &
are followed immediately by a writ 557 ; Danby v. Lamb (1861) 11 C.
for entering a warren and carrying B. N. S. 423, 31 L. J. C. P. 17.
off goods by force and arms. " And indeed a writ of debt
(n)
(k) Fol. 102 b. in the detinet only, is neither more
(1}
Kettle v. Bromsall (1738) nor less than a mere writ of de-
Willes 118; Mills v. Graham (1804) tinue." Blackst. Comm. iii. 156.
1 B. & P. N. R. 140
(o) 3 Man. & Gr. 561, note.
Gledstane v.
;

Hewitt (1831) 1 Tyr. 445 ;

Broad- (p) Bryant v. Herbert (1878) 3
bent v. Ledward (1839) 11 A. & E. C. P. Div. 389, reversing S. C. ibid.
209 ;
Clements v. Flight (1846) 16 189, 47 L. J. C. P. 670.
 FORMS OF ACTION. 501

for a long while the work of detinue was done by trover. That
trover was in form ex delicto seems not to have been doubted, still
it often had to serve the purpose of a vindicatio. As Lord Mans-
" Trover is in form a
field said(g-), tort, but in substance an action
to try property. . . . An is not now ex inaleficio,
action of trover

though it is so in form founded on property."

;
but it is

For these among other reasons the attempt to force the English
forms into the Eoman scheme was not likely to prosper. Never-
theless the theory that the personal actions can be grouped under
contract and tort made way as the procedural differences between
the various forms were, in one way and another, obliterated.
Blackstone states the theory (r), but does not work it into detail ;

following the plan which he inherited from Hale, he treats debt,

covenant and assumpsit as remedies for injuries affecting property,
injuries affecting choses in action (s). In later books of practice
the various forms are enumerated under the two headings detinue ;

appears sometimes on one side of the line, sometimes on the

other ().
Apart from the statutes which will be mentioned presently, little

of practical importance has really depended on the drawing of this

line. The classification of the personal actions has been discussed
by the Courts chiefly in three contexts.
1. As to the joinder of actions. We find it said at a compara-
" causes upon contract which are in the right
tively early day that
"
and causes upon a tort cannot be joined (w). But the rules regu-
lating this matter were complicated, and could not be reduced to
this simple principle. In the main they turned upon those proce-
dural differences which have been noticed above. Thus it was
said that the actions to be joined must be such as have the same
mesne process and the same general issue, also that an action in
which, apart from statute (x), the defendant was liable to fine,
could not be joined with one in which he could only be amerced.
Assumpsit could not be joined with debt; on the other hand debt

Hambly v. Trott
(q) (1776) 1 Comm. iii. 117.

Cowp. 371, 373, 374. () Ibid. 153.

"Personal actions are such (t) Thus Tidd's
in Practice
(/)
whereby a man claims a debt, or (chap, i.) detinue is treated as ex
delicto ; in
personal duty, or damages in lieu Chitty's Pleading (chap,
thereof and likewise whereby a
; ii.) it is classed as ex contractu, but
man claims a satisfaction in da- hesitatingly.
mages for some injury done to his (u) Denison v. Ralphson (1682)

person or property. The former 1 Vent. 365, 366.

are said to be founded on contracts, 5 & 6 "W. & M. c. 12, abolish -
(x)
the latter upon torts or wrongs." ing the capiatur pro fine.
502 APPENDIX A.

could be joined with detinue (y}. This matter once very fertile of
disputes has become altogether obsolete.
2. As and (b) for personal
to the survival of actions (a) against

representatives. Here again it may be doubted whether the line of

practical importance has ever been that between contract and tort,
though the latter has often been mentioned in this context.
(a) If we look back far enough we find that it was only by slow
degrees that the executor came to represent the testator in at all a
general way (z). It was, for instance, a rule that the executor
could not be sued in debt if the testator could have waged his law.
At one time and before the development of assumpsit, this must
have meant that the executor could hardly ever be sued for money
due upon a simple contract. In Coke's day it was still arguable
that assumpsit would not lie against the executor (a), and not until
the contrary had been decided was it possible to regard the executor
as bearing in a general way the contractual liabilities of the testator.
On the other handseems to have been quite as early established
it

that the executor could be made to answer for some causes of action
which were not breaches of contract, i. e. where the estate had ,

been increased by the proceeds of the testator's wrong-doing (6).

But so long as the forms of action existed they were here of im-
portance. Thus the executor could not have been sued in trespass
or trover though the facts of the case were such that he could
have been sued in assumpsit for money had and received (c).
Trespass, it may be remembered, had but very gradually become
a purely civil action to start with it was at least in part a criminal
;

proceeding : so late as 1694 the defendant was, in theory, liable to

fine and imprisonment (d)
criminal proceedings founded on the
;

testator's misconduct could not be taken against the executor.

(y] The learning on this topic (b} Sir Henry Shcrring ton's Case
will be found in the notes to Cory- (temp. Eliz.) Sav. 40. See remarks
ton v. Lithebye, 2 Wins. Saund. on this case and generally on this
117 d. See also the observations piece of history by Bo wen L. J. in
of Bramwell L. J. in Bryant v. Phillips v. Homfray, 24 Ch. Div.
Herbert, 3 C. P. Div. 389391. 439, 457, 52 L. J. Ch. 833.
(z) See Bracton, fol. 407 b. (c) Hambly v. Trott, 1 Cowper
(a) Pinchon's Case (1611) 9 Rep. 371; Phillips v. Homfray, ubi sup.
86*. By this time the province (d) Stat. 5 & 6 W. & M. c. 12.
within which wager of law was The penal character of the writ of
permitted had been so much nar- trespass is well shown by the
rowed by judicial decision that clause of the Statutum Walliae
it had become possible to regard introducing that writ into "Wales,
as merely procedural the rule as " Justitiarius .... si invenerit
to debt against executors stated reum culpabilem, castiget eum per
above. prisonam vel per redemptionem
 FORMS OF ACTION. 503

(b) As regards the other question, what actions survive for an

executor or administrator, we find it early said that at common
law actions in contract do survive while actions in tort do not (e) ;
but already in 1330 a statute, which was very liberally construed,
had given the executor some actions which undoubtedly were the
outcome of tort (/). On the other hand it has been held even of
late years that (apart from all question as to real estate) an action
for breach of contract does not necessarily survive for or against
the personal representative ; the cause of action given by a breach
of promise to is not as a general rule one for which
many repre-
sentatives can sue or be sued (#). But the present state of the law
as to the survival of actions is discussed above (h).
3. Several discussions as to the line between contract and tort
were occasioned by the rule that while joint contractors must be
sued jointly the liability of joint tort-feasors is joint and several (?').
The earliest authority draws the distinction between praecipe quod ' '

"
reddat and debt on the one hand, and " trespass et huiusmodi " on
the other (&). But the antithesis of contract and tort crops up in
the seventeenth century (I). A. decision (m) of Lord Mansfield in
1770, that the objection to non-joinder of all joint contractors as
defendants can only be taken by plea in abatement deprived this
matter of much of its importance. Still the question whether there
has been breach of a joint contract, or a tort for which several are
liable severally as well as jointly, is of course a question which may
still arise and be difficult to answer (n).

Lastly we come to the statutory adoption of the theory that every

personal action must be founded either upon contract or upon tort.

The first statute which recognized this doctrine was seemingly the
County Courts Act, 1846 (o). Here, in a section dealing with costs,
the antithesisis
" founded on " founded on tort." The
contract,"
County Courts Act of 1850 (p) fell back on an enumeration of the
forms of action, placing covenant, debt, detinue and assumpsit in

vel per misericordiam, et per (k) P. 59.

dampna laeso restituenda secun- (i) See notes to Cdbell v. Vaughan,
dum et quantitatem 1 Wms. Saund. 291.
qualitatem
delicti, ita quod castigatio ilia sit (&) Br. Abr. Responder, 54.
aliis in exemplum, et timorem (/)
Boson v. Sandford, 3 Salk.
203 1 Shower 101 Rich v. Pil-
praebeat delinquendi." ; ;

(e)
Le Mason v. Dixon (1627) "W. kinyton, Carth. 171 Child v. Sands,
;

Jones, 173. Carth. 294 Bastard v. Hancock,

;

(/) Stat. 4 Edw. III. c. 7. De Carth. 361.

bonis asportatis in vita testatoris. (m) Rice v. Shute, 5 Burr. 2611.
(g) Chamberlain v. Williamson (n) See remarks of Lindley L. J.
(1814) 2 M. & S. 408 Unlay v.; Partnership, 5th ed. pp. 198-9.
Chirney, 20 Q. B. Div. 494, 57 L. J. (o)
9 & 10 Viet. c. 95, s. 129.
Q. B. 247. (p) 13 & 14 Viet. c. 61, s. 11.
504 APPENDIX A.

one class, and trespass, trover and case in another class. The
Common Law Procedure Act, 1852 (q), assumes in its schedule of
forms that actions are either "on contracts," or "for wrongs
" "
independent of contract; but sect. 74 admits that certain causes
of action may be considered to partake of the character both of
"
breaches of contract and of wrongs some very needless litigation
;

might have been saved had a similar admission been made in other
statutes.

By the County Courts Act of 1856 (r), costs in a certain event

were made to depend upon the question whether the action was
" an action of contract."
By the Common Law Procedure Act of
1860 (s), costs in a certain event were made to depend on the ques-
tion whether the action was " for an alleged wrong."
A section of the County Courts Act, 1867 (<), drew a distinction
as to costs between actions "founded on contract," and actions
" founded on tort."

Lastly the County Courts Act of 1888 in several of its sections

draws a distinction between "an action of contract " and " an action
of tort" (M), while elsewhere (x) it contrasts an action "founded on
"
contract with one "founded on tort."
The practical upshot, if any, of these antiquarian remarks is that
the courts of the present day are very free to consider the classifica-
tion of causes of action without paying much regard to an attempt
to classify the now
obsolete forms of action, an attempt which was
never very important or very successful an attempt which, as we
;

may now think, was foredoomed to failure.

(g} 15 & 16 Viet. c. 76. Midland It. Co. 3 Q. B. D. 23 ;

(r) 19 & 20 Viet. c. 108, s. 30. Fleming v. Manchester, $c. R. Co.

(s)
23 & 24 Viet. c. 126, s. 34. 4 Q. B. Div. 81.
(<) 30 & 31 Viet. c. 142, s. 5, (u) 51 & 52 Viet. c. 43, ss. 62,
Recent decisions are Bryant v. 65, 66.
Herbert, 3 C. P. D. 189, 389, (x] 51 & 52 Viet. c. 43, s. 116.
47 L. J. C. P. 670; Pontifex v.
 505

APPENDIX B.

EMPLOYEES' LIABILITY ACT, 1880.

(43 & 44 VICT. c. 42.)

An Act to extend and regulate the Liability of Employers to

make Compensation for Personal Injuries suffered by
Workmen in their service. [7th. September, 1880.]
BE it enacted by the Queen's most Excellent Majesty, by and with
the advice and consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and by the autho-
rity of the same, as follows :

1. Where after the commencement of this Act personal injury is Amend -

caused to a workman ment of
law.
(1.) By reason of any defect (a) in the condition of the ways (6),
works, machinery, or plant (c) connected with or used in
the business of the employer (d ) or ;

(2.) By reason of the negligence of any person in the service

of the employer who has any superintendence entrusted to

(a) This
must be a defect show- Garnett (1885) 16 Q. B. D. 52. A
ing some negligence of the em- dangerous or improper collocation
ployer Walsh v. Wliiteley (1888)
;
of things not defective in them-
21 Q. B. Div. 371, 57 L. J. Q. B. selves may be a defect Weblin v.
;

586. Ballard (1886) 17 Q. B. D. 122, 55

(b)
An object left sticking out L. J. Q. B. 395 but see Thomas
;

over a way is not a defect in the v. Quartermaine, 18 Q. B. Div. 685 ;

condition of the way McGiffin v.

;
and qu. whether Weblin v. Ballard
Palmer's Shipbuilding Co. (1882) 10 be right, per Bowen L. J. at p.
Q. B. D. 5, 52 L. J. Q. B. 25. 699.
' '
Defect in condition
' '
includes (c) "Plant" may include horses,
unfitness for safe use, whether from and vice in a horse is a " defect " ;

original fault of structure or want Yarmouth v. France (1887) 19 Q. B.

of repair; Heske v. Samuehon (1883) Div. 647, 57 L. J. Q. B. 7.
12 Q. B. D. 30, 53 L. J. Q. B. 45 ; (d) The words of this section do
or insufficiency of any part of the not apply to ways, works, &c.
plant for the particular purpose it which are in course of construc-
is being used for Cripps v. Judge
; tion, and not yet sufficiently com-
(1884) 13 Q. B. Div. 583, 53 L. J. plete to be used in the business ;

Q. B. 517. As to sufficiency of Howe v. Finch (1886) 17 Q. B. D.

evidence on this point, Paley v. 187.
506 APPENDIX B.

him (e) whilst in the exercise of such superintendence (/) ;

or

(3.) By reason of the negligence of any person in the service of

the employer to whose orders or directions the workman
at the time of the injury was bound to conform, and did

conform, where such injury resulted from his having so

conformed (</) ;
or
(4.) By reason of the act or omission of any person in the
service of the employer done or made in obedience to the
rules or byelaws of the employer, or in obedience to par-
ticular instructions given by any person delegated with
the authority of the employer in that behalf ; or
(5.) By reason of the negligence of any person in the service of
the employer who has the charge or control (h) of any
signal, points, locomotive engine, or train upon a rail-

way (*),

the workman, or in case the injury results in death, the legal per-
sonal representatives of the workman, and any persons entitled in
case of death (&), shall have the same right of compensation and
remedies against the employer as if the workman had not been a
workman of nor in the service of the employer, nor engaged in his
work (I}.

(e)
See interpretation clause, not to claim compensation under
sect. 8. the Act, and such contract is a bar
(/) Oslorne v. Jackson (1883) 11 to any claim under Lord Camp-
Q. B. D. 619. beU's Act Griffiths V Dudley (1882)
;
.

(ff)
Orders or directions within 9 Q. B. D. 357, 51 L. J. Q. B. 543.
the meaning of this sub- section (I) This evidently means only
need not be express or specific; that the defence of "common em-
Millward v. Midland R. Co. (1884) " shall not be
ployment available
14 Q. B. D. 68, 54 L. J. Q. B. 202. for the master not that the facts
;

(h) The duty of oiling and clean- and circumstances of the work-
ing points is not "charge or control"; man's employment are not to be
Gibbs v. G. W. R. Co. (1883-4) 11 considered, e.g. if there is a ques-
Q. B. D. 22, 12 Q. B. Div. 208, 53 tion of contributory negligence. Nor
L. J. Q. B. 543. Any one having does it exclude the defence that the
authority to set a line of carriages workman in fact knew
and accepted
or trucks in motion, by whatever the specific risk Thomas v. Quar-
;

means, is in charge or control of a termaine (1887) 18 Q. B. Div. 685,

train Cox v. G. W. -R. Co. (1882)
;
56 L. J. Q. B. 340; but such de-
9 Q. B. D. 106. fence is not admissible where the
(t) "Railway"
has its natural risk was created by breach of a
sense, and is not confined to rail- statutory duty Baddeley v. Earl
;

ways made or used by railway Granville, 19 Q. B. D. 423, 56 L. J.

companies Doughty v. Firbank
; Q. B. 501 and a workman's con-
;

(1883) 10 Q. B. D. 358, 52 L. J. tinning to work with defective

Q. B. 480. plant after he has complained of the
(k) A workman can bind him- defect to the employer or foreman,
self by contract with his employer who has refused or neglected to
 EMPLOYERS' LIABILITY ACT, 1880. 507

2. A workman shall not be entitled under this Act to any right Excep-
of compensation or remedy against the employer in any of the tions to
following cases ; that is to say, *t f
(1.) Under sub-section one of section one, unless the defect law.
therein mentioned arose from, or had not been discovered
or remedied owing to the negligence of the employer, or
of some person in the service of the employer, and en-
trusted by him with the dutyof seeing that the ways,
works, machinery, or plant were in proper condition (m).

(2.) Under sub-section four of section one, unless the injury

resulted from some impropriety or defect in the rules,
byelaws, or instructions therein mentioned provided that
;

where a rule or byelaw has been approved or has been

accepted as a proper rule or byelaw by one of Her
Majesty's Principal Secretaries of State, or by the Board
of Trade or any other department of the Government,
under or by virtue of any Act of Parliament, it shall not
be deemed for the purposes of this Act to be an improper
or defective rule or byelaw.

(3.) In any case where the workman knew of the defect or neg-
ligence which caused his injury, and failed within a rea-
sonable time to give, or cause to be given, information
thereof to the employer or some person superior to him-
self in the service of the employer, unless he was aware
that the employer or such superior already knew of the
said defect or negligence (n).
3. The amount under this Act shall Limit of
of compensation recoverable
not exceed such sum be found be 8um re ~
may as to equivalent to the esti-
mated earnings, during the three years preceding the injury, of a as com _
person in the same grade employed during those years in the like pensation.
employment and in the district in which the workman is employed
at the time of the injury.
4. An action for the recovery under this Act of compensation for Limit of
an injury shall not be maintainable unless notice (o) that injury has ^ me ^or
recovery of
compen-
amend not conclusive to show
it, is the right of action under s. 1 :
voluntary acceptance of the risk; Thomas v. Quartermaine, note (/).
Yarmouth v. France (1887) 19 Q. B. (o) This notice must be in writ-
Div. 647, 57 L. J. Q. B. 7. ing Moyle v. Jenkins (1881) 8 Q.
;

(in) See Kiddle v.

Lovett (1885) B. D. 116, 51 L. J. Q. B. 112, and
16 Q. B. D. 605, 610. must contain in writing- all the
(n) This sub-section creates a particulars required by sect. 7 ;
new and special statutory defence, Keen v. Millwall Dock Co. (1882)
see Weblin v. Ballard (1886) 17 Q. 8 Q. B, Div. 482, 51 L. J. Q. B.
B. D. 122, 125, 55 L. J. Q. B. 395. 277.
It does not enlarge by implication
508 APPENDIX B.

been sustained is given within six weeks, and the action is com-
menced within six months from the occurrence of the accident
causing the injury, or, in case of death, within twelve months from
the time of death Provided always, that in case of death, the want
:

of such notice shall be no bar to the maintenance of such action if

the judge shall be of opinion that there was reasonable excuse for
such want of notice.
Money 5. There shall be deducted from any compensation awarded to
paya e
anv wor]tmailj or representatives of a workman, or persons claiming
penalty to by, under, or through a workman in respect of any cause of action
be de-
arising under this Act, any penalty or part of a penalty which may
n com- nave b een paid in pursuance of any other Act of Parliament to such
pensation workman, representatives, or persons in respect of the same cause
under Act. o f action and where an action has been
; brought under this Act by
any workman, or the representatives of any workman, or any per-
sons claiming by, under, or through such workman, for compensa-
tion in respect of any cause of action arising under this Act, and

payment has not previously been made of any penalty or part of a

penalty under any other Act of Parliament in respect of the same
cause of action, such workman, representatives, or person shall not
be entitled thereafter to receive any penalty or part of a penalty
under any other Act of Parliament in respect of the same cause of
action.
Trial of 6. Every action for recovery of compensation under this
(1.)
actions.
^ c^ brought in a county court, but may, upon the applica-
ghaii be
tion of either plaintiff or defendant, be removed into a superior
court in like manner and upon the same conditions as an action
commenced in a county court may by law be removed (p}>

(2.) Upon the trial of any such action in a county court

before the judge without a jury one or more assessors may be
appointed for the purpose of ascertaining the amount of compen-
sation.

(3.) For the purpose of regulating the conditions and mode of

appointment and remuneration of such assessors, and all matters of
procedure relating to their duties, and also for the purpose of con-
solidating any actions under this Act in a county court, and other-
wise preventing multiplicity of such actions, rules and regulations

(p) Proceedings
in the county Q. B. D. 818, 54 L. J. Q. B. 330 ;

court cannot be stayed under sect. affirmed in C. A.,W. N. 1885, p. 95.

39 of the County Courts Act, 1856. As to grounds for removal, see
That section applies only to actions Munday v. Thames Ironworks Co.
which might have been brought in (1882) 10 Q. B. D. 59, 52 L. J.
the Superior Court; Reg. v. Judge Q. B. 119.
of City of London Court (1885) 14
 EMPLOYERS' LIABILITY ACT, 1880. 500

may bo made, varied, and repealed from time to time in the same
manner as rules and regulations for regulating the practice and

procedure in other actions in county courts.

" "
County court shall, with respect to Scotland, mean the
" Sheriff's
Court," and shall, with respect to Ireland, mean the
" Civil Bill Court."
In Scotland any action under this Act may be removed to the
Court of Session at the instance of either party, in the manner
provided by, and subject to the conditions prescribed by, section
nine of the Sheriff Courts (Scotland) Act, 1877. 40 & 41
Viet. c. 50.
In Scotland the sheriff may conjoin actions arising out of the
same occurrence or cause of action, though at the instance of
different parties and in respect of different injuries.
7. Notice in respect of an injury under this Act shall give the Mode of
name and address of the person injured, and shall state in ordinary serving
language the cause of the injury(g ) and the date at which it was
r

sustained, and shall be served on the employer, or, if there is more

than one employer, upon one of such employers.
The notice may be served by delivering the same to or at the
residence or place of business of the person on whom it is to be
served.
The notice may be served by post by a registered letter
also
addressed to the person on whom it is to be served at his last known
place of residence or place of business and, if served by post, shall
;

be deemed to have been served at the time when a letter containing

the same would be delivered in the ordinary course of post and, in;

proving the service of such notice, it shall be sufficient to prove

that the notice was properly addressed and registered.
Where the employer is a body of persons corporate or unincor-
porate the notice shall be served by delivering the same at or by

sending it by post in a registered letter addressed to the office, or,

if there be more than one office, any one of the offices of such body.

A
notice under this section shall not be deemed invalid by reason
of any defect or inaccuracy (r) therein, unless the judge who tries
the action arising from the injury mentioned in the notice shall be
of opinion that the defendant in the action is prejudiced in his
defence by such defect or inaccuracy, and that the defect or in-

accuracy was for the purpose of misleading.

(q] It need not state

the cause of Q. B. 452.
action with legal accuracy Clark-
; (r) Stone v.
Hyde (1882) 9 Q. B.
son v. Mmgrave (1882) 9 Q. B. D. D. L. J. Q. B. 452 Carter
76, 51 ;

386, 51 L. J. Q. B. 525 cp. Stone

;
v. Drysdale, 12 Q. B. D. 91.
v. Hyde, 9 Q. B. D. 76, 51 L. J.
510 APPENDIX B.

Defini- 8. For the purposes of this Act, unless the context otherwise
tions.
requires,
The expression person who has superintendence entrusted to
' '

him " means a person whose sole or principal duty is that of

superintendence, and who is not ordinarily engaged in manual
labour (s} :

The expression " employer" includes a body of persons corporate

or unincorporate :

The expression "workman" means a railway servant and any

38 &39 person to whom the Employers and Workmen Act, 1875,
Viet. c. 90.
applies ().
Com- 9. This Act shall not come into operation until the first day of
mence-
ment of January one. thousand eight hundred and eighty-one, which date
Act. is in this Act referred to as the commencement of this Act.
Short 10. This Act be cited as the Employers' Liability Act, 1880,
may
title. and shall continue in force till the thirty-first day of December one
thousand eight hundred and eighty- seven, and to the end of the
then next Session of Parliament, and no longer, unless Parliament
shall otherwise determine, and all actions commenced under this
Act before that period shall be continued as if the said Act had not
expired.
[The Act was continued in 1888 by a special Act, and in 1889 by
the Expiring Laws Continuance Act.]

(s) Shaffers v. General Steam tract with an employer, whether

Navigation Co. (1883) 10 Q. B. D. the contract be made before or
356, 52 L. J. Q. B. 260; cp. and after the passing of this Act, be
dist. Osborne v. Jackson (1883) 11 express or implied, oral or in
Q. B. D. 619 Kellard v. Rooke
; writing, and be a contract of ser-
(1888) 21 Q. B. Div. 367, 57 L. J. vice or a contract personally to exe-
Q. B. 599. The difference between cute any work or labour;" 38 &
a foreman who sometimes lends 39 Viet. c. 90, s. 10. This definition
a hand and a workman who some does not include an omnibus con-
times gives directions is in itself, ductor Morgan v. London General
;

of course, a matter of fact. Omnibus Co. (1884) 13 Q. B. Div.

" Nor the
() Any person [not being a 832, 53 L. J. Q. B. 352.
domestic or menial servant] who, driver of a tramcar : Cook v. JV.
being a labourer, servant in hus- Metrop. Tramways Co. (1887) 18 Q.
bandry, journeyman, artificer, B. D. 683, 56 L. J. Q. B. 309.
handicraftsman, miner, or other- It does include a driver of carts, &c.,
wise engaged in manual labour, who also has to load and unload the
whether under the age of twenty - goods carried Yarmouth v. France
:

one years or above that age, has (1887) 19 Q. B. Div. 647, 57 L. J.

entered into or works under a con- Q. B. 7.
 511

APPENDIX C.

STATUTES OF LIMITATION.

An Actefor lymytacion of Actions and for avoyding of Suits

,
in
Laive.
(21 JAMES I. c. 16.)

S. 3. And befurther enacted, that all accions of trespas, quare

it

dausum fregit, all accions of trespas, detinue, accion BUT trover and
replevyn for taking away of goods and cattell, all accions of accompt
and uppon the case, other then such accompts as concerne the trade
of merchandize betweene marchant and marchant, their factors or
servants, all accions of debt grounded upon any lending or contract
without specialtie, all accions for arrerages of rents, and all accions
of assault menace battery wounding and imprisonment, or any of
them which shalbe sued or brought at any tyme after the end of
this present session of parliament shalbe commenced and sued within
the tyme and lymytacion hereafter expressed, and not after (that is
to saie) the said accions uppon the case (other then for slander,) and
the said accions for accompt, and the said accions for trespas debt
detinue and replevin for goods or cattell, and the said accion of
trespas, quare clausum fregit, within three yeares next after the
end of this present session of parliament, or within sixe yeares next
after the cause of such accions or suite, and not after and the said ;

accions of trespas of assault battery wounding imprisonment, or

any them, within one yeare next after the end of this present
of
session of parliament, or within foure yeares next after the cause of
such accions or suite, and not after and the said accions uppon
;

the case for words, within one yeare after the end of this present
session of parliament, or within two yeares next after the words

spoken, and not after. . . .

S. 7. Provided neverthelesse, and be further enacted, that if

it

any person or persons that is or shalbe intituled to any such accion

512 APPENDIX C.

of trespas detinue accion sur trover replevin accions of

acconipts
accions of debts, accion of trespas for assault menace
battery
wounding or imprisonment, accions uppon the case for words, bee
or shalbe at the tyme of any such cause of accion given or accrued,
come within the age of twentie-one yeares, feme covert, non
fallen or

composs mentis, imprisoned or beyond the seas, that then such per-
son or persons shalbe at libertie to bring the same accions, soe as
they take the same within such times as are before lymitted, after
theircoming to or being of full age, discovert, of sane memory, at
large and retomed from beyond the seas, as other persons having
no such impediment should have done.

An Act for the Amendment of the Law and the better Advance-
ment of Justice.

(4 & 5 ANNE, c. 3) (a).

S. 19. And
be it further enacted, by the authority aforesaid, that
ifany person or persons against whom there is or shall be any such
cause of suit or action for seamen's wages, or against whom there
shall be any cause of action of trespass, detinue, action sur trover
or replevin for taking away goods or cattle, or of action of account,
or upon the case, or of debt grounded upon any lending or contract,
without speciality of debt for arrearages of rent, or assault, menace,
battery, wounding and imprisonment, or any of them, be or shall
be at the time of any such cause of suit or action, given or accrued,
fallen or come beyond the seas, that then such person or persons,
who is or shall be entitled to any such suit or action, shall be at
liberty to bring the said actions against such person or persons
after their return from beyond the seas (so as they take the same
after their return from beyond the seas), within such times as are
respectively limited for the bringing of the said actions before by
this Act, and by the said other Act made in the one and twentieth

year of the reign of King James the First.

(a) So in the Statutes of the

Realm and Revised Statutes; c. 16 in
other editions.
 STATUTES OF LIMITATION. 513

An Act amend the Laivs of England and Ireland

to affecting
Trade and Commerce.

(MERCANTILE LAW AMENDMENT ACT, 1856, 19 & 20 VICT. c. 97,

s. 12.)
No
part of the United Kingdom of Great Britain and Ireland,
nor the Islands of Man, Guernsey, Jersey, Alderney, and Sark, nor
any islands adjacent to any of them, being part of the dominions
of Her Majesty, shall be deemed to be beyond seas within the

meaning of the Act of the fourth and fifth years of the reign of
Queen Anne, chapter sixteen (6), or of this Act.

(V)
This is chap. 3 in the Statutes of the Realm.

P. LL
514

APPENDIX D.

CONTEIBUTOKY NEGLIGENCE IN EOMAN LAW.

CONTRIBUTORY negligence, and the allied topics considered in the

text, did not escape the Eoman lawyers, but they are treated only
in an incidental manner and no complete theory is worked out.
The passages bearing on the point in the Digest " Ad legem Aqui-
liam" (ix. 2) are the following:
L. 9 4 (Ulpian). Sed si per lusum iaculantibus servus fuerit
occisus, Aquiliae locus est : sed si cum alii in campo iacularentur
servus per eum locum transierit, Aquilia cessat, quia non debuit per
campum iaculatorium iter intempestive facere. Qui tamen data
opera in eum iaculatus est, utique Aquilia tenebitur.
" data
It is not clear whether the words opera" are intended to
cover the case of reckless persistence in the javelin-throwing after
the danger to the slave who has put himself in the way is manifest.
There can be no doubt however that Ulpian would have considered
such conduct equivalent to dolus. With this explanation, the
result coincides with the English rule.
L. 11, pr. (Ulpian). Item Mela scribit, si, cum pila quidam
luderent, vehementius quis pila percussa in tonsoris manus earn
deiecerit et sic servi quern tonsor habebat [al. radebat] gula sit

praecisa adiecto cultello : in quocumque eorum culpa sit, eum lege

Aquilia teneri. Proculus in tonsore esse culpam: et sane si ibi
tondebat ubi ex consuetudine ludebatur vel ubi transitus frequens
erat, est quod ei imputetur quamvis nee illud male dicatur, si in
:

loco periculoso sellam habeiiti tonsori se quis commiserit, ipsum de

se queri debere.
Mela seems to have thought it a question of fact, to be deter-
mined by closer examination of the circumstances, whether the
barber, or the player, or both, were in culpa. Probably the ques-
tion he mainly considered was the proper form of action. Proculus
held the barber only to be liable. Ulpian agrees that there is
negligence in his shaving a customer in a place exposed to the
 CONTRIBUTORY NEGLIGENCE IN ROMAN LAW. 515

accident of a stray ball, if the evidence shows that he did so -with

notice of the danger ; but he adds that the customer, if he in turn
chose to come and be shaved in a dangerous place, has only his
own want of care to thank for his hurt. To obtain this result it is
assumed that the danger is equally obvious to the barber and the
customer it is likewise expressly assumed, as a condition of im-
;

puting culpa to either of them, that the game is carried on in an

accustomed and convenient place. Given those facts, English law
would arrive at the same result in a slightly different form. The
players would not be bound to anticipate the rashness of the barber,
and the barber, though bound to provide reasonable accommodation
for his customers, would not be bound to warn them against an
external source of risk as obvious to them as to himself. It would
therefore probably be held that there was no evidence of negligence
at all as against either the players or the barber. If the game, on
the other hand, were not being carried on in a lawful and convenient
place, not only the player who struck the ball would be liable, but
probably all concerned in the game.
L. 28 (Paulus). Pr. (A man who makes pitfalls in a highway is

liable under the lex Aquilia for consequent damage otherwise if :

in an accustomed place). 1. Haec tamen actio ex causa danda est,

id est si neque denuntiatum est neque scierit aut providere potu-

erit et multa huiusmodi deprehenduntur, quibus summovetur
:

petitor, si evitare
periculum poterat.
This comes very near the language of our own authorities.
L. 31 (Paulus). Si putator ex arbore ramum cum deiceret vel
machinarius hominem praetereuntem occidit, ita tenetur si is in
publicum decidat nee ille proclamavit, ut casus eius evitari possit.
Sed Mucius etiam dixit, si in private idem accidisset, posse de culpa
agi :
culpam autem quod cum a diligente provider! poterit (a)
esse,
non esset provisum, aut turn denuntiatum esset cum periculum
evitari non possit.
Cp. Blackst. Comm. iv. 192, supra, p. 394. Here a person who
is hurt in spite of the warning is not necessarily negligent as if ;

for example he is deaf and cannot hear the warning but this is ;

immaterial ground of the other not being liable is that he

;
for the
has duty of a prudent man.
fulfilled the
The words "vel machinarius" spoil the sentence; they are too
much or too little. One would expect " vel machinarius ex aedibus
lapidem," or the like. The passage as it stands can hardly be as

(a) Sic MS. Flor.,

which Momm- Latinity would require potuisset.
sen's text reproduces, but it is not
" Possit" ad
fin. should obviously
Latin. Potuerit is probably the be " posset, " and is so corrected in
true reading, though Augustan other edd.

LL2
516 APPENDIX P.

Paulus wrote it (though it is likely enough to be as Tribonian

" vel machinarius " is
edited it), and it seems more probable that
an interpolation than that other words have been omitted.
Elsewhere Paulus says, Sent. Eec. I. 15 3 Ei qui irritatu suo
:

feram bestiam vel quamcunque aliam quadrupedem in se prori-

taverit, itaque damnum ceperit [so Huschke :
"eaque damnum
vulg.
dederit," which does not seem necessarily wrong], neque in eius
dominum neque in custodem actio datur.
This a case, according to English terminology, not of con-
is

tributory negligence, but of no evidence of negligence in the

defendant, the plaintiff's damage being due wholly to his own act.
 517

DEAFT OF A

CIVIL WRONGS BILL,

PREPARED FOR THE GOVERNMENT OF INDIA.

PEEFATOEY NOTE.
TOWARDS the end of 1882 I was instructed by the Govern-
ment of India to prepare a draft Bill to codify the law of
Civil Wrongs, or so much of it as might appear to be of

general practical importance in British India. The draft

was constructed pari passu with the writing of the present
book, or very nearly so, and it was provisionally completed
in 1886 it is now published with the consent of the
;

Secretary of State for India. The text is given as it then

stood, but the notes which accompanied it are consider-

ably abridged. I have inserted in square brackets a few

additional references and remarks, chiefly made necessary
by important decisions given since the draft was completed.
The Government of India has not finally decided whether
it is desirable to codify the law on the subject at present.
Sir Henry Maine thought ten years ago that the time was

ripe for it (a) ;

but I understand that a considerable

majority of the opinions which have lately been collected

(a) Mr. Ilbert states, L. Q. R. which " dwelt chiefly on the im-
v. 358-9, that H.in 1879 Sir portance of codifying the Law of
Maine drew up a memorandum Torts."
518 INDIAN CIVIL WRONGS BILL.

from judicial and other officers in India are unfavourable

to action.
It may be proper to explain that the draft as it stands
is not the mere production of an English lawyer un-

acquainted with India, but represents a certain amount of

consideration and discussion by specially competent critics.
In the preparation of the Bill I had, in particular, the
advantage of constant criticism from Sir A. Macpherson
and Sir William Markby, who (I need hardly say) were
excellently qualified both by their English learning and
by their Indian judicial experience; and, without assuming
to make either of
those learned persons at all answerable for

my work, I ought to say that their criticism was the direct

cause of material improvement in several points. careful A
memorandum on the earlier parts of the draft was prepared
by Mr. (now Justice) Syed Mahmud, and to this also I am
indebted for good suggestions. Further, I endeavoured,
so far as I had opportunity in England, to procure

criticism and suggestions from Indian judicial and execu-

with reference to the possible working of a

tive officers,

code of Civil Wrongs in rural districts and in the non-

regulation Provinces. Although such opportunities were

limited, I thus had the benefit of acute and valuable
remarks of which the substance was embodied in the draft
or in the notes to it. The letter of my instructions would
have justified me
merely stating in the form of a
in

declaratory Act what I conceived to be the English law,

and leaving all questions of Indian law and usage to be
dealt with separately by the Government of India ;
but
such a course did not appear to be reasonably practicable.
The reader will therefore bear in mind that in certain
places the draft Bill deliberately departs from existing
English law. Special attention is called to all such
departures, and the reasons for them indicated.
 TABLE OF CONTENTS. 519

TABLE OF CONTENTS.
Preliminary. 23. Harm from voluntary exposure
to risk.
1. Short title.
24. Acts done with consent.
Extent.
25. Act done on emergency for a
2. Saving of rights, remedies and
enactments independent of person's benefit without con-
sent.
Act.
26. Acts causing slight harm.
3. Repeal of enactments. 27. Private defence.
4. Interpretation clause.
5. Arrangement of Act.

SPECIAL PART.
CHAPTER III.
GENERAL PART. Assault and False Imprisonment.
CHAPTER I.
28. Assault.
29. False imprisonment.
General Principles of Liability.
30. Exemplary damages.
6. Wrongs and wrong-doers.
7. Saving of lawful exceptions
independent of Act. CHAPTER IV.
8. Liability for wilful harm and
unauthorized dealing with Defamation.
property. 31 Saving and exclusion of Penal
9. Liability for harm not wilfully Code as to defamation.
done by breach or omission Saving of criminal jurisdiction
or neglect of legal duty, or by on other grounds.
negligence. 32. Defamation defined.
10. Liability for consequences. 33. Construction of words com-
11. Survival of liabilities and rights
plained of as defamatory.
to representatives. 34. Responsibility for statements
12. Liability for wrong unaffected
repeated on hearsay.
by the same fact amounting 35. Fair criticism is not defama-
to an offence. tion.
13. Liability for wrongs of agent. 36. Fair public reports are not de-
14. Liability for wrongs of servant. famation.
15. Joint wrongs. 37. Exceptions on grounds of public
policy
(1) Truth in substance.
(2) Statements in course of
CHAPTER II.
judicial proceedings or
General Exceptions. legislative debate.
16. Protection of judicial officers 38. (1) Statements on privileged
occasions.
executing judicial orders.
(2) Immunity
of statements in
17. Protection of executive officers
and persons executing legal good faith on privileged
duties. occasions.
18. Protection of quasi- judicial
acts.
19. Protection of acts of lawful CHAPTER V.
authority.
20. Protection of acts done under Wrongs against Good Faith.
39. Deceit.
authority conferred by law.
21 . Accidental harm without negli- 40. Deceit defined.
41. Slander of title.
gence.
22. Harm incident to exercise of 42. Malicious prosecution.
other's common rights. 43. Abuse of process of Court.
520 INDIAN CIVIL WRONGS BILL.

CHAPTER VI. 60. What persons are liable for a

nuisance.
Wrongs to Property. 61. Concurrent civil and criminal
44. Trespass defined. jurisdiction in case of special
45. Protection of apparent right to damage from public nuisance.
possession.
46. Trespass by possessor for limited
purpose exceeding his right.
CHAPTER VIII.
47. Mistake does not generally ex- Of Negligence.
cuse trespass. 62. Negligence and diligence.
Immunity of certain ministerial 63. Evidence of negligence.
actions.
64. Contributory negligence.
48. Mere claim of right cannot be
65. Collateral negligence imma-
trespass. terial.
49. Licence defined.
66. Action under stress of danger
50. Effect of licence.
caused by another's negli-
51. Time of grace after revocation
gence.
of licence.
67. Right to rely on other's dili-
52. True owner's right of recap-
gence, and take lesser risk to
ture.
avoid greater.
68. Custody of dangerous things.
69. Liability of occupiers of pro-
CHAPTER VII.
perty.
Of Nuisance. 70. Position of licensees using pre-
mises.
53. Special damage from public
nuisance.
54 .
Liability for private nuisance. CHAPTER IX.
55. Private nuisance defined.
56. Pre-existence of nuisance im-
Of Damages for Civil Wrongs.
material. 11. Measure of damages in general.
72. Damages for injury to specific
57. Same facts may be distinct
nuisance to several persons. property.
58. Co -existence of other nuisances 73. Aggravation or mitigation of
no defence. damages.
59. When owner out of possession
can sue for nuisances. THE SCHEDULE.

A Bill to define and amend certain parts of the Law

of Civil Wrongs.

Preliminary.
Short title. J This Act be cited as the Civil "Wrongs Act,
t
may
n 18 and
Com- ;

mence- It shall come into force on the of 18

ment.
day
Extent. It extends to the whole of British India.

Saving of 2. This Act does not affect any legal right or remedy,
remedies or any enactment creating or limiting rights or remedies.
and enact-
 GENERAL PART. 521

which not abrogated or repealed by this Act or incon- ments in-

is
. , ,
.,1 f ., . .
dependent
sistent with any express provision 01 it. of Act.

3. The Acts mentioned in the schedule hereto are hereby Repeal of

repealed to the extent specified in that schedule.

4. In this Act, unless there be something repugnant in interpre-

the subject or context, clause.

" "
Court includes every Court, judge, and magistrate
and officer, having jurisdiction to hear and determine the
suit or matter in question :

" Good faith" implies the use of due care and attention :

" "
Grievous hurt means any of the kinds of hurt which
are so designated in the Indian Penal Code, section 320. XLV. of
I860.

5, This Act is arranged as follows : Arrange-

ment of
[See Table of Contents prefixed. In the original draft this clause was Act.
left blank pending further revision.]

GENEEAL PAET.

CHAPTER I.

GENERAL PRINCIPLES OF LIABILITY.

6. a wrong-doer who does or omits to do Wrongs
Every one is

anything whereof the doing or omission respectively is by ^ong-

doers.
this Act declared to be a wrong.

thereby becoming entitled to a legal remedy

Any person
against the wrong-doer is said to be wronged by him.

7. The liabilities Act are subject to

declared by this Saving of
all lawful grounds of exception, justification and excuse, ceptions
whether expressed in this Act or not, except so far as they
are varied by this Act or inconsistent with its terms (a). Act -

(a) This appears, in an Act not similar clause was inserted in the
intended for a complete code of the English draft Criminal Code by the
subject, a desirable precaution. A revising Commission.
 INDIAN CIVIL WRONGS BILL.

Liability 8. Every one commits a wrong who harms another

for wilful
harm and (a) by an act intended to cause harm (b) :

unautho-
rized deal- (b) by intermeddling without authority with anything
ing with which belongs to that other (c).
property.

Illustration.
A. watch which B. has lost, and in good faith, and
finds a
intending
the true owner's benefit, attempts to clean it and
put it in order. In
doing so A. spoils the watch. A. has wronged B.

Liability
for harm
9. Every one commits a wrong (d) who harms another
not wil-
(a) by any act forbidden by law or ;
fully done
by breach (b) by omitting to perform, or insufficiently or impro-
or omis-
sion or perly performing, any general duty imposed on
neglect of him by law or;
legal duty,
or by neg-
(c) by want of due care and caution in his acts or
ligence.
conduct.

In the absence of any more specific rule applicable to

the case, due care and caution means such care and caution
as a man of ordinary sense, knowledge and prudence may
be expected to use in the like case, including, in the case
of acts and undertakings requiring special skill, such care
and skill as be expected of a person reasonably com-
may
petent in the matter in hand.
Exception. Where the conduct of a matter requiring
undertaken of necessity [or " under circum-
special skill is
stances of evident necessity"], and to avoid a greater risk,
the person undertaking it is deemed to use due care and
caution if he makes a reasonable use of such skill as he

actually possesses.

(b} This clause is inclusive, not (c) Exceptions are dealt with
exclusive: the specific definitions under Wrongs to Property. (Clause
of, e.g., assault, trespass, and defa- 47 below.)
mation stand on their own ground. (d] For the general principles
By harm I mean what English see Fergusson v. Earl of Kinnoul,
law books commonly call actual 9 Cl. & F. 251 ; Mersey Docks Trus-
damage. tees v. Gibbs, L. B. 1 H. L. 93 ;

Heaven v. fender, 11 Q. B. D. 503.

 GENERAL PART. 523

Illustrations.

1. B., a zamindar, transfers a portion of his zamindari to C., in accord-

ance with the provisions of the regulation in force in the province, by

which regulation registration and sub -assessment are needful to com-
plete the validity of the transfer (e)
.
A., the local collector, refuses to
register and sub-assess the portion so transferred. A. has wronged C.
2. A., not being a builder, erects a scaffolding for the purpose of
repairing his house. It is unskilfully constructed, and by reason thereof
part of it falls upon B., who is passing on the highway, and hurts him.
A. has wronged B., though A. may have put up the scaffolding as well
as he could.
3. A. goes out driving with a horse and carriage. A. is bound to
drive with such skill as, according to common experience, is expected of
a coachman.
4. A. goes out driving, and takes with him a friend, B., who is not
accustomed to driving. A. is disabled by a sunstroke. No skilled help
being at hand, B. takes the reins and drives. In deciding whether under
these circumstances B. acts with due care and caution, regard is to be
had to B.'s want of skill.
5. A., an engineer not skilled in navigation, is a passenger on a small

river steamer. The only competent sailor on board is disabled by an

accident, and A., at the request of other passengers, takes charge of the
steamer. In deciding whether under these circumstances A. acts with
due care and caution, regard is to be had to the actual extent of his
knowledge and skill.
6. A. and B. are out shooting. A tiger attacks them and carries off
B. No other help being at hand, A., who is an indifferent shot, fires at
the tiger and kills it, but also wounds B. A. has not wronged B.,
though a better shot might probably have killed the tiger without
wounding B.

10, A person is deemed to have harmed any one who Liability

for con-
suffers harm by reason of an act or omission of the first-
sequences.
mentioned person (/), provided that the harm is

(a) an ordinary consequence of that act or omission,

whether intended by the person so acting or
omitting or not ;
or

(b) a consequence thereof which that person foresaw, or

(e} Ponnusdmy Tevar v. Collector action, see Act XV. of 1877, s. 24,
of Madura, 3 Mad. H. C. 53. and Barley Main Colliery Co. v.
(/) [As to the relation of the Mitchell, 11 App. Ca. 127.]
period of limitation to the cause of
524 INDIAN CIVIL WRONGS BILL.

with due care and caution might have fore-

seen (g) ;

a wrong-doer is such consequences of his

liable for all

wrongful act or omission as in this section mentioned.

Illustrations.
1. A. unlawfully throws a stone at B., which misses B. and hits and

breaks C.'s water- jar. A. has wronged C.

2. A. lies in wait for B. ,intending to assault and beat him as he goes
home in the evening. Mistaking C. for B. in the dusk, A. assaults C.
A. has wronged C.
3.A. unlawfully diverts a stream for the purpose of depriving B.'s
growing crops of their irrigation. The diversion of the stream harms
C.'s crops as well as B.'s by drought, and the water floods a piece of D.'s
land and spoils the crops growing thereon. A. has wronged both C.
and D.
4. A. and C., who is B.'s servant, quarrel in the street. A. draws a
knife and threatens C. with it. C. runs hastily into B.'s house for pro-

tection, and in so doing strikes and upsets a jar of ghee belonging to B.,
so that the jar is broken and the ghee lost. A. has wronged B. (h).
5. A. whips a horse which B. is riding. The horse runs away with B.,
and knocks down C., who falls against D.'s window and breaks it. A.
has wronged both C. and D. (i).
6. A. leaves his horse and cart unattended in the street of a town.

B. and C. are children playing in the street. B. climbs into the cart as ;

he is doing so C. causes the horse to move on, and B. is thereby thrown

down under the wheel of the cart, which passes over him and injures
him. A. has wronged B. (&).
7. A. leaves a loaded gun in a place where he knows that children are

accustomed to play. B. and C. come with other children to play there ;

B. takes up the gun and points it in sport at C. The gun goes off and
wounds C. A. has wronged C. (I).
8. A. unlawfully causes a stream of water to spout up in a public road.

B. is driving his horse and carriage along the road: the horse takes
fright at the water and swerves to the other side, whereby the horse and

(g) This not a repetition for

is :
(i) Illidge
v. Goodwin, Lynch v.
there may be consequences, not Nurdin, cited in Clark v. Chambers,
ordinary, which a man neverthe- 3 Q. B. D. 331. The Squib case
less foresees, or which, in the par- (Scott v. Shepherd] seems hardly
ticular case, a commonly prudent worth adding to these,
man in his position ought to fore- (k) Lynch v. Nurdin, 1 Q. B. 29.
see. Illustrations 4 and 8 are cases Mangan v. Atterton, L. R. 1 Ex.
of this kind. 239, can hardly be supported against
(h} Vandcnburghv. Truax,
4Denio this.

(N. Y.) 464, with change of local (1} Case put by Denman C. J. in
colouring. Lynch v. Nwdin.
 GENERAL PART. 525

carriage fall into a cutting by the roadside which has been improperly
left open by C., and B. is wounded and the horse and carriage damaged.

A. has wronged B. (m).

9. The
other facts being as in the last illustration, some of the water
runs into the cutting, and wets and damages some clothes belonging to
D., who is at work in an adjoining field and has deposited them there.
A. has not wronged D. ().
10. A. leaves his gate, opening on a highway, insufficiently fastened ;

A. 's horse gets through the gate and kicks B., who is la wf\illy on the
highway. If the horse was not to A.'s knowledge a vicious one, A. has
not wronged B. (0).
11. A. is the owner of a field in which he keeps horses. A. neglects
the repair of the gate of this field, whereby a horse breaks down the gate,
strays into B.'s adjoining field, and kicks and injures a horse of B.'s
which is there kept. A. has wronged B. (p).
12. A. is driving an ox through the street of a town with due care and
caution. The ox goes off the road into B.'s shop and does damage to
B.'s goods. The ox may be liable to be impounded, but B. cannot sue
A. for compensation, for, although the damage is the natural conse-
quence of the ox straying, A. has done no wrong (q).

11. Subject to the provisions of this Act and to the law Survival of

of limitation every right of action under this Act is avail- and*

rights
to re
able against and for the executors, administrators and Pje-
sentatives.

representatives of the wrong-doer and the person wronged

respectively (r).

(m) Hill v. New River Co. 9 B. amendment of Act XV. of 1877

6 S. 303. The distinction be- (Limitation). The maxim " actio
tween this and the next case is personalis moritur cum persona,"
possibly too fine. rests on no intelligible principle,
(n) Cf. Sharp v. Powell, L. R. and even in England is more than
7 C. P. 253. But illustrations 8 half falsified by particular excep-
and. 9 would perhaps be better tions. I submit (after Bentham)
omitted. that there is no place for it in
(6)
Cox v. Burbidge, 13C. B. N. S. a rational and simplified code.
430. I do not overlook the conse-
(p] Lee v. Riley^ 18 C. B. N. S. quence that in some cases persons
722. who would have a right to com-
(q] Tillett v. Ward, 10 Q. B. D. pensation under Act XIII. of 1855
17. But query whether desirable would, under this clause, have
to adopt this for India. An ex- none. But I think that the rights
perienced judicial officer (Punjab) created by Lord Campbell's Act,
" and Act XIII. of 1855, which
regards it as very queer law and
of doubtful equity." As to im- copies it, are anomalous and ob-
pounding, Ben. Act IV. of 1866, jectionable, so far as they produce
s. 71 (and other local Acts). results different from those which
(r) This
is intended to supersede would be more simply produced by
Acts XII. and XIII. of 1855, and, if abolishing the common law maxim,
adopted, will also involve some slight
526 INDIAN CIVIL WRONGS BILL.

Liability 12, For the purposes of this Act, it is immaterial

for wrong
unaffected whether the facts constituting a wrong do or do not
by the amount to an offence
same fact (s).
amount-
ing to an Illustrations.
offence.
1. A., being on work on a building, by carelessness lets fall a block of

stone on B., who is lawfully passing by, and B. is thereby so injured

that he shortly afterwards dies. A. has wronged B., and B.'s executors
can sue A., though A.'s act may be an offence under sect. 304A of the
Penal Code.
A. wrongfully takes B.'s cow out of B.'s field and detains it under
2.

pretence that he bought it at an auction-sale in execution of a decree.

B. can sue A., though A.'s act may be an offence under sect. 378 of the
Penal Code.

Liability 13. Every one is liable for wrongs done by his authority
of agent, or done on his behalf and ratified by him (t)
.

Liability \ (\^ An
employer or master is liable for the wrongs
of servant, of his servant, whether authorized or ratified by him or

notj if and so far as they are committed in the course

of the servant's employment, and for the employer's or
master's purposes (?/).

(s) The old rule, or supposed on the question of employers' lia-

rule, as to the civil remedy being bility. In the event of this opinion
"
merged in the felony," is all but being adopted, I think the whole
exploded in England, and the H. C. clause ought to be omitted. It
of Calcutta, as long ago as 1866, seems impossible formally to adopt
decided against its adoption in English law as it stood before the
India see Illust. 2
;
Shama Churn
;
Act of 1880. "For the master's
Bosc v. Bhola Nath Dutt, 6 W. R. benefit" is a common phrase in
(Civil Ref.) 9. Cf. Viranna v. the authorities but I think "pur-
;

NagayyaU, I. L. R. 3 Mad. 6, fol-

' '

poses a better word, as often the

lowing the H. C. of Calcutta. act or default of the servant does
(t) See Girish Chunder Das v. not and cannot produce any present
Gillandcrs, Arbuthnot $ Co. 2 B. L. benefit to the master, but produces
R. 140, O. C. Rani Shamshoondri
; great and evident loss, e. ff., a rail-
Deba v. Dubhti Mundtil, 2 B. L. R. way collision. It was once sup-
227, A. C. Both these cases seem posed that deceit or wilful trespass
to turn on a question of fact by a servant, not authorized or
whether under all the circumstances ratified by the master, did not make
the defendant had authorized or the master liable. But modern
ratified the act complained of. authorities, such as Harwich v.
(u) Some persons whose opinion English Joint Stock Bank, L. R. 2
isentitled to weight think it would Ex. 259, have exploded this notion.
be better not to make anv new law
 GENERAL PART. 527

(2.) The master of a person engaged on any work is

that person who has legal authority to control the per-
formance of that work, and not himself subject to any
is

similar authority in respect of the same work.

Exception 1 (a?). Where

the person wronged and the

wrong-doer are servants of the same master, and the wrong

is done in the course of one and the same employment on

which they are at the same time engaged as such servants,

the wrong-doer not being in that employment set over the

person wronged, the master is not liable unless he knew

the wrong-doer to be incompetent for that employment, or

employed him without using reasonable care to ascertain

his competence.

Explanation For the purposes of the foregoing

(//).

exception the whole and every part of the ordinary service

of a household is deemed to be one and the same employ-

ment.
Exception 2 (z). A
person who is compelled by lawto
use the services of another person, in the choice of whom
he has no discretion, is not liable for wrong committed by
that other in the course of such service.

Illustrations.

1. A. directs his servant B. to put a heap of rubbish in his garden,

near the boundary, but so as not to interfere with his neighbour C. B.

executes A.'s order, and some of the rubbish falls over into C.'s garden.
A. has wronged C. (a).
2. A. sends out his servant B. with a carriage and horse. B. overtakes

(x) This is a large alteration of the dark, the coachman shall have
English law, and intended so to be. an action against the master, &c.,
The Employers' Liability Act of which would be inconvenient. The
1880 is an awkward and intricate real question is, what risks is it, on
compromise, and evidently will not the whole, reasonable to expect the
serve as a model. The final pro- servant to take as being naturally
viso is only existing law. incidental to his employment ?
(y) This seems needful :other- (z) Compulsory pilotage
is the

wise, as suggested in some of the chief I think the only case to

English authorities, if the stable- which this exception applies,
boy leave a pail about, and the (a) Gregory v. Piper, 9 B. & C.
coachman breaks his shin over it in 591.
528 INDIAN CIVIL WRONGS BILL.

C.'s carriage and horse on the road, and strikes C.'s horse in order to
make C.'s driver draw aside and let him pass. A. has wronged C.
3.A. sends out his servant B. with a carriage and horse. B. meets
C.'s carriage and horse, and strikes C.'s horse in order to bring C.'s
driver, with whom he has a private quarrel, into trouble. A. has not
wronged C.
4. A. sends out his servant B. with a cart on business errands. In the
course of doing A.'s business, B. takes a longer way for a purpose of his
own, and by careless driving runs over C. After finishing his business,
and as he driving home, B. picks up a friend D.
is D. persuades B. to;

drive him in another direction, and by careless driving B. runs over E.

A. is liable to C., but he is not liable to E. (?).
5. N., a passenger by the X. Company's railway, books for Allahabad,
and takes his seat in a train which is, in fact, going thither. A. is a
servant of the company whose duty is (among other things) to see that
passengers do not get into wrong trains or carriages. A. erroneously
supposing N. to have got into a train which is not going to Allahabad,
pulls him out of the carriage as the train is starting, whereby N. falls
on the platform and is injured. The X. Company has wronged N., even
if A.'s instructions were that he must not use force to remove
passengers
from a wrong carriage (#) .

[6. B. is A.'s servant

part of his duty is to light the fire in a certain
;

room B. finds difficulty in lighting the fire from the

in A.'s house.

chimney being foul, and makes a fire of straw under the chimney in
order to clear it. The house takes fire, and damage is done thereby to
the house and goods of a neighbour C. B. only, and not A., has
wronged C., for it was not B.'s business as A.'s servant to cleanse the

chimney] (5).
7. C., a customer of A.'s bank, cashes a draft, and by mistake leaves
some of his money on the counter. He returns and takes it up hurriedly ;

B., one of the bank clerks, thinks he has stolen some of the bank's
money, and pursues and arrests him. A. has not wronged C., inasmuch
as it is no part of a bank clerk's duty to pursue or arrest thieves,

although he might be justified in so doing if theft had really been com-

mitted^).
(z) Storey v. Ashton, L.
R. 4 Q. field$ Lincolnshire It. Co. L. R.
B. 476, and cases there cited. I 8 C. P. 148.
should prefer to say: " A. is not (b) M'Kenzie v. McLeod, 10 Bing.
liable to E., and he is liable to 385. Strictly the question here is
C. only if it appears as a fact that one of fact. But the Court evi-
B.'s deviation was not such that he dently not only acquiesced in but
had ceased to be in the course of approved the finding of the jury,
his employment as A.'s servant A Punjab officer says the illustra-
when he ran over C. " cf. What- ;
tion is too refined, "unsuited to
man v. Pearson, L. R. 3 C. P. 422 :
India, and objectionable on princi-
though this would involve some pie in relation to that country."
innovation. I think the distinc- No harm could be done by omit-
tions in the English cases are too ting it.
fine. (e) Cf. Allen v. L. $ S. W. E.
(0} ftayley v. Manrirtter, Shef- L. R. 6 Q. B. 65, 69. In the case
 GENERAL PART. 529

8. N. is a platelayer in the service of X. railway company. He makes

a journey on the company's service in a train on the company's line. By
the negligence of a pointsman employed by the company, the train goes
off the line, and N. is injured. The X. company is liable toN. (d).
[9. P.an engine-driver in the service of the X. railway company.
is

A train which he is driving in the course of his service goes off the line

by the negligence of Q., a generally competent pointsman also in the

company's service, and P. is injured. The X. company is liable to

P.] (,).

10. A steamship of the A. company, being navigated up the harbour of

Bombay by a compulsory pilot, runs down B.'s bagalo. If the A. com-
pany can show that the collision was due to the unskilfulness of the pilot,
and not of their own master or mariners, A. company has not wronged
B. ().

15. (1) Joint wrong-doers are jointly and severally liable Joint
wrongs.
to the person wronged.

(2) Persons who agree to commit a wrong which is in

factcommitted in pursuance of that agreement are joint
wrong-doers even if the wrongful act is committed by or
under the immediate authority of some or one only of those
persons (/).
"Where judgment has been recovered against some
(3)
or one of joint wrong- doers without the other or others, no
other suit can be brought by the same plaintiff or in his

right for the same cause of action against the other or

others (g).

here supposed a private person engine-driver and the pointsman

would in India be entitled to arrest are as much in one and the same
the thief, if theft were really com- employment as the engine-driver
mitted in his view Cr. P. C. 59.
: and the guard, and that the reason -
(d) Intended to reverse a case of ing of the Massachusetts case is, on
Turner v. S. P. $ D. R. Co. in the the facts of that case, correct. But
H. C., Allahabad, not reported the Employers' Liability Act, 1880,
(Alexander, p. 38) cf. Tunney v.;
s. 1, sub-s.appears to reverse
5,
Midland JR. Co. L. R. 1 C. P. 291. the common law rule in this very
Railway companies will not ap- point. I do not believe it possible
prove of the change, but it would to fix the limits of the exception
leave them better off than they are ' satisfactorily, and I would submit
on the Continent of Europe. whether it is worth keeping at all,
(e] Contra,
Farwell v. Boston $ except as regards domestic servants.
(ee) Muhammad Yusufv.
TPorcester Railroad Corporation, 4 P. $ 0.
Met. 49, Bigelow L. C. 688. On Co. 6 Bombay H. C. 98, Alex-
principle, I think that, if there is ander, p. 37.
k> be any exception at all in the (/) See Ganesh Singh v. Ram
master's favour, it should go as far Raja, 3 B. L. R. 441, P. C.
as this. It seems to me that the (g) It may be worth considering
P. MM
530 INDIAN CIVIL WRONGS BILL.

(4) Any one of joint wrong-doers is not entitled to con-

tribution or indemnity from any other of them in respect
of compensation for a wrongful act which he did not at the
time of doing it believe in good faith to be lawfully autho-

rized (g) .

CHAPTER II.

GENERAL EXCEPTIONS.

Protection 16 (h). Nothing a wrong which is done by or by the

is
51 '

officers warrant or order of a judge or other judicial officer or

executing
person acting judicially Provided, as regards the exemp-
:

judicial
orders. tion from liability of any such judge, officer, or person

acting judicially, that he at the time was acting in the

discharge of his judicial duty, and, if he had not jurisdic-
tion to do or order the act complained of, in good faith
believed himself to have such jurisdiction : Provided also,
as regards the exemption from liability of
any person
a
executing judicial order, that the warrant or order is such

as he would be bound to execute if within the jurisdiction

of the person issuing the same.

Explanations. The motives with which a judge or judi-

cial officer acts within his jurisdiction are immaterial (>').

whether the rule that judgment man's goods, which is not an exe-

against some or one of joint wrong- cution of the order. In criminal

doers is a bar to any suit against law the exception is wider, P. C.
the others ought to be preserved 79. For the English law and au-
in British India. It is generally thorities, see Scott v. Stansfield,
not followed in the United States. L. R. 3 Ex. 220. The question of
(Cooley on Torts, 138.) limitation of suits for judicial acts
4 Bing. 66; is left to stand over. Provision in
(g} Adamsonv.Jarvis,
Betts v. Gibbins, 2 A. & E. 57. that behalf should perhaps come
(h) Act
XVIII. of 1850, with under the title of Remedies.
some condensation. As to criminal (i) Pralhdd Mdhdrudra v. A. C
prosecution, Cr. P. C. 197. This, Watt, 10 B. H. C. 346 Meghraj v.
;

of course, does not apply to such a Zakir Hussain, I. L. R. 1 All. 280.

case as that of taking- the wrong
 GENERAL PART. 531

Illustrations.
1. not being a domestic servant, is charged before A., a magis-.
Z.,
1

trate, under a local regulation with "misbehaviour as a domestic

servant," and sentenced by him to imprisonment without proper investi-
gation of the facts which show that Z. is not a domestic servant. A.
has wronged Z., for though he may have believed himself to have juris-
diction, he could not under the circumstances so believe in good faith
within the meaning of this section (k).
2. B. is accused of having stolen certain goods. A., a deputy magis-
trate, causes B.'s wife (against whom no evidence is offered) to be
arrestedand imprisoned for twenty -four hours, for the purpose, as it is
suggested, of compelling B. to appear. A. has wronged B.'s wife, for
he could not in good faith believe himself to have jurisdiction to arrest
her(Z).
3. officer, purporting to act under the provisions of
A., a customs
Act VI. of 1863, imposes a fine on B., who to A.'s knowledge is a

foreigner residing out of British India, on the alleged ground that B. is

interested in goods unlawfully imported in a vessel, of which B. is in
fact owner. In B.'s absence A. seizes and sells goods of B.'s for the
alleged purpose of satisfying the fine. A. does not, before these pro-
ceedings, take legal advice or give B. an opportunity of being heard.
A. has wronged B., for under these circumstances, though he may have
believed himself to have jurisdiction, he could not so believe in good
faith within the meaning of this section (m).

A., a magistrate, makes an order for the removal of certain pro-

4.

perty of B.'s, acting on a mistaken construction of a local regulation.

If the act is judicial,and the mistake such as a magistrate of ordinary
qualifications might, in the opinion of the Court, entertain after fair

inquiry and consideration, A. has not wronged B. (n).

5. A local Act gives power to magistrates (among other things) to

remove obstructions or encroachments in highways. A., a magistrate,

makes an order purporting to be under this Act for the removal of certain
steps in front of Z.'s house. If this order is in excess of the power given
by the Act, A. has wronged Z., inasmuch as the 'proceeding is not a
judicial one (0).

(k) Vithold Malhdri v. Corfield, Ragundda, Rau v. Nathamuni Tha-

3 B. H. C.
Appendix. thamdyyangdr, 6 M. H. C. 423, it
Vindyab Disakar v. JBat Itchd, is assumed that the making of an
(/)
3 B. H. C. Appendix 36. order of the same kind under the
(m) Collector of Sea,. Customs v. similar general provisions of the
Punniar Chithambaram, I. L. R. 1 Cr. P. C. 308, is a judicial act with-
Mad. 89. in the meaning of Act XVIII. of
(n) Ragundda Rau v. Nathamuni, 1850. I cannot reconcile these
6 M. H. C. 423. authorities, and submit for con-
(0) Chunder Narain Singh v. Brijo
sideration which view is to be pre-
Bullub Gooyee (A. C.), 14 B. L. R. ferred. The Bengal case is the
254. But in Seshaiyangar v. R. later (1874), and the Madras cases
Ragunatha Row, 5 M. H. C. 345, were cited in it.
and the very similar case of R.
MM 2
532 INDIAN CIVIL WRONGS BILL.

Protection 17. Where an act is done in a due or reasonable

of execu-
tive officers manner
and per-
sons exe- (a) by a public officer in obedience to an order given
cuting by a person whom he is generally bound to obey,
legal
duties. that order being such as he is bound to obey, or
such as he in good faith believes himself bound
to obey ;

(b) by a person acting in execution of a duty or

exercise of a discretion which he is by law bound
to perform or exercise, or as in execution of a
duty or exercise of a discretion which he in good
faith believes himself to be bound by law to

perform or exercise ;

that act does not render the officer or other person so doing
it liable as for a
wrong.
Illustrations.
A., a judge's peadah, is ordered by the judge to seize B.'s goods in
1.

execution of a decree, and does so. Though the proceedings may have
been irregular, or the specific goods which A. is ordered to seize may not
be the goods of the person against whom execution was adjudged, A. has
not wronged B.
2. A., a policeman, is ordered by his superior officer to arrest B., and
in good faith believes the order to be lawful. Whether the order is
lawful or not, A. does no wrong to B. by using towards B. such force as
is reasonably necessary to effect the arrest. But A. does wrong to B. if
he strikes him otherwise than in self-defence, or in any other manner
uses excessive force towards him.

Protection 18. Nothing is a wrong which is done regularly and in

of quasi-
judicial good faith by any person in the exercise of a discretion
asts.
of a judicial nature to which the party complaining is

lawfully subject by custom or agreement (p).

Illustrations.
1. The articles of association of a joint stock company provide that
" an
extraordinary general meeting specially called for the purpose may

( p)
The words " regularly and in a club, and the like, call observing
are meant to cover
' '
good faith the rules of natural justice Inder-
:

what the English, authorities on wick v. Snell, 2 Mac. & G. 216.

deprivation of office, expulsion from
 GENERAL PART. 533

remove from his office any director for negligence, misconduct in

office,
orany other reasonable cause." A., being a director of a company, is
charged with misconduct in his office, and an extraordinary special meet-
ing is duly called to consider these charges. A. is summoned to this
meeting, but does not attend. The meeting resolves to remove A. from
his office. No wrong is done to A., even if, in the opinion of the Court,
the charges against him were not well founded.
2. The rules of a club provide that if in the
opinion of the committee
the conduct of a member is injurious to the character and interest of the
club, the committee may recommend that member to resign, and that if
the committee unanimously deem the offence of so grave a character
as in the interests of the club to warrant the member's expulsion,

they may suspend him from the use of the club. The committee must
not suspend a member under without giving him fair and
this rule
sufficient notice of the charges against him, and an opportunity of meet-
ing them (q) .

But
if, and opportunity, and making reason-
after giving such notice
able inquiry, the committee, acting in good faith, are of opinion that the
conduct of a member is so injurious to the character and interests of the
club as to warrant his expulsion, and suspend him accordingly, they do
not wrong that member (r) .

3. [Stated for consideration.']

A. and B. are members of the same Hindu caste. A. is president of
the annual caste feast, to which B. is entitled, according to the usage
of the caste, to be invited. A. wilfully, and without reasonable belief
in the existence of any cause for which B. ought to be excluded, and
without taking any of the steps which, according to usage, ought to be
taken before excluding a member of the caste from: the feast, causes B.
not to be invited, whereby B. suffers in character and reputation. A.
has wronged B. (s).

19 (t).
a wrong which is done by or by order Protection
Nothing is

of a person having lawful authority, and in exercise thereof, lawful

authority.
Fisher v. Keane, 11 Ch.D.353.
(q) and similar wrongs.
(r) Labouchcre
v. Wharncliffe, 13 (t) This is intended to cover the
Ch. D. at p. 352 Dawkins v.;
cases of masters of vessels, parents,
Antrobus, 17 Ch. Div. 615. guardians, and persons in loco pa-
() Dhurmchund v. Nanabhace rentis. The provisions of 21 Geo.
Goobalchund, 1 Borr. \\,scdqu. See 3, c. 70, ss. 2, 3, will, I presume,
Bhugwan Meetha v. Kasheeram Go- be unaffected by this. Illustra-
vurdhun, 2 Borr. 323. The better tions of the authority of a parent or
opinion seems to be that suits for schoolmaster are purposely omitted,
loss of caste are not to be allowed. Custom and feeling in these things
This illustration should then be vary from time to time, and from
omitted and the proper place for
; place to place. It may not be prac-
the rule that a suit for loss of ticable to judge European, Hindu,
caste as such does not lie would and Muhammadan parents or mas-
seem to be the title of defamation ters by precisely the same standard.
 634 INDIAN CIVIL WRONGS BILL.

to any onethe time being under that authority,

for

provided that the authority is exercised in good faith,

without using excessive force, and in a regular, or in
default of applicable rule or custom, an usual and reason-
able manner.
Illustrations.
A., the master of a ship, believing and having reasonable cause to
1
1.

believe that B., one of the crew, is about to head a mutiny against him,
causes B. to be seized and put in confinement. A. has not wronged B.,
but, after having provided for the immediate discipline and safety of the
ship, A. must not further punish B. without holding an inquiry and
giving B. an opportunity of being heard in his own defence.
2. A person having the lawful custody of a lunatic does no wrong to

the lunatic by using for his treatment such usual and reasonable restraint
as is approved by the judgment and practice of competent persons (u}.

Protection
* acts
20. Nothing is a wrong which is duly done by a person
. .

doneunder acting in execution of an authority conferred upon him by

authority -,

conferred law :

by law. Provided that where the authority is conferred for the

benefit of the person exercising it, he must comply with all
conditions prescribed by law for such exercise, and must
avoid doing any unnecessary harm in such exercise.

Illustrations.
1. is authorized to make and work a railway
The X. railway company
near Z.'s house. Z. is put to inconvenience, and the structure of
passing
his house injured, by the noise and vibration necessarily produced by the
trains. The company has not wronged Z. (v).
2. The X. railway company in execution of its authorized works makes
a cutting which affects the support of A.'s house and puts it in danger of

falling. The company has wronged A. (x).

[3. The X. railway company is authorized to make and maintain on all

or any part of certain lands a railway with incidental works, workshops,

and other buildings. The company builds workshops within the autho-
rized limits for the purpose of making plant and appliances for the use of
the railway. A. is a householder, near the site of the workshops, and
the smoke from the workshops is such as to create a nuisance to A. in the
use and occupation of his house. The company has wronged A.] (y).

(u) Maude & Pollock, Merchant 636.

Shipping, I. 127, 4th ed. Rajmohun Bose v. E. I. B. Co.
(/)
(v) Cases
in H. L. on compensa- 10 B. L. R. 241. [Sed qu. see
tion, passim. London $ Brighton R: Co. v. Tr-ii-
(x) Biscoe v. G. E. R. Co. 16 Eq. ,
U
App. Ca. 45.]
 GENERAL TART. 535

21. A person
not wronged who suffers harm through
is Accidental

the doing of a lawful act, in a lawful manner, by lawful

means, and with due care and caution. negli-

gence.
Illustrations.
1. A. is lawfully shooting at a rifle range. His shot strikes the target,
and a splash of lead from it strikes B., a passer-by, outside the limits
which have been marked as the limits of danger by competent persons.
A. has not wronged B.
2. A. is lawfully shooting at a rifle range. His shot falls short,
ricochets over the butts, and strikes B., a passer-by, outside the limits of

danger marked as aforesaid. It is a question of fact whether, having

regard to all the relevant circumstances, A. has or has not used due care
and caution (2) If he has not done so, he has wronged B.
.

3. B. assaults A. with a knife A. has a stick with whiph he defends

;

himself. C., a policeman, comes up to A.'s assistance. A., in warding

off a blow aimed at him by B., strikes C. with the stick. A. has not
wronged C., unless by ordinary care he could have guarded himself
without striking C. (a).

22. A person is not wronged who suffers harm or loss Harm in-
. i
i i n -, , . cident to
in consequence 01 any act done tor a lawful purpose and in exercise
'
of otlier8
a lawful manner in the exercise of ordinary
* rights (b] .
v ' common
Tjj , ,. rights.
Illustrations.

1. B. is a schoolmaster. A. sets up a new school in the same village

which attracts scholars from B.'s school and so diminishes B.'s profits.
A. has not wronged B. (c).
2. The facts being otherwise as in the last illustration, A. procures C.

to waylay the children going to B.'s school and intimidate them so that

they ceaee to go there. Both A. and C. have wronged B., for A. may
not attract scholars from B.'s school to his own by unlawful means.
3. A. is driving at an ordinary pace along a road. B. is a foot-

(z) E. g.,
it would be manifest very little, being an accident which
want of due care if on moving from may happen even to a good marks-
a shorter range A. had omitted to man.
put up his sight, and the unex- (a) Cf. Brown v. Kendall (Su-
a ricochet
plained fact of making preme Court, Massachusetts), 6
at a short distance, such as 200 Gush. 292.
held to show
' r
is a rather
yards, might well be (b} "Ordinary right
want of duecare, though it
might vague phrase, but I cannot find a
be explained as the result of some- better one. The use of larger words
thing beyond the shooter's con- like "legal rights" or "any right"
trol, such as, for example,
a defec- would make this overlap Clause 20,
tive cartridge while, on the other
;
and perhaps raise difficulties.
hand, it would, at a long range, (c) Y. B. 11 H. IV. 47, pi. 21.
such as 1,000 yards, of itself go for
536 INDIAN CIVIL WRONGS BILL.

passenger walking by the side of the road. A splash of mud from the
wheel of A.'s carriage goes into B.'s eye and injures it. A. has not
wronged B. (d).
4. A. and B. are adjacent landowners. A. digs a deep well on his land
to obtain water supply for agricultural purposes. This digging intercepts
underground waters which have hitherto supplied wells on B.'s land by
percolation, and B.'s wells are dried up. A. has not wronged B. (e).
[5. The facts mentioned in the last illustration having happened, B.
supplies himself with water otherwise, but afterwards, not in order to
obtain water, but in order to be revenged on A., B. digs a still deeper
well on his own land, and thereby intentionally cuts off the supply of
water to A.'s well. Here B. has wronged A., for he has used his own
land not for any lawful purpose, but only for the unlawful purpose of
doing wilful harm to A. (/).]
6. A. is the superintendent of marine at Calcutta. B. is the owner of
a tug. The captain of B.'s tug having refused to tow a Queen's ship
except on terms which A., in good faith, thinks exorbitant, A. issues an
order prohibiting officers of the pilot service from allowing B.'s tug to
take in tow any ship of which they have charge, and B. thereby loses
employment and profits. A. has not wronged B., for the order is an
exercise of his lawful discretion as to the manner in which a public duty
is to be performed by persons under his direction (^).

Harm 23. A person is not wronged who suffers accidental

voluntary
harm or loss through a risk naturally incident to the doing,
1

to risk ky any other person, of a thing to the doing of which the

first-mentioned person has consented, or at the doing of
which he is voluntarily present.

Illustrations.

1 . A. looks on at a fencing match between B. and C. In the course

of play B.'s foil breaks, and the broken end flies off and strikes A. No
wrong is done to A.

See L. R. 10 Ex. 267.

(d) it ought to be, but was not
(7 H.
(e)
had written "for a neigh-
I L. C. at p. 388) but I know of
;

bouring village," after Chasemore no distinct authority that it is not

v. Richards, but I am told by an so ;
the Roman law was so, and
Indian judicial officer (Punjab) that the law of Scotland is stated to be
for Indian purposes it would not so (Bell's Principles, referred to by
do to go so far, and that practice is Lord Wensleydale) and I submit
;

in fact otherwise. Another (also that on principle it ought to be so

Punjab) would omit both this and denned. The question of policy
Illust. 5. must, of course, be carefully con-
(/) This is commonly supposed sidered.
not to be the law of England. Lord (g) Rogers v. Rajendro Dutt, 8
"Wensleydale in Chasemore v. Rich- Moo. I. A. 103.
ards appears to have thought that
 GENERAL PART. 537

2. A. goes into a wood to cut down a tree, and B. goes with him for
his own pleasure. "While A. is cutting a tree the head of his axe flies
off and strikes B. A. has not wronged B., unless the axe was, to A.'s
knowledge, unsafe for use.
3. B. and C. are letting off fireworks in a frequented place. A. stops
near them to look at the fireworks. A
firework explodes prematurely
while B. is handling it, and the explosion injures both C. and A. B.
has not wronged either C. or A., though B. and C. may be punishable
under section 286 of the Indian Penal Code.

24. (1) A person is not wronged who suffers harm or Acts done
loss in consequence of any act done in good faith and with sen t.

his free consent or that of a person thereto authorized by

him:
Provided that the act must be done either in the manner
towhich he has consented, or with due care and caution
and in a reasonable manner from which he has not
dissented.
In the case of a person under twelve years of age
(2)
or of unsound mind, the consent of the guardian or other

person having lawful charge of him is necessary for the

purposes of this section, and is also sufficient :

Provided that
(a) the act must be done for the benefit of the person
under twelve years of age or of unsound mind ;

(b) it must not be intended to cause death ;

(c) unless it is intended to prevent death or grievous

hurt or to cure any grievous disease or infirmity,
it must not be intended to cause
grievous hurt,
nor be known to the person doing it to be likely
to cause death.

Nothing is by this section exempted from

Explanation.
being a wrong which is an offence under any section of the
Indian Penal Code (h) .

(A) Cf. P. C. ss. 87, 88, 89. For points are not expressly dealt with,
the purposes of civil law it seems awkward questions might arise
desirable to consolidate and sim- whether the exceptions were the
plify these rather minute provi- same as in the Penal Code or not.
sions on the other hand, if the
;
538 INDIAN CIVIL WRONGS BILL.

Illustrations.
1 A. and B. are playing a game in which a ball is struck to and fro
.
;

the ball, being struck by A. in the usual manner ha the course of the
game, strikes and hurts B. A. has not wronged B.
2. A. and B. practise sword-play together with sticks, and
repeatedly
strike one another. No wrong is done if the blows are fairly given in the
usual course of play.
3. A. performs a surgical operation on B. with B.'s consent. What-
ever the result of the operation, A. has not wronged B. if he has acted in
good faith with the ordinary skill and judgment of a competent surgeon.
4. A. has a valuable horse which has gone lame, and requests B., a

farrier, to try on it a particular mode of treatment which has been recom-

mended to A. B. does so in good faith, following A.'s directions. The
treatment is unsuccessful and the horse becomes useless. B. has not
wronged A.
5. A. and B. fight with sharp swords for the
purpose of trying their
skill, and wound one another. Here A. has wronged B., and B. has
wronged A., for their acts are offences under section 324 of the Indian
Penal Code, and are not within the exception in section 87.
6. A. requests B., a farrier, to perform an operation on his horse. B.
knows that A. has mistaken the character of the horse's injury, and that
the operation is unnecessary, but conceals this from A. that he
may gain
more from the subsequent treatment, and performs the operation
fees

according to A.'s request. Even if he performs it skilfully, B., not

having acted in good faith, has wronged A.

Act done 25. A person is not wronged who suffers harm or loss in
on emer-
gency for consequence of an act done for his benefit in good faith
a person's
benefit
and without his consent, if the circumstances are such that
without
impossible to obtain his consent, or the consent of the
it is
consent.
guardian or other person in lawful charge of him, if any,
in time for the thing to be done with benefit (i).

Illustrations.
1. A.'s country house is on fire. A. is away on a journey, and no
person authorized to act for him is on the spot. B., C., and D., acting in
good faith for the purpose of saving A.'s house, throw water on the fire
which puts out the fire, but also damages A.'s furniture and goods. B.,
C., and D. have not wronged A.
2. Z. is thrown from his horse, and is insensible. A., a surgeon,
finds that Z. requires to be trepanned. A. not intending Z.'s death, but
in good faith for Z.'s benefit, performs the trepan with competent skill

(i)
Cf. P. C. 92. Illustrations 2 to 5 correspond with those of the
Penal Code.
 GENERAL PART. 539

before Z. recovers his power of judging for himself. A. has not wronged
Z.
3. Z. is carried off by a tiger. A. fires at the tiger, knowing it to be
likely that the shot may kill Z., but not intending to kill Z., and in good
faith intending Z.'s benefit. A.'s ball gives Z. a mortal wound. A. has
not wronged Z.
4. A., a surgeon, sees a child suffer an accident which is likely to prove
fatal unless an operation be immediately performed. There is not time
to apply to the child's guardian. A. performs the operation in spite of
the entreaties of the child, intending in good faith to act for the child's
benefit. A. has not wronged the child if the operation is proper in itself,
and performed with competent skill.
5. A. is in a house which is on fire with Z., a child. People below
hold out a blanket. A. drops the child from the housetop knowing it to
be likely that the fall may hurt the child, but not intending to hurt the
child, and intending, in good faith, the child's benefit. A. has not
wronged Z.

26 Except in the case of acts which if continued or

(j).
Acts caus-

repeated would tend to establish an adverse claim of right, harm.

nothing is a wrong of which under all the circumstances a

person of ordinary sense and temper would not complain ;

but acts which separately would not be wrongs may amount

to a wrong by a repetition or combination.

Illustrations.

1. A. is driving along a dusty road, and the wheels of his carriage

throw a little dust on the clothes of B., a foot-passenger, which does

them no harm. Even if A. was driving at an incautiously fast pace, A.
has not wronged B.
2. A. walks across B.'s field without B.'s leave, doing no damage. A.
has wronged B., because the act, if repeated, would tend to establish a
claim to a right of way over B.'s land (k).
3. A. casts and draws a net in water where B. has the exclusive right

of fishing. Whether any fish are caught or not, A. has wronged B.,
because the act, if repeated, would tend to establish a claim of right to
fish in that water (I}.

(J) Cf. P. C. 95.As regards unless it has become familiar in

not at present
civil liability, this is India, qti. whether it be desirable
the law of England, but it is the to give prominence to it.
practice and understanding of Eng- (I) Holford v. Bailey, Ex. Ch.
lish people. 13 Q. B. 426, 444, 18 L. J. Q. B.
(k) Undoubted English law: but 109, 112.
540 INDIAN CIVIL WRONGS BILL.

Private 27. A person who duly exercises the right of private

defence, as defined by the Indian Penal Code, does no

wrong to the person against whom he exercises it.

Would it be proper to add exceptions answering to P. C. 81

and 94, or either of those enactments ? On the whole I think not. Even
in criminal law the limits of the excuse furnished by
"
compulsive
necessity" are difficult to fix. form of the Penal Code the
In the first

problem was abandoned Note B to the Commissioners'

as hopeless (see
draft as reported to the Governor- General in Council) and in the ;

existing Code there is still some vagueness the illustrations

;
to s. 81 are

only of acts done for the benefit of others, though the text of the section
would cover acts done to avoid harm to the agent's own person or
property. The dicta in Scott v. Shepherd certainly do tend to show that
"compulsive necessity" (per De Grey C. J.) may furnish an excuse
from civil liability but I cannot help thinking that if in that case Willis
;

or Byal had been worth suing, and had been sued, it would have been
held that they as well as Shepherd were trespassers. I am not aware of
any authority for excluding civil liability in the cases provided for by
P. C. 94, and I do not think it would be desirable to exclude it.
A possible but rare class of exceptional cases is purposely left un-
touched. It is settled that infancy, lunacy, and voluntary drunkenness
are not in themselves grounds of exemption from liability for civil wrong.
But it may well be thought that in cases where the existence of a
particular intent or state of mind is material (as malicious prosecution,
and in some parts of the law of libel), lunacy, &c., must, if present, be
taken into account as facts relevant to the question whether that intent
or state of mind did exist. And what of a person who is, without his
own fault, in a state in which his movements are not voluntary a sleep-
walker, or a man in a fit ? My guest walks in his sleep and breaks a
window in my house ;
is he liable to me for the cost of mending it ? A
man standing at the boundary of his own land is seized with paralysis
and falls on his neighbour's land is he a trespasser ?
; Shall we say that
the man does not really act at all, and therefore is not liable ? Or that
he is bound at
his peril either to be capable of controlling his own limbs,
or to provide against his incapacity being a cause of harm to others ?
Either way of dealing with the question has plausible reasons in its
favour. The prevailing bent of English legal minds would, I think, be
against giving exemption. On the whole, these points appear so obscure
and so unlikely to arise in practice that they are best passed over. I am
not aware of any record in our books of a real case of this kind having
occurred for decision.
 SPECIAL PART. 511

SPECIAL PART.

CHAPTER III.

ASSAULT AND FALSE IMPRISONMENT.

28, Whoever uses criminal force to any person or Assault.

commits an assault upon any person, within the meaning
of the Indian Penal Code, sections 350 and 351, wrongs
that person.
Illustrations.
1. A. and Z. are passing one another in a narrow way A. uninten- ;

tionally pushes against Z. A. has not assaulted Z., though, if actual

harm is caused, he may be liable to Z. for negligence (m).
2. A. and Z. are in a narrow way ;
A. intentionally thrusts Z. aside,
and forces his way past him. A. has assaulted Z.
3. A. and B. have occasion to speak to Z. A. gently lays his hand on
Z.'s arm to call his attention. B. seizes Z. and forcibly turns him round.
A. has not, but B. has, assaulted Z. (ri).
4. A. presents a gun at Z. in a threatening manner. Whether the
gun is loaded or not, A. has assaulted Z., if in fact Z. is by A.'s action
put in reasonable apprehension that A. is about to use unlawful force to
him (o).

29. Whoever wrongfully restrains, or

wrongfully con- False

fines, any person within the meaning of the Indian Penal nTent.

Code, sections 339 and 340, wrongs that person.

Illustrations.
1. A. causes Z. to go within a walled space, and locks Z. in. There
is another door not secured, by which Z., if he found it, could escape ;

but that door is so disposed as to escape ordinary observation. A. has

wronged Z. (p).
2.A. is a superintendent of police. Z. is accused of an offence for
which he is not arrestable without warrant. A., without warrant, directs

(m) See per Holt C. J., Cole v. (o) Parke B. in R. v. St. George,
Turner, 6 Mod. 149. 9 C. &
P. 493.
(n) Coward v. Haddeley,
4 H. & (p) Messrs. Morgan and Mac-
N. 478. pherson's note on P. C. 340.
542 INDIAN CIVIL WRONGS BILL.

Z. to go to a certain place and present himself before a magistrate, and

directs two constables to accompany Z. in order to prevent him from

speaking to any one. Z. goes with the two constables, as directed by A.

Here Z. has been wrongfully confined, and A. has wronged Z. (q).

Exem- 30. In assessing damages for an assault, or wrongful

damages, restraint or confinement, the Court may have regard to the

probable effect of the assault on the plaintiff's feelings,

standing or reputation, by reason of the insulting character,
publicity, or other circumstances of the act.

Illustration.
A. causes Z. to be beaten with a shoe. Z. may be entitled to sub-
damages, though he has not suffered appreciable bodily hurt or
stantial

pecuniary loss (r)

.

Note. seem desirable to depart from the

It does not
definition of assault given in the Penal Code, though that

definition is needlessly elaborate. The illustrations there

given likewise appear to cover all the ordinary cases. A

few negative illustrations are added they do not come ;

under the general exception of slight harm, section 26

above, but are not within the definition at all.

Self-defence has been provided for under the head of

Greneral Exceptions (clause 27 above), and does not seem
to need further mention here.
In the case of false imprisonment, as of assault, the in-

convenience of having different definitions for civil and

criminal purposes appears to outweigh any criticism to
which the terms of the Penal Code may be open.
It appears to have been decided in the North-West
" male
Provinces that relatives cannot sue for damages for

(q) Parankusam Narasaya Pantula atheists by the disciples of Sankara

v. Stuart (1865) 2 Mad. H. C. 396. Acharya but it does not appear
;

See Mr. J. D. Mayne's note to P. C. in this case to what extent (if at all)
340. such beating may convey a sym-
Bhyran Pershad v. Isharee
(r)
bolical imputation of irreligion,
(1871) 3 H. C. N. W. P. 313. breach of caste, or the like, in
Beating with slippers was the modern times. The law and prac-
argument administered to certain tice are well settled in England.
 SPECIAL PART. 543

an assault committed by the defendant on their female

relatives" (Alexander, Indian Case-law on Torts, p. 159).
It is certain that no such action lies in English law, except
on the ground of per quod servitium amisit. Whether it

ought or ought not to lie in British India, having regard

to native usage and feelings, is a question of special policy
outside the draftsman's functions.
Next would come in logical order the causes of action
for trespass to servants, &c., per quod servitium amisit, with
their peculiar development in modern times in the action
for seducing the plaintiff's daughter, or person in a similar

relation. I do not find that such actions are in use in

British India. In English law they are now regarded as
anomalous in principle and capricious in operation. As to
trespass by intimidation of a man's servants, &c. (a rather

prominent head in the old books of the common law), I

apprehend that such matters may be left to the Penal Code.

CHAPTER IY.
DEFAMATION.

Preliminary Note. In dealing with assault and false

imprisonment, the definitions of the Penal Code have been
followed. With regard to defamation, it is much more
difficult to determine the course to be taken. The common
law presents
(1) minute distinctions between spoken and written
words or, more exactly, between communications
by means leaving no visible trace and communica-
tions by writing or other permanent visible sym-

bols, as affording a cause of action, spoken words

"
being actionable per se" only when they convey
certain kinds of imputation ;
544 INDIAN CIVIL WKONGS BILL.

(2) an artificial theory of malice, now reduced in effect

to the doctrine that, exceptions excepted, a man
acts at his peril in making defamatory communi-
cations ;

(3) an elaborate system of exceptions, reducible, how-

ever, to sufficiently intelligible grounds of public
policy and social expediency ;

(4) peculiar and somewhat anomalous rules as to the

respective office of the Court and the jury in
dealing with those exceptional cases which come
under the title of " privileged communications."

As to (1), the Penal Code makes no distinction between

slander and libel (s). In this I think it
ought to be fol-
lowed. The common law rules defining what words are and
" actionable
are not per se" seem to have been already disre-
garded in practice in suits between natives in British India.
As to (2), the Penal Code does not make wrongful in-

tention, but does make knowing or having reason to believe

that the imputation uttered will harm the reputation of
the person it concerns, an essential part of the offence. It
seems doubtful whether for the purpose of civil liability
this caution is necessary. The test of words being defama-
tory or not according to English authority, an "external"
is,

one ;
the question is what their natural effect would be,
not whether the utter er knew
might have known it see
or ;

per Lord Blackburn in Capital and Counties Bank v. Henty,

7 App. Ca., at pp. 771-72. Practically it can seldom make
any which form the question is put, but the
difference in

language of the Penal Code, if applied to civil liability,

would be open to misconstruction. On the other hand,
the Explanations of the Penal Code, section 499, seem

dangerously wide.

(*)
See Parvals v. Mannar ,
I. L. R. 8 Mad. 175.
 SPECIAL PART. 545

(3) As to exceptions, in the Penal Code (following

English criminal law) truth a justification only if the
is

publication is for the public good. Such is not the

English rule as to civil liability the truth of the imputa-
;

tion, on whatever occasion and for whatever purpose made,

is an absolute defence. And this appears to be accepted
in civil suits in British India. The other exceptions are
not free from over-definition, and, if they were adopted for
civil purposes, troublesome questions might arise as to their

effect on the existing law.

There are obvious inconveniences in having the criminal

offence and the civil wrong of defamation differently
defined. But these seem less than the inconvenience of

following the Penal Code and it seems best, on the whole,

;

to take an independent line, with an express warning that

the civil and criminal rules are to be kept distinct. If the
Code were now adopted for civil purposes,
text of the Penal
British India would either lose the benefit of modern

English jurisprudence, or (what seems more likely) the

text of the Code would be strained to make it fit the

English decisions.
(4) The peculiar difficulty of distinguishing questions of
factfrom questions of law depends on the relation of the
judge to the jury in a trial by jury, and therefore does not
arise in British India.

In the event of the Government of India being of opinion

that the Penal Code ought to be substantially followed,

these alternative clauses are submitted :

A. Every one who defames any person within the

meaning of the Indian Penal Code, s. 499, commits a
wrong for which he is liable to that person.

Exceptions.
B. It is not defamation to publish in good faith any fair
p. N N
546. INDIAN CIVIL WRONGS BILL.

comment on matter of public interest or open to public

criticism, or a correct and fair report of a public judicial or

legislative proceeding ;
or to communicate in good faith to
any person in a manner not in excess of the occasion any
information or opinion which it is proper to communicate
in the interest of that person, or of the person making the
communication, or of the public.
This section does not affect the construction or applica-
tion of the exceptions to s. 499 of the Indian Penal Code.
C. Saving of criminal jurisdiction as in clause 31 of the

present draft.

Saying 31. Nothing in this Act shall affect the construction or

and ex-
clusion of operation of Chapter XXI. of the Indian Penal Code and ;

Penal Code
as to de- nothing in Chapter XXI. of the Indian Penal Code shall
famation. affect the construction or operation of this chapter of this

Act.

Saving of Nothing in this Act shall justify or excuse in a court of

criminal
criminal jurisdiction the publication of any matter the
jurisdic-
tion on
other publication whereof is otherwise punishable.
grounds.
Defama- 32. (1) Every one commits a wrong who defames
tion
denned. another without lawful justification or excuse.

(2) A
person is said to defame another if he makes to
any third person a defamatory statement concerning that
other (u) .

(3) A statement is said to be defamatory which conveys

concerning a person any imputation tending to bring him
into hatred, contempt or ridicule, or, being made concerning
him in the way of his office, profession or calling, tends to

injure him in respect thereof.

(4) A statement may be made by spoken or written

words, or by signs, or by pictorial or other representations

() 7 App. Ca. 771.

 SPECIAL PART. 547

or symbols, and either directly or by insinuation or

irony (x).

(5) A person is deemed to make to another person any

statement which, knowing or having reasonable means of

knowing its effect, he communicates or- causes to be com-

municated to that person (?/).

(6) A statement is deemed to concern any person thereby

designated with reasonable certainty, including any member
of a definite body of persons thereby collectively designated

whose individual members can be identified (z).

Illustrations.

1. A. writes and sends a letter to B., in which he accuses B. of a

criminal offence. B. opens and reads the letter. A. has not defamed
B., though the letter may cause pain and annoyance to B. (a).
2. A., having a dispute with B., makes an effigy of B., sets it up on a

bamboo in a public place, calls it by B.'s name and beats it with shoes.
A. has defamed B., and the Court may award substantial damages to B.
if he sues A. ().

3. X. has lost some goods Z. says, "of course A. did not steal the
;

goods, for we all know A.'s honesty." Such words, if in fact spoken in
a manner calculated to suggest that A. did steal the goods, may be a
defamation of A.
4. A. dictates to B. at Delhi a letter in Persian addressed to C. at

Bombay. B., having written the letter, seals it and sends 1). with it to
the post office. The letter is delivered at C.'s house in Bombay. C. is

away, but has authorized P. to open and read his letters. P. opens the
letter, and, not knowing Persian, takes it to Q., a Persian scholar, to be
translated. Q. having read the letter, explains the purport of it in
English in the presence of X., an Englishman. P. forwards the letter
to C. Here A. and B. have, and D. has not, made a statement of the
purport of the letter to C., and P. has not, but Q. has, made the like

(x) It seems now doubtful in Blake Odgers on Libel and Slander,

British India how far the English ch. vi.
distinction between slander and (z) See Stephen, Dig. Or. L., Art.
libel is adopted. Compare Nil- 267.
madhab Mookerjee v. Dookeeram (a) Muhammad Ismail Khan v.
Khottah, 15 B. L. R. 151, with Muhammad Tahir, 6 N. W. P. 38.
Kdshiram Krishna v. Bhadu Bapiiji, Familiar law in England.
7 B. H.
C. (A. C.) 17. (b) Pitumber Doss v. Dwarka
(y] R. v. Burdctt, 4 B. & Aid. 95 ; Pershad, 2 N. W. P. 435.
Stephen, Dig. Cr. L., Art. 270;
NN2
548 INDIAN CIVIL WRONGS BILL.

statement to X. [But qu. whether a professional letter- writer ought to

be held in India to publish the contents of documents written or read by
him in the way of his business.]
5. A. is a Brahman attached to a temple at Gandharvanagar. X.
says to Z,, in a public place, that all Brahmans are impostors and cor-
rupters of the Vedas. This is no wrong to A. Z. answers, "Not all

Brahmans, but you say well as to those of the temple of Gandharvana-

gar." This may be a wrong to A.

Note. This clause is intended to contain the fundamental

definitions. Sub-clause (1) does away with the fiction of
" " " malice in
implied malice or law," a course which
seems clearly authorized by Lord Blackburn's language in
Capital and Counties Bank v. Henty, 7 App. Ca. at p. 771,

772, 782, and especially 787 and see Stephen, Dig. Or.
;

Law, Art. 271, and note XYI. in Appendix. Sub-clause

(2), combined with the interpretation in sub-clause (5),

gives the substance of existing law without the non-natural

use of the words "publish" and "publication." The
"
phrase of the P. C., s. 499, is makes or publishes," but
publication is not further defined. Sub-clause (3) states

existing law. Sub-clause (4) abolishes (if now existing in

British India) the distinction between slander and libel.
As to sub-clause (5), illustrations might be multiplied
indefinitely. But it is really a matter of common sense.

The sub-clause might, perhaps, be safely omitted.

Construe- 33. In determining whether words are or are not

(1)
words defamatory, regard is to be had in the first place to their
natural an(l ordinary meeting, and also, if necessary, to
plained of
as defa- fa e S p eci al meaning, if any, which the words were fitted to

convey (c).

(2)In ascertaining any such special meaning regard is

to be had to the context of which the words are part, the
persons to whom and the occasion on which they were

(c)
See the law explained and discussed in Capital and Counties Bankv.
Henty, 7 App. Ca. 741.
 SPECIAL PART. 549

communicated, the local usage and understanding of terms,

and all other relevant circumstances.

(3) When words are capable of an innocent meaning

and also of a defamatory meaning, it is a question of fact
which meaning they conveyed (d).
(4) Provided that the burden of proof is in every case
on the party attributing to words a meaning that exceeds
or qualifies their natural and ordinary meaning ;
and such
proof is admissible only if in the opinion of the Court the
words are capable of the alleged meaning (e).

34. A person is not the less answerable for a defamatory Besponsi-

statement by reason only that he makes it by way of repe- statements
tition or hearsay, or gives at the time or afterwards the
8a7
authority on which he makes the statement, or (subject to
section 38 of this Act) believes the statement to be true :

Provided that the Court may take these or like circum-

stances into account in awarding damages (/).

Illustration.

A. is the chairman of the M. railway company, and a chairman and

director of other companies. X. and Z. are speaking of a fall in the
" You have heard what has caused the fall
company's shares. Z. says, ;

I mean the rumour about the M. chairman having failed?" This may
1

be a defamation of A though such a rumour did

.
, exist, and was believed
by Z. to be well founded.

See the chapter of " Con-

(d) excepted (and subject to the rule
damage in slander, which
' '
struction and Certainty in Blake of special
Odgers' Digest, and the illustra- it isproposed here to abrogate), a
tions there collected. man defames his neighbour at his
The rules as to burden of peril. It may seem a hard rule,
(e)
proof have been produced by the but it is now well settled in Eng-
need for denning what is the proper land, and the general exception of
direction for a jury. It may be cases of trifling harm (clause 26 of
a question whether it is desirable this draft) would be at least as
to make them formally binding on effectual to prevent it from having
judges deciding without juries. oppressive results as the English
(/) Watkin v. Hall, L. R. 3 Q. rules limiting the right of action
B. 396. This is only the developed for slander as distinguished from
statement of the principle of the libel,
common law that, certain occasions
550 INDIAN CIVIL WRONGS BILL.

Fair 35. It is not defamation to make or publish in good

OT*li"l O1STYT

is not de- faith any fair comment on matters of public interest or

Dn *
matters otherwise fairly open to public comment.

Illustrations.
The conduct of a person in the exercise of any public office or in any
public affairs in which he takes part is matter of public interest.
The conduct of local authorities in local administration, and of the
managers cf public institutions in the affairs of those institutions, are
matters of public interest (g}.
A published book or paper, a work of art publicly exhibited or offered
for sale, a public building, or publicly exhibited architectural design, a
new invention or discovery publicly described or advertised, a public per-
formance or entertainment, the conduct of persons in public places, are
open to public comment.
[The term "privilege" has sometimes been applied to cases of this
class, but wrongly: Merivalev. Carson, 20 Q. B. Div. 275.]

Fair public 36. It is not defamation to publish or cause to be pub-

'reports are .

not defa- lished in good faith a correct and impartial report of a

public judicial or legislative* proceeding. Any proceeding

of which the publication is authorized by the Court or

legislative body before or in which it takes place is, but a

proceeding of which the publication has been forbidden by
that Court or legislative body is not, a public proceeding
for the purpose of this section.
" of a
{^Alternative reading, public judicial proceeding
or of any proceeding in either House of the Imperial Par-
liament or any Committee thereof, or of any public pro-

ceeding of the Council of the Governor General or any

other Council established under the provisions of, the Indian
Councils Act, 1861 (A)."]

Illustration.
A. present at proceedings before a magistrate in the course of which
is

imputations are made on B.'s conduct. A. sends a substantially correct

report of the proceedings to a newspaper, and the newspaper publishes it.
No wrong is done to B. if A. sends the report only for the purpose of

(g) See Purcell v. Sowler, 2 C. P. (A) 24 & 25 Viet. c. 67.

Div. 215.
 SPECIAL PART. 551

giving information to the public on a matter of general interest. But if

A. sends the report from motives of ill-will towards B., this may be a

wrong to B. (i) .

37. In the following cases the wrong of defamation is Excep-

not committed against a person concerning whom a state- grounds of
ment made, though the statement he d.efamatory, and
is

whatever he the intention, motive or helief of the person

making the statement :

(1) If the statement is true :

provided (k) that a party Truth in
J
substance.
relying on the truth of a statement must prove
the substantial truth of that statement as a whole
and of every material part of it.

(2) If the statement is made in the course of a judicial State-

proceeding hefore a competent Court, and has course of

reference to the matter before the Court [or is OC eeV

in 8 or
made in the course of J debate
any or proceeding3 1 8'. 1 .

legislative
of the Council of the Governor Greneral, or any debate.

other Council established under the provisions of

the Indian Councils Act, 1861 (/)].

(i}
Stevens v. Sampson (1879) 5 ments in a petition preferred in a
Ex. Div. 53. It was decided only judicial proceeding held to be pro-
in 1868 (Wason v. Walter, L. R. 4 tected only if made in good faith) :

Q. B. 73), that a fair report of a also Hinde v. Bandry, I. L. R.

parliamentary debate cannot be a 2 Mad. 13, which does not decide
libel. Reports, &c. published by the point, but declines to assume
authority of either House are pro- that the English rule holds. The
tected by statute 3 & 4 Viet. c. 9, vague phrase, "has reference," is
which I presume applies to British the result of Minister v. Lamb, 1 1
India. Perhaps it is needless to Q. B. Div. 588, which decides that
refer expressly to that Act here. an advocate' swords are not action -
The High Courts would, I suppose, able if they have anything to do
apply Wason v. Walter to fair with the case they need not be
;

reports of proceedings in the Go- relevant in any more definite sense.

vernor General's Council, &c. The Words spoken by a judge in his
case is not provided for in sect. 499 office fall within the more general
of the Penal Code, and I cannot exception of judicial acts (clause 16
find any other Indian authority, above). See also as to the use of
legislative or judicial, on the point. the word "relevant" the judg-
(k) I am not sure that the pro-
ment Lord Bramwell (then a
of
viso is necessary under a rational member of the C. A.) in Seaman v.
system of pleading. Netherclift, 2 C. P. D. at p. 59. As
(/) Qu. as to the policy of ap- to speeches in Council, the reason
plying this rule in India to the of the thing suggests that they
full extent given to it in England. must be privileged, but I do not
See Abdul Hakim v. Tej Chancier find any authority.
Hfitkarji, I. L.R. 3 All. 815 (state-
552 INDIAN CIVIL WRONGS BILL.

Explanation. For the purposes of this section the pro-

ceedings of a naval or military court-martial, or court of

inquiry, or any other body lawfully authorized to take
evidence with a view to a determination of a judicial

nature, such court or hody being constituted according to

the law, regulations or usage applicable to the subject-

matter, and dealing with a matter which by such law,

regulations or usage is within its competence, and all
reports and statements made in the course of naval,

military or official duty in reference to such proceedings,

are deemed to be judicial proceedings (m).

State-
38. (1) Where a statement is made
ments on
privileged (i)
in discharge of a legal, moral or social duty existing,
occasions.
or by the person making the statement believed
in good faith to exist, of giving information in

the matter of the statement to the person to whom

it is made ;
or

(ii)
to a public servant, or other person in authority, in
a subject-matter reasonably believed to be within
his competence, with a view to the prevention or

punishment of an offence or redress of a public

grievance or ;

(iii)
with a view to the reasonably necessary protection of
some interest of the person making the state-
ment ;
or

(iv) with a view to the reasonably necessary protection of

an interest or the proper performance of a duty
common to the person making the statement and
the person to whom it is made ;

(m) It is not free from doubt ordinary "privileged communica-

whether reports made in the course tions," i.e., are protected only if
of military (or other official ?) duty, made bona fide. This clause is in-
hut not with reference to any pend- tended to leave the unsettled points
ing judicial proceeding, are "ab- at large.
solutely privileged," or are only
 SPECIAL PART. 553

that statement is said to be made on a privileged occa-

sion (n).

(2) It is not defamation to make a statement on a Immunity

of state-
pnvileged occasion in good faith, and in a manner not ments in
ai
exceeding what is reasonably sufficient for the occasion. onpri-
(3) A
statement made on a privileged occasion is
vile
??
d
occasion,

presumed to have been made in good faith (o).

(4) What reasonably sufficient for the occasion is a

is

question of fact to be determined with regard to the whole

circumstances (o).

Illustrations.
1. Z. has been A.'s servant, and offers himself as a servant to M. M.
asks A. his opinion of Z.'s character and competence. This is a privi-
leged occasion, and no wrong is done to Z., though A.'s account of him
given to M. be unfavourable, unless Z. can prove not only that A.'s
account was not true in substance, but that A. spoke or wrote, not with
the honest purpose of giving information to M. which it was right that
M. should have, but from personal ill-will to Z.
2. Z.is A.'s servant and a minor. A. dismisses Z. on suspicion of
theft, and writes to Z.'s father explaining the grounds of his suspicion.
Afterwards A. sees Z. in conversation with P. and Q., other servants of
A., and warns P. and Q. against having anything to do with Z. A.'s
letter to Z.'s parents is written, and his warning to P. and Q. is given,
on a privileged occasion p) (
.

3. A., a merchant who has dealings with B., sends Z. to B.'s office

with a message. After Z. has left B.'s office B. misses a purse from the
room in which Z. has been. B. goes to A. and tells him that Z. must
have taken the purse. This occasion is privileged (q).
4. A. and B. are part owners of a ship. A. hears unfavourable reports
of the master's conduct as a seaman and communicates them to B. This
occasion is privileged (r) .

5. A. and B. are partners. C. is their managing clerk. X. writes a

letter to the firm proposing a business transaction. C. opens the letter

(n) There is some temptation to (o) These sub -clauses are perhaps
get rid of the term "privileged unnecessary.
occasion" altogether: but as it (p) James v. Jolly, Blake Odgers,
would in any case persist in forensic 212 Somerville v. Hawkins, IOC. B.
;

usage, and is certainly convenient 583, 20 L. J. C. P. 131.

for separating the two distinct (q) Amann v. Damm, 8 C. B. N.
questions of the character of the S. 597, 29 L. J. C. P. 313.
occasion, and whether it was legi- (r) Concessum, Coxhead v. Rich'
timately used, it seems best to keep ards, 2 0. B. 569, 15 L. J. C. P.
it in the draft. 278.
554 INDIAN CIVIL WRONGS BILL.

and submits it A. that from his own knowledge of X. he

to A., telling
does not think the firm ought to trust him. A. shows X.'s letter and
repeats this conversation to B., and A. and B. cause a letter to be sent
in the name of the firm to P., a customer of theirs, stating the circum-
stances and asking for information as to X.'s business reputation. P.
sends an answer in which he makes, partly as from his own knowledge
and partly on general information, various unfavourable statements
about X. These statements concerning X. are all made on a privileged
occasion.
6. Sending defamatory matter by telegraph, or on a postcard, or the
communication of such matter by any means to an excessive number of
persons, or to persons having no interest, or the communication by negli-
gence to one person of matter intended for and proper to be communi-
cated to another person, or the use of intemperate language, may make
a statement wrongful, even if the occasion is otherwise privileged (s) .

A. and Z. are inhabitants of the same town. Z. is the executor of

7.

a friend who has left a widow and children surviving. X. is Z.'s agent
in the executorship. A. says to Z. in the presence of other persons,
"You and your agent are spoken of as robbing the widow and the
orphan." The occasion is privileged as regards both X. and Z., if A.
intended in good faith to communicate to Z. matter which A. thought
it important that Z., for the sake of his own character, should know.
The question of what A.'s intention really was depends, among other
things, on the circumstances of the conversation and the number and
condition of the persons present (t).

CHAPTER Y.

WRONGS AGAINST GOOD FAITH.

[It is proper to mention that these clauses
and the notes to them were
written before Derry v. Peek (p. 255 above) had come before either the
Court of Appeal or the House of Lords.]

Deceit. 39. A
person wrongs another who deceives that other
within the meaning of this Act (u) .

(s)
Williamson v. Freer, L. B,. 9 the Penal Code, s. 415, is very wide,
C. P. 393 Reg. v. Sankara, I. L. R.
; yet it does not completely cover the
6 Mad. 381 (notice of putting out ground of deceit as a civil wrong,
of caste sent on a postcard). For in some cases an action for de-
Davies v. Snead (1870) L. R. 5 ceit will lie without any bad inten-
(t]
Q. B. 608 (with some doubt as to tion, and even in spite of good
the verdict) . intention, on the part of the def en-
(u) The definition of cheating in dant (Polhill v. Walter, 3 B. & Ad.
 SPECIAL PART. 555

40. (1) Where one person makes a statement to another Deceit

!
.
T defined.
which

(a) is untrue ;
and
(b) which the person making it does not believe to be
true, whether knowing it to be untrue, or being

ignorant whether it is true or not and ;

(c) which the person making it intends or expects to be

acted upon in a certain manner by the person to
whom made, or with ordinary sense and pru-
it is

dence would expect to be so acted upon and ;

(d) in reliance on which the person to whom it is made

does act in that manner to his own harm ;

there the person making the statement is said to deceive

the person to whom it is made (x) .

(2) For the purposes of be

this section, a statement may
made in any of the ways mentioned in s. 32 (y] of this Act,
and may be made either to a certain person or to all or any
of a number of persons to whom it is collectively addressed.

Explanation. (1) A statement

intended by the person

making it to be communicated to and acted upon by a

person is deemed to have been made to that person.

114), the principle being that if a disclosure, may avoid a contract;

man takes on himself to certify in some classes of contracts a very
that of which he has no knowledge, strict duty of disclosing material
even in the honest belief that he is facts is imposed by law but I ;
am
acting for the best, he shall an- not aware that a mere omission to
swer for it if the fact is otherwise. give information has ever been
On the other hand, the Penal Code treated as an actionable wrong,
does cover all ordinary cases of even in those cases where a con-
fraud, and the once vexed question tract " uberrimae Jidei " has created
"

as to the responsibility of a prin- a special duty of giving it. Of

cipal in tort for the fraud of his course, the remedy ex contractu is
agent does not seem easy to treat better, and this may account for
as open in British India in the face such concealments and non-disclo-
of sect. 238 of the Contract Act, sures not being treated as torts,
though that enactment does not However, I believe that these clauses
directly settle it. as drafted go to the full extent of the
(x) It has been suggested
that authorities.
there may be deceit by concealment (y} The clause defining defama-
of facts without any statement at tion.
all. Concealment, or even non-
556 INDIAN CIVIL WRONGS BILL.

(2)"Where a person acts in reliance on the statement of

another, it is immaterial that he had the means of examin-

ing the truth of that statement.

(3) A
statement may be untrue, though no part of it is
in terms untrue, if by reason of material facts being omitted
the statement as a whole is fitted to deceive (z).

Illustrations.
1. N. draws a bill on X. The bill is presented for acceptance at X.'s
office when X. is not there. A., a friend of X., who is there but not
concerned in X.'s business, accepts the bill as X.'s agent. He has not,
in fact, any authority to accept, but believes that the bill is drawn in the
regular course of business, and that X. will ratify the acceptance. The
bill is dishonoured when due, and Z., the holder in due course, is unable

to obtain payment. A. has deceived Z., though he honestly meant to

act for the bent fit of all parties to the bill for he has represented to all
;

to whom it might be offered in the course of circulation that he had

authority to accept in the name of X., knowing that he had not such
authority, and Z. has incurred loss by acting on that representation (a).
2. A., B., and C. are partners in a firm D. and E. agree with them to
;

form a limited company to take over the business of the firm, and to
become directors jointly with A., B., and C. A prospectus is prepared
and issued with the authority of A., B., C., D., and E., stating, among
other things, that the consideration to be paid by the company for the
goodwill of the business is Us. 10,00,000. Z. applies for and obtains
shares in the company on the faith of this prospectus. In fact the firm
is insolvent, and the Rs. 10,00,000 are intended to be applied in paying
its debts. The company fails and is wound up, and Z. incurs liability as
a contributory. A, B., C., D., and E. have deceived Z. (b).
3. In the case stated in the last illustration P. applies for and obtains

shares on the formation of the company. Afterwards P. offers his shares

for sale, and Q. having read the prospectus and relying on the truth of
.

its contents, buys P.'s shares. The authors of the prospectus have not
deceived Q., for it was addressed only to persons who might become
original shareholders, and not to subsequent purchasers of shares (c).
4. A. offers to sell his business to Z. ;
assures him that the annual

profits, as shown by the books, exceed Rs. .5,000, and tells Z. that he
may examine the books. Z., on the faith of A.'s statement, agrees to
the terms proposed by A. without examining the books. If he had

(z) See per Lord Cairns in Peek Indian use.

v. Gurnet/, L. R. 6 H. L. at p. 403. (*)
Peek v. Gurneij, L. R. 6 H.
(a) Polhill v. Walter,
&
3 B. Ad. L. 377.
114. Doubt is expressed whether (c] Ibid.
this be a suitable illustration for
 SPECIAL PART. 557

examined them he would have discovered, as the fact is, that the profits
are much less than Us. 5,000. This will not preclude Z. from suing A.
for deceit (d).
5. A. deals with Z., a
gunsmith, and requires a gun for the use of A.'s
son, B. Z., in B.'s presence, and knowing that the gun is wanted for
B.'s use, warrants to A. gun is of good workmanship and
that the
materials and safe to use. A. thereupon buys the gun, and gives it to
B. The gun is, in fact, badly made, and Z. knows it, and by reason
thereof, the first time B. fires the gun it bursts and wounds B. Z. has
deceived B. (<?).

41. A person wrongs another who causes harm to that Slander of

other by making, for the purpose of injuring that other, a
statement which is untrue, and which he does not believe
to be true

(a) concerning that other's title or interest in any pro-

perty:
(b) concerning any pretended exclusive right or interest
of his own as against that other.

42. A person wrongs another who Malicious

(a) without reasonable and probable cause, and tionT

(b) acting from some indirect and improper motive, and

not in furtherance of justice,

falsely accuses that other of an offence, of which offence

that other is acquitted by the Court before which the
accusation is having been convicted in the first
made, or,

instance, is ultimately acquitted on appeal by reason of the

original conviction having proceeded on evidence known

by the accuser to be false, or on the wilful suppression by
him of material information (/).

(d) On this point, see Redgrave v. 519, 4 M. & W. 338.

Hurd, 20 Ch. D. 1 It is pointed out
. Per Bo wen L. J. Abrath v.
(/)
that Explanation 2, and this illus- N. E. R. Co., 11 Q. B. D. 440,
tration, are hardly consistent with 455. This case [since affirmed in
the exception to s. 19 of the Con- H. L. 11 App. Ca. 247] is the latest
tract Act. That exception is not authority in the Court of Appeal,
in accordance with English law as and defines the cause of action
now settled, and ss. 1719 are carefully and completely. The
generally not very satisfactory. condition as to the proceedings
(e) Langridge v. Levy>
2 M. & W. having terminated in favour of the
558 INDIAN CIVIL WRONGS BILL.

Explanation. The
must prove both the absence
plaintiff
of reasonable and probable cause, and the existence of an
indirect and improper motive for the prosecution (g) .

Abuse of
43^ A person wrongs another who causes harm to that
process of
Court. other by wilful abuse of any process of the law (h) .

Note. There are other miscellaneous wrongs which may be generally

described as malicious interference with rights. I think the doctrine of
Lumley v. Gye and Boiven v. Hall really comes under this head, and does
not (as has been suggested) establish a sort of right in rem not to have
the fulfilment of contracts made with one interfered with. To the same
class belongs Ashby v. White, as explained in Tozer v. Child, 7 E. & B.
377. But I submit that the law on these questions is neither settled
enough to make immediate codification prudent, nor of sufficient practical
importance to make it probable that delay will do any harm.
The doctrine of Lumley v. Gye might be expressed in some such words
as these :

"A person wrongs another who wilfully, and with the design of
harming that other or gaining some advantage for himself over that
other, procures a third person who has entered into a contract [qu. for
exclusive personal services] with that other to break his contract, whereby
that other loses the benefit of the contract."

accused is in British India compli- will have to be recast if the body of

cated by the system of appeals in the clause is altered as suggested.
criminal jurisdiction. See Alex- The English authorities on mali-
ander, Indian Case -Law on Torts, cious prosecution seem to be ap-
130, 131. It does not seem de- plicable in British India see 11
;

sirable to depart from the common B. L. R. 328.

law as down in Abrath v. N.
laid (/<)
That malicious abuse of civil
E. R. without evident neces-
Co. process may be actionable, see Raj
sity but some provision has to be
;
Chunder Roy v. Shama Soondari Deli,
made for the case of a conviction I. L. R. 4 Cal. 583. In this class of
being reversed. That which I sub- cases, as distinguished from mali-
mit is intended to represent the cious prosecution, special damage
better Anglo-Indian opinion upon must always be shown. See Bige-
this point. low, L. C. 181, 206. I do not
" think it would be desirable to add
(g] Knowing that there is no
just or lawful ground for his accu- illustrations to this clause at all ;
" events not without intimate know-
sation (after P. C. 211) has been
suggested, and might be a good ledge of Anglo-Indian judicial pro-
simplification to replace the two ceedings. The same remark ap-
sub -clauses (a) and (b). The draft plies to the clause on malicious
follows the language of recent Eng- prosecution.
lish authority. The explanation
 SPECIAL PART. 559

CHAPTER VI.

WRONGS TO PROPERTY.

44. Every one commits a wrong, and is said to commit Trespass

a trespass and to be a trespasser, who, without the consent
of the owner of such property as in this section mentioned
or other lawful justification or excuse [and to the damage
or annoyance of the owner (*)],

(1) enters on any immoveable property, or causes any

animal to go upon such property, or permits any
animal in his possession or custody, being to his

knowledge or by its kind accustomed to stray, to

go upon such property, or puts, casts or impels

anything in, upon or over such property ;

(2) assumes to exercise ownership over any moveable

property, or does any act which deprives the owner

of its use permanently or for an indefinite time (k) ;

(3) destroys or damages any property ;

(4) does any other act which directly interferes with the
lawful possession of any property, moveable or
immoveable.

45. For the purposes of the last foregoing section every Protection

one who is in lawful possession of any property, or who renTright

sses "
peaceably and as of right is in actual occupation, or has the *? P

actual custody or control (/), of any property, is deemed

to be the owner thereof as against every one not having a
better title.

(i)
See note at the end of this [This probably goes beyond
(t)

chapter. settled English authority. But it

(&) Per Bramwell B. Hiort v. is by no means certain that in
Bott (1874) L. R. 9 Ex. 86, 89 ; England a servant having the cus- '

cf the judgment of Thesiger L. J.

.
tody of a chattel out of his master's
in Jones v. Hough (1880) 5 Ex. D. presence or the protection of his
115, 128. house cannot sue a trespasser in
his own name ; see p. 292
above.]
560 INDIAN CIVIL WRONGS BILL.

Trespass 46, A person who

has lawful possession, custody or

sessorior control of property under a contract with the owner of that

purpose property or otherwise may become a trespasser by dealing

exceeding
his right.
with the rproperty
* in a manner inconsistent with the title
.

by which he has that possession, custody or control or in

excess of his rights under that title.

Illustration.
If a pledgee withpower of sale sells the pledge without the conditions
being on which
satisfied the power of sale is exercisable, or a hirer of
goods pledges them for his own debt, or a bailee without the bailor's
consent lends the goods in his custody to a third person, these and the
like acts are trespasses (m).

Mistake 47. Interference with the property of another is not

excused by mistake even in good faith as to the ownership
generally
excuse or t ne right of possession, or by an intention to act for the
trespass.
true owner's benefit :

Immunity Provided that a carrier or other person using the

of certain
minis- carriage or custody of goods as a public employment does
actions. n t commit a by dealing with goods in the ordinary
trespass
way of that employment and solely by the direction and
on behalf of a person who delivers those goods to him for
that purpose and whom he in good faith believes to be
entitled to deal with those goods :

Provided also that a workman or servant does not

commit a trespass by dealing with any property in the
ordinary way of his employment and in a manner autho-

rized as between himself and his employer and which he in

good faith believes his employer to be entitled to authorize.

Illustrations.

1 obtains goods from Z. by fraud and false pretences, and, being

. M.
apparent owner of the goods, purports to sell them to A., who in good
faith accepts them and pays M. for them. A. is, in fact, dealing on
behalf of P. ,
and forthwith delivers the goods to P. M. absconds with

(m} Donald v. Suckling , L. B. 1 Q. B. 585, is the recent leading case.

 SPECIAL PART. -561

the price. A. has wronged Z., and is liable to Z. for the value of the

goods (n).
2. A. is a tenant of land belonging to B. A. without authority, but
intending to act for B.'s as well as A.'s benefit, converts part of this land
into a tank. A. has wronged B., and B. need not prove that the value
of the land is diminished (o).
3. A. obtains goods by fraud and false pretences from Z. at Bombay,

and sends them by railway to B. at Allahabad. The railway company's

servants deliver the goods at Allahabad to B. 's order according to the usual
course of business. If the railway company has not before this delivery
received any notice of an adverse claim on the part of Z., the railway

company has not wronged Z.

4. Z. is the owner of 100 maunds of wheat. A. obtains this wheat
from him by fraud and false pretences, and offers it for sale to B., a miller,
who accepts it in good faith. B. causes the wheat to be ground in his
mill together with other wheat bought by B. from the true owners. The
men employed in the mill do not know from whom the wheat was bought.
Here B. may have wronged Z., but the men employed in the mill have
not (p).

48. The mere assertion of a right to deal with property Mere *

1 -C

or to prevent another from dealing with it is not a trespass, ritht can-

not be
tresP ass -
49. The consent of an owner to entry upon or inter-
ference with his property is called a licence, and a person defined,

to whom such consent is given is called a licensee.

A licence, and the revocation of a licence, may be either
express or tacit.
illustration.

A man who keeps an open shop or office thereby gives to all persons
who may wish to deal with him in the way of his business a licence to

(n) Sol/ins v. Fowler, L. R. 7 H. bailee for a special purpose without

L. 757. notice of the true owner's claim, as
(0) Tarini Ch/tran Hose v. Debna- well as his servants ; and as to
rat/an Mistri, 8 B. L. R. App. 69. carriers, cf. Sheridan v. New Quay
If the conversion were proved to be Co., 4 C. B. N". S. 618. To give full
beneficial to the property, qucere. effect to Lord Blackburn's opinion
(p) As
to these exceptions, see the proviso would have to protect
the opinion of Blackburn J. in all persons handling the goods of
Hollins v. Fowler, L. R. 7 H. L. at others in the way of their business,
pp. 766-8, which seems to favour Lord Blackburn himself points out
making them wide enough to pro- that this would go beyond existing
tect the miller or spinner, if acting authority. Whether it should be
in good faith and without pur- done is submitted as a question of
porting to acquire any interest in policy,
the corn or cotton beyond that of
P. O O
562 INDIAN CIVIL WRONGS BILL.

enter the shop or office during business hours. If he gives up the

business and turns the shop or office into a private dwelling-house, this
licence is revoked.

Effect of
licence.
50 (q). A licence-
(1) does not bind the successors in title of the licensor ;

(2) is not assignable by the licensee ;

(3) is limited to the purposes for which and subject to

the conditions, if any, on which it is given ;

(4) is revocable at the will of the licensor, unless coupled

with an interest.

Explanation. A licence is said to be coupled with an

interest where
given as part of the same transaction
it is

with the conveyance of a legal interest in some property by

the licensor to the licensee, and that interest cannot be

enjoyed without doing the act permitted by the licence.

Illustration.
A. sells to B. cattle which are pasturing on A.'s land, or trees growing
on A.'s land. This implies a licence to B. to enter on A.'s land to take
the cattle away, or to cut the trees, as the case may be, and A. cannot
revoke the licence while the contract of sale is in force.

Time of 51. Notwithstanding the revocation of a licence, the

afte^re- licensee is entitled to the benefit of the licence for a

vocation of reasonable
licence.
time thereafter so far as may
* be necessary to
m

enable him to restore the former state of things (r).

(q)Chapter VI. of the Easements know that any great harm would
Act (V. of 1882) deals with licences come of having both in force over a
as regards immoveable property limited extent of territory,
only. It is submitted that, inas- (r) Great trouble has been caused
much as a licence does not create an in the United States by the un-
interest in property, but merely ex- timely revocation of parol licences
cuses what would otherwise be a to erect dams, divert watercourses,
trespass, the subject belongs to the and the like; Cooley on Torts, 307
law of torts more properly than to 312 and in some cases the law
;

the law of easements. This being has been strained to confer rights
so, and the local extent of the Ease- on the licensees under the doctrine
ments Act being limited, I leave of estoppel or part performance,
the matter to the consideration of I do not know whether similar
the Government of India. The two difficulties are to be apprehended
sets of clauses are intended to de- in British India,
clare the same law, and I do not
 SPECIAL PART. 563

Illustrations.
B. is on A.' s land under a revocable licence. A. revokes the licence.
1.

A. must not remove B. from the land until B. has had a reasonable time
to leave it.

B. has timber lying on A.'s wharf under a revocable licence. A.

2.

revokes the licence. A. must allow B. access to the wharf for a reason-
able time for the purpose of removing his timber (*).

52. A person entitled to the possession of any moveable

*
True
owner's
.

i p
property who has heen wrongfully deprived thereof may right of

[within a reasonable time] retake the same if he can peace-

ably do so, and so far as necessary for that purpose may
peaceably enter on the wrongdoer's land (t)
.

Note. The term "trespass " has been extended to cover every kind of
wrongful interference with property. Our distinctions between trespass,
conversion, &c. are obviously not applicable in British India. Simplifica-
tion at least as bold as that of the present draft is a necessity.
It may be a grave question whether the strict rule that a man meddles
with another's property absolutely at his peril be altogether fitted for
Indian purposes, especially in its "application to immoveable property. I
" to the
suggest for consideration the insertion of the words damage or
annoyance of the owner," or words to the like effect, as part of the defi-
nition. So far as I am aware, the change would be only equivalent to
what is the settled law of all civilized countries not under the common
law, including Scotland. It is so much the case that the English law of
trespass is unknown in Scotland that it has been found necessary to pro-
vide by statute against camping out in private grounds, and other things
ejusdem generis : 28 & 29 Viet. c. 56, which makes the acts there described

police offences. Not that other systems declare a right of "innocent

passage" over a private owner's land, but they do not provide any means,
" at the
other than "self-help time, of treating such passage as a wrong
where there is no damage and no annoyance. What circumstances are
sufficient evidence of injurious intent, c. g. whether climbing over a fence
would have this effect, must be a matter of detail to be regulated accord-
ing to the habits of the country.

See Cornish v. Stubbs (1870) L. "fresh pursuit;" the Court do not

R (s)
5 C. P. 334, 339and Mellor v. ; say anything of this being a neces-
Watkins (1874) L. R. 9 Q. B. 400. sary condition. But I suppose re-
(t)
Patrick v. Colerick, 3 M. & W. capture should be, if not strictly on
483, explaining Blackstone's state- fresh pursuit in every case, yet
ment, Comm. iii. 4, which denies within a reasonable time. English
the right of entry on a third per- authorities are scanty on this point.
son's land for capture, except where There seem to be many modern
the taking was felonious. The plea American cases.
in Patrick v. Colerick has the phrase

oo2
561 INDIAN CIVIL WRONGS BILL.

CHAPTER VII.

NUISA.NCE.

Special 53. Where damage is caused to any person by a

special
damage
from public nuisance within the meaning of the Indian Penal
public
nuisance. Code, section 268, the person guilty of the nuisance wrongs
and is liable to the person suffering the damage.
Explanation. Special damage for the purpose of this

section means some injury, obstruction, danger or annoy-

ance to a person, or to his property or business, consequent

upon his exercise of a public right being interfered with,

and distinct from the fact that it is interfered with.

Illustrations.

1. Z. unlawfully digs a trench across a high road, whereby A. and

others are prevented from freely passing and repassing thereon. This is
no private wrong to A. But if A., going along the road in the dark and
not knowing of the obstruction, falls into the trench and is lamed, this is
a special damage for which Z. is liable to A. ().
2. Z. unlawfully obstructs a navigable river. By this obstruction A.
is prevented from taking a certain cargo of goods to market by water, and
has to take them overland at increased cost. The expense thus incurred
by A. is special damage for which Z. is liable to him ().
3. Z. unlawfully obstructs a street in a town by conducting building

operations in an unreasonable manner. A. is a shop-keeper in the same

street, and by reason of the obstruction traffic is diverted from his shop,
and he loses custom and profits. This is special damage for which Z. is
liable to A. #.

(0 Y. B. 27 H. VIII. 27, pi. 10. JTobson, 14 Ch. D. 542. Rickefs

Rose v. Miles, 4 M. & S. 101.
(w) Case is perhaps best treated as an
(#) Wilkes v. Hungerford Market anomalous decision on the construc-
Co., 2 Bing. N. C. 281 this has
; tion of a statute with regard to
been thought to be overruled by particular facts the Court below
;

Ricket v. Metropolitan R. Co., L. R. Seem to have thought the obstruc-

2 H. L. 175 (see at pp. 188, 199) ;
tion was trifling. Wilkes's Case has
per Willes J. Beckett v. Midland been followed by the Supreme Court
R. Co., L. R. 3C.P. 100. But this of Massachusetts Stetson v. Faxon,
;

again is difficult to reconcile with 19 Pick. 47 cp. Benjamin v. Storr,

R
;

the principle of Lyoriv. Fishmongers' L. 9 C. P. 400.

Co., 1 App. Ca. 662 ;
see Fitz v.
 SPECIAL PART. 565

4 Z. persistently obstructs a public footway which A. is in the habit

.

of using. A. several times removes the obstruction for the purpose of

passing along the way, and is put to trouble and expense in so doing.
A. has no right of action against Z., for A. has not suffered any
damage or inconvenience except in common with all persons using the.
way(y).
5. A., B., and others, being Mussulmans, are accustomed to carry

tabuts in procession along a certain public road for immersion in the sea. Z.

unlawfully obstructs the road so that the tabuts cannot be carried along
it in the accustomed manner. A. and B. have no right of action

against Z. (z).

54. Every one who is guilty of a private nuisance as Liability

denned by this Act wrongs and is liable to any person nuisance,

thereby harmed.

55. Private nuisance is

...
the using or authorizing the use Private
of one s property, or ot anything under one s control, so as
. nuisance
defined,

to injuriously affect an owner or occupier of property

(a) by diminishing the value of that property :

(b) by continuously interfering with his power of control

or enjoyment of that property:

(c) by causing material disturbance or annoyance to him

in his use or occupation of that property (a) :

What amounts to material disturbance or annoyance is a

question of fact to be decided with regard to the character

of the neighbourhood, the ordinary habits of life and rea-

(y) Winterbottom v.
Lord Derby, perfectly reported.
L. R. 2 Ex. 316. (a) It will not escape observation
(z) Satku Valad
Kadir Sausare v. that to some extent the definition
Ibrahim Ago, Valad Mirzd Agd, I. L. of nuisance overlaps that of tres-
R. 2 Bom. 457, where English au- pass (e.g., the overhanging eaves
thorities are well collected. S. P. or branches in Illust. 2 constitute a
Gehandji bin Kes Patil v. Ganpati continuing trespass). This is so in
bin Lakshuman, ibid, at p. 469; England and all common law juris-
Karim Buksh v. Budha, 1 All. 249. dictions, and it does not produce
Jina Ranchhod v. Jodhd Ghelld, 1 any difficulty or inconvenience that
Bom. H. C. 1, appears to be im- I know of.
566 INDIAN CIVIL WRONGS BILL.

sonable expectations of persons there dwelling, and other

relevant circumstances (b).

Illustrations.

1. Z. has chemical works near A.'s land, the fumes from which kill or
stunt vegetation on A.'s land and reduce its selling value. Whether the
land is or is not rendered less wholesome for human habitation, Z. has
wronged A. (c).

2. If whose eaves overhang A.'s land, or if the branches

Z. has a house
of a tree growing on Z.'s land project over A.'s land, this is a nuisance
to A., inasmuch as it interferes with his powers of control and enjoy-
ment on his own property, and also tends to discharge rain-water on A.'s
land (d).
3. Z. has a lime-kiln so near A.'s house that, when the kiln burns, the

smoke enters A.'s house and prevents A. and his household from dwelling
there with ordinary comfort. This is a nuisance to A. (<?).
4. Z., a neighbour of A.'s, causes bells to be rung on his land so loudly

and frequently that A. cannot dwell in his house in ordinary comfort.

This is a nuisance to A. (/).
5. A., living in a street in Calcutta, complains of noises proceeding
from the house of his neighbour Z. as being a nuisance to him. In de-
ciding whether a nuisance exists or not, regard is to be had to the general
habits of life of persons dwelling in cities (g] .

Pre-exist- who enters on the occupation of land or of

ence of
$Q t j^ person
nuisance a house with knowledge that a state of facts which causes
rial. or is likely to cause a nuisance to occupiers of that land or
house exists or is does not therehy
likely to exist near it

lose his right to complain of any nuisance caused by that

state of facts (h).

(b) See Walter v. Selfe, 4 De G-. (e) Aldretfs Case, 9 Co. Rep. 59a ;

& Sm. 315 Salvin v. North Brance-

;
Walter v. Selfe, note (b), and other
peth Coal Co., 9 Ch. 705. modern brickburning cases, e. y.

(c} St.Helen's Smelting Co. v. Bamford v. Turnley, 3 B. & S. 66.

Tipping, 11 H. L. C. 642. know whether
(/) I do not bell-
(d} F. N.
B. 184 d; Penruddock" s
1

ringing common in India. Local

is

Case, 5 Co. Rep. lOOb Fay v. ; knowledge may suggest something

Prentice, 1 C. B. 829 Earl of Lons-
;
more probable and apt.
dale v. Nelson, 2 B. & C. at p. 311 ; (#) Soltau v. De Held, 2 Sim. N.
cp. Harrop v. Hirst, L. R. 4 Ex. S. 133. This seems to cover dfor-
43, an example which must be tiori the cases of noise and vibra-
adapted for Indian use, if at all, tion of machinery, letting off fire-
only on the spot, and with the light works, &c.
of local knowledge. (A) In other words, the old doc-
 SPECIAL PART. 567

Explanation. This section does not affect the acquisition

or loss ofany right under the Indian Limitation Act, 1877,

or the Indian Easements Act, 1882 (&).

Illustrations.

1. Z. has for some years carried on a noisy business on land adjoining

a house built and occupied by A on his own land. The noise is such as
.

to be a nuisance to persons dwelling in the house. B., knowing these

facts, buys A.'s house. Z. wrongs B. if, after B. has entered on the
occupation of the house, he continues his business so as to prevent B. or
his household from dwelling in the house with ordinary comfort. Tt is
immaterial whether A., during his occupation, did or did not complain of
the nuisanco.
2. The facts being otherwise as in the last illustration, Z.'s business

has been carried on for such a time that he may at the date of B.'s pur-
chase have acquired a prescriptive right as against A. and persons claim-
ing through him. Here the previous conduct of A. and his predecessors
in title is material as between Z. and B.
3. Z. has for more than twenty years carried on a noisy business on

land adjoining land of A.'s, on which there is not any dwelling-house.

A. builds and enters on the occupation of a dwelling-house on his own
land near Z.'s workshop. Z. wrongs A. if he continues his business so
as to prevent A. from dwelling in the house with ordinary comfort for :

the doing of acts which were not a nuisance to the occupier of A.'s land
when done could not in any length of time entitle Z. to continue similar
acts after they became a nuisance ().

57. The same facts or conduct may constitute a nuisance Same facts
to several persons, and the wrongdoer is severally liable to distinct

every such person. ^

persons.
Illustration.

Z. has a manufactory. The smoke from the chimneys flows into A.'s
house and prevents him from dwelling there, the noise and vibration of
machinery make B.'s and C.'s shops unfit for carrying on their business,
and the fumes spoil D.'s growing crops. Z. has wronged A., B., C.,
andD.

trine that a man who " comes to a acquired in British India otherwise
nuisance" cannot complain (Blackst. than under one of these Acts ? If
ii. 403) is not now law St. Helen's
; so, the saving words should be
Smelting Co. v. Tipping, and other made to cover them,
recent authorities. (&) Sturges v. Bridgman, 11 Ch.
(i) Qtt. Can prescriptive rights be D. 852.
588 INDIAN CIVIL WRONGS BILL.

Co-exist- 58. Where several persons are guilty of similar nui-

ence of
other sances, every one of them is severally liable to any person
nuisances
thereby harmed, notwithstanding that any such person
no de-
fence.
may suffer harm of the same kind and of equal or greater

amount from the other co-existing nuisances.

Illustration.

A., B., and C. have dye-works on the banks of the same river, and pour
noxious refuse into it to the damage of X., a riparian occupier. A. has
wronged X., even if the water flowing past X.'s land would not be made
for use by A. alone ceasing to foul the stream (I).
fit

When 59. An owner of immoveable property, not being in

owner out . ,

of posses- possession of can sue ior a nuisance to that property

it,
sion can i p ji

sue for on v the nuisance

nuisance. a ) permanently affects the value of the property or
( ;

(b) tends to establish

an adverse claim of right.

Illustrations.

1. A. rents a house in a public street from B. Z. keeps his horses and

carts standing in the streets for long and unreasonable times, in such a
manner as to be an obstruction of the street, and a nuisance to the occu-
piers of the house. Z. has wronged A. only, and not B. (m).
2. A. rents a field from B., together with a watercourse passing

through the field. Z., an occupier higher up the stream, fouls the water
so as to be a nuisance to A. Z. has wronged both A. and B., as his acts
would, if not resisted, tend to establish a claim to foul the stream as
against B.
3. Z. has smelting works near A.'s land. The fumes from the works
kill or spoil the trees growing on A.'s land, make it generally less fit for
occupation, and dimmish its selling value. Whether A. is or is not occu-
pying the land, Z. has wronged A.

What per- 60. The following persons are liable for the creation or
Sable for a continuance of a nuisance, as the case may be :

nuisance. who
(a) every one actually creates or continues, or
authorizes the creation or continuance of, a
nuisance :

(I)
Wood v. Waud, 3 Ex. 748 ; (m) Mott v. Shoolbrcd, L. R. 20
Crossley\. Ligrhtowler, L. R. 2 Ch. Eq. 22.
478.
 SPECIAL PART. 569

(b) every one who knowingly suffers a nuisance to be

created or continued on land in his possession (n) :

(c) every one who lets or sells land with an existing

nuisance- on it (o) ;
but a lessor is not liable under
this section by reason only of the omission of

repairs which, as between himself and the lessee,

the lessee is bound to do (p) .

Explanation. Where a nuisance caused by a tenant's

is

use of property, the lessor is not liable for it by reason

only that the property is capable of being so used.

Illustration.

A. lets to Z. a house, with a chimney near B.'s windows. Z. makes

fires in this chimney, and the smoke thereof becomes a nuisance to B.
Z. only,and not A., has wronged B., unless A. let the house to Z. with
express authority to use that chimney in the manner in which Z. has
used it (q}.

61. A Civil Court may make an order for removing a Concur-

rent civil
public nuisance at the suit of any person who suffers andcri-

special damage by that nuisance, notwithstanding that an jurisdic-

1
order for the like purpose might be made by a magis- J^ ^
trate (r). special
damage
The from
Note. subject of remedies for nuisance appears to be already
sufficiently dealt with by the Specific Relief Act (I. of 1877), chaps. 9 and
P u ^ llc
nuisance.
10, and the Civil Procedure Code, chap. 35, and Form 101 in Sched. 4.
Abatement of nuisances by the act of the party wronged without process
of law is hardly in use in England, except as against infractions of semi-
public rights like rights of common.

.
(n) White v. Jameson, L. R. 18 actually authorizes its continuance;
Eq. 303. Pretty v. Bickmore, L. R. 8 C. P.
(0) Rosewell v. Prior, 12 Mod. 401 Gwinnell v. Earner, L. R. 10
;

635 ;
Todd v. Flight, 9 C. B. N. S. C. P. 658.
377 ;
Nelson v. Liverpool Brewery (q] Rich v. Basterfield, 4 C. B.
Co., 2 C. P. D. 311, and cases there 783.
cited. See, too, Gandy v. Jubber (r} As this point has been raised

(undelivered judgment of Ex. Ch.), and decided (Raj Koomar Singh v.

9 B. & S. 15. Sahebzada Roy, I. L. R. 3 Cal. 20),
the better opinion it may be worth while to deal with
(p) It seems
that the lessor's knowing of the it in the Bill. I do not find that it
nuisance at the time of letting does is noticed in the last revision of the
not make any difference, unless he Civil Procedure Code.
570 INDIAN CIVIL WRONGS BILL.

CHAPTER VIII.

NEGLIGENCE.

Negli- 62. (1) the omission or failure to use due

Negligence is
gence and
diligence. careand caution for the safety of person or property within
the meaning of this Act, and a person so omitting or

failing,whether in respect of his own person or property

or that of others, is said to be negligent.

(2) Diligence in this part of this Act has the same

meaning as due care and caution, and a person using due
care and caution is said to be diligent.

Evidence 63, (1) Where harm complained of as caused by the

is
of negli-
gence. negligence of any person, it is a question of fact whether
that person has or has not been negligent.

(2) A
person is not liable for negligence where the facts
are not less consistent with diligence than with negligence
on that person's part.
(3)In determining whether one person has or has not
been negligent towards another, regard is to be had to that
other's apparent means of taking care of himself (t).

Illustrations.
1. A. occupies a warehouse in which coal is kept. The coal takes fire,
and both A.'s warehouse and an adjoining warehouse belonging to B. are
burnt. B. sues A. for compensation. It is a question of fact whether
there has been negligence on A.'s part, either in the manner in which the
coal was kept, or in the precautions used against fire, or in the endea-
vours made to subdue the fire when it was discovered (u).

(t]
It is not easy to formulate, as authentic statement of it, which is
a proposition of law, what amounts here followed. The cases to which
or does not amount to
' '
evidence it seems not to apply (such as Byrne
of negligence." Still, as there is v. Boadle, 2 H. & C. 722, and in
a question of law, some criterion Bigelow) are really cases of special
must be assumed to exist, and the liability where the burden of proof
case of Hammack v. White (11 C. B. is on the defendant.
N. S. 588, also in Bigelow, L. C. on (u) M''Cully v. Clark, ap. Bige-
Torts) contains something like an low, L. C. 559.
 SPECIAL PART. 571

2. The X. railway company's line crosses a] high road on the level. Wanlesav.
-" **
A., a foot passenger, attempts to cross the line at this place, not being -^
expressly warned by any servant of the company not to do so, and is -g-
knocked down and injured by a train under the management of the com- 12 ; cp. per
pany's servants. It is a question of fact whether, having regard to the Mellor J.,

precautions for the safety of persons crossing the railway, which may J^-f'7' ,

have been prescribed by rules under the Indian Railway Act, 1879, to ^ L R
the local circumstances, to the usual course of traffic, and to the state of 5 Q. B. at
things at the time of the accident, the injury to A. was or was not caused p. 261.
by negligence on the company's part.
3. A grass bank adjoins the X. company's railway, and is part of the

company's property. Grass cut by the company's servants on this bank

is there deposited during a dry season, and, after this grass has been

there for some time, a train passes on the line, and the grass is imme-
diately thereafter seen to be on fire. The fire spreads across a field and
burns A.'s house. A. sues the company for compensation. It is a ques-
tion of fact whether the company has been negligent (#) .

4. A. is lawfully passing under a crane belonging to B., and worked

by B.'s servants, which overhangs A.'s path. A bale of cotton which is

being lifted by the crane falls upon A. and hurts him. It is a question of
fact whether B.'s servants have been negligent in the management of the
crane (y).
5. A., while crossing a public road on foot, is run over by B.'s carriage.
A. cannot recover compensation from B. without proving facts tending to
show that B.'s driver was in fault rather than A., for drivers and
passengers are equally bound to use due care and caution in a place where
both maylawfully pass and repass (z).
6. B. goes out riding in town with a horse he has just bought. "While
he is riding at a moderate pace, the horse, notwithstanding B.'s efforts
to keep him runs away, and runs against and injures A., who is
in,

lawfully on the foot pavement. Unless B. managed the horse unskil-

fully, or knew it to be unmanageable, B. has not wronged A. (a).
7. If a person riding or driving sees, or with ordinary care would see,
that a blind man, an infant, or a cripple, is in the way, greater caution is

(x) Smith
v. Z. $ S. W. E. Co., this kind of case is the origin of
L. R. 5 C. P. 98, 6 C. P. 14, a case the statement sometimes met with
in which both Courts (C. P. and (which as a general proposition is
Ex. Ch.) held with some difficulty evidently wrong in principle) that
that there was evidence of negli- it lies on the plaintiff in the first

gence ;
cf. the later Indian case instance not only to prove negli-
of Halford v. E. I. E. Co., 14 B. L. gence on the defendant's part, but
R. 1, O. C., where the decision to disprove contributory negligence
seems to be one of fact on conflict- on his own. [See now Wakelin v.
ing evidence. L. $ S. W. E. Co., 12 App. Ca. 41,
(y) Scott v. London Dock Co., 3 H. 47.]
& C. 596, 34 L. J. Ex. 220. (a) Hammock v. White, 11 C. B.
(z)
Cotton v. Wood, 8 C. B. N. S. N. S. 588, and in Bigelow.
568, 29 L. J. C. P. 333. Probably
572 INDIAN CIVIL WRONGS BILL.

required of him than if an able-bodied adult were in the same situation

with regard to him (/>) .

Contri- 64 A person is not liable for harm of which the

butory .., (c). (1)
.,
tne negligence 01 the person injured [or
, . , ..
negli- principal cause is
ce>
of a third person], although the harm would not have

happened but for the negligence of the first-mentioned

person, or of some person for whose negligence he is
answerable.

(2) A person suffering harm whereof his own negligence

isthe principal cause, though but for the negligence of
some other person it would not have happened, is said to
be guilty of contributory negligence.
(3) A person's
negligence is deemed to be the principal
cause of harm which could immediately before its happening

[or perhaps better, "immediately before happened or it

became inevitable "] have been prevented by due care and

caution on the part of that person alone.

(4) Where by Act any person is declared to be

this

liable as for negligence, the rules of law concerning con-

tributory negligence are applicable.

Illustrations.

1. B. is driving on the wrong side of the road. A. is driving on the

same side in the opposite direction, and with ordinary care he might
keep clear of B. nevertheless A. runs into B.'s carriage.
; A. has
wronged B.
2. B. is the owner of a sailing vessel, which by reason of B.'s servants

in charge of her failing to keep a proper look out is in the way of A.'s
steamer. If the position is such that with ordinary care the steamer
might avoid a collision, and the steamer runs down the sailing vessel, A.
has wronged B., notwithstanding that if B.'s vessel had been properly
navigated the collision would not have happened (d).

(b) Illust. 7 is the concrete state- a third person," whicly^were in-

ment of sub -clause 3. I know no serted with an expression of doubt,
ease exactly in point, but I think would now have to be omitted,
this must be the law. and the law as now laid down
(<?)
This clause was drafted before should be more explicitly declared,
the decisions of the C. A. and the (d) Tuffv. Warman, 2 C. B. N. S.
House of Lords in The JBernina, 740, in Ex. Ch. 5 C. B. N. S. 573,
12 P. D, 58 Mills v. Armstrong,
; 27 L. J. C. P. 322.
13 App. Ca. 1. The words " or of
 SPECIAL PART. 573

B. leaves a bullock tethered on the highway. A., driving at an

3.

incautiously fast pace, runs over and kills the bullock. A. has wronged
B., for he might, with ordinary care, have avoided running over the
bullock, though B. was negligent in leaving it in such a place un-
watched (e) .

4. A. wrongfully places a pole across a public street. The pole is of

such a size that a rider in the street approaching at a reasonable pace
would see it in time to pull up. B., riding along the street at a furious
pace, comes against the pole and is hurt. A. has not wronged B., for B.
might have avoided harm by using ordinary care, and A. could not by
any ordinary care have prevented the consequences of B.'s negligence (/).
[5. The X. railway company is entitled to run trains over the line of
the Z. company. A train of company X. running on the Z. company's
line is thrown off the rails by an obstruction placed there by the negli-

gsnce of the Z. company's servants. M., a passenger in the train, is

injured. If the driver of the train could, with ordinary care, have seen
and stopped short of the obstruction, the X. company has, but the Zr
company has not, wronged M. (#>).]
6. a child of tender years, in the custody of B., who leads A.
A. is

across a carriage road without using ordinary care in watching for

approaching carriages. C., driving carelessly along the road, runs over
both A. and B. ;
but B. might have avoided the accident with ordinary
care. C. has not wronged A. (h).
7. A. is a child of tender years, in the custody of B., who allows A. to

go alone across the road. C., driving along the road, runs over A.
Whether B. was negligent in letting A. go alone is not material to the
question whether C. is liable to A., though it may be material whether
C. perceived, or with ordinary care would have perceived, that A. was
not capable of using the care and caution which a grown man may rea-
sonably be expected to use (i).

(e)
Dames v. Mann, 10 M. & "W. sume that the custodian will use
546. The animal in that case was ordinary care for both the child's
a donkey. safety and his own.
.
(/) Butterfald v. Forrester, 13 (i) There are many American
East, 60. decisions on points of this kind,
(g) Armstrong v. L. $ Y. E. Co., some one way and some the other ;

L. R. 10 Ex. 47, where the decision O. W. Holmes, the Common Law,

seems to be put on the ground of 128, Bigelow L. C. 729. Putting
proximate cause. [But see now aside the [now overruled] doctrine
Mills ^.Armstrong, 13 App. Ca. 1. of "imputed negligence" as ir-
The true conclusion in the case put rational, it would seem that the
seems to be that M. has a right of real question is whether the defen-
action against both companies.] dant should have known that he
(h) Waite v. N. E. R. Co., Ex. had to do with a helpless or com-
Ch. E. B. & E. 719, 28 L. J. Q. B. paratively helpless person, to whom
258 (1859). Here the proximate therefore more than ordinary care
cause of the harm is the negligence was due (clause 62, sub-clause 3,
of the child's custodian, not of the above),
other party, who is entitled to as-
 574 INDIAN CIVIL WRONGS BILL.

Collateral 65. A
person who suffers harm by the negligence of
another is not guilty of contributory negligence by reason
terial.
only that he is negligent, or is otherwise a wrongdoer, in
matter irrelevant to the harm suffered by him.

Illustration.
A. goes out shooting, and a shot fired by him accidentally wounds B.
If B. had not a right to be where he was, this may be material as
tending
to show that A. could not be reasonably expected to know that he was

likely, by firing then and there, to harm any person, but it is not material
otherwise.

Action
under
66, A person who suffers harm by
the negligence of
stress of another is not guilty of contributory negligence by reason
*
1

caused by on ^7 that, being by the other's negligence exposed to im-

another's m i ne nt danger, he does not act in the manner best fitted
negli-
gence, to avoid that danger (k).

Bight to 67. It not negligence

is
rely on
others' (a) to rely on the diligence of others unless and until
diligence, is manifest
and take negligence ;

lesser
risk to
(b) voluntarily to incur risk in order to avoid risk or
avoid inconvenience to which one exposed by the neg- is
greater (/).
ligence of another, and which at the time may
reasonably appear to be greater than the risk
voluntarily incurred.

Illustrations.

1. A. and B. are the drivers of carriages approaching one another.

Each is entitled to assume that the other will drive competently and

observe the rule of the road, but if and when it becomes manifest to A.
that B. is driving on his wrong side, or otherwise negligently, A. must

(k) The Sywell Castle, 4 P. Div. dicated by English decisions and

219 ;
other authorities collected in dicta, though I do not think it is
Marsden on Collisions at Sea, pp. anywhere laid down in a complete
6, 7. The rule is of importance in form Clayards v. De thick, 12 Q. B.
;

maritime law, and may be of im- 439 Gee v. Metrop. E. Co., L. R.

;

portance in other cases cf Wan-

;
. 8 Q. B. 161 Eobson v. N. E. R.
;

less v. N. E. R. Co., L. R. 7 H. Co., L. R. 10 Q. B. at p. 274; Lax

L. 12; cf. 3 App. Ca. 1193. v. Mayor of Darlington, 5 Ex. D.
(/)
Some such rule as this is in- 28 cf. Horace Smith, 156, 157.
;
 SPECIAL PART. 575
t

take such precautions as are reasonably fitted, having regard to B.'s

conduct, to avoid a collision.
2. A. is riding in a carriage hired by him from B. The driver pro-
vided by B. is incompetent, by reason whereof the horse runs away with
the carriage towards a deep nullah. A. jumps out of the carriage to
avoid being throwndown the nullah, and in so doing is injured. B. is
liable to under all the circumstances, A. acted reasonably in con-
A. if,

templation of an apparently greater risk and in order to avoid the

same (m) .

3. A. is the owner of horses kept in a stable. B. unlawfully digs a

trench and places rubbish in the road giving access to the stable, which
makes it difficult but not impossible to take horses out. A. attempts to
lead a horse out over the rubbish, and the horse falls into the trench and
is injured. It is a question of fact whether, under the circumstances,
the risk was one which A. might reasonably incur. If it was, B. has
wronged A., notwithstanding that A. voluntarily incurred some risk (M).

68 (0). A person who does any of the following things: Custody of

dangerous
(a) collects, keeps or uses any dangerous thing on land things.

occupied or used by him :

(b) keeps a dangerous animal :

(c) keeps or deals with loaded firearms, explosives, poison

or any other dangerous instrument or goods, or
noxious or deadly thing :

(m] In the summer of 1883 seve- cher, L. R. 3 H. L. 330, that a

ral passengers, including two Eng- man keeps dangerous things at his
lish judges, were in a precisely peril (except as regards vis majort
analogous situation in a runaway Nichols v. Marsland, 2 Ex. D. 1,
car on the Northern Pacific Rail- &c.), seems needlessly harsh. The
way. Ultimately those who did extent of the exceptions made in
not jump out came to less harm later decisions shows that it is ac-
than those who did. But surely it cepted with reluctance. It has not
could not be maintained that it was been generally followed in the
contributory negligence to jump United States, and in British India
out under the circumstances. In one important application of it has
some cases it may be prudent even been disallowed as unsuited to the
to run a very great risk, as to jump facts and conditions of Indian land
from the roof or top windows of a tenure Madras R. Co. v. Zemindar
;

house on fire. of Carvatenagaram, L. R. 1 Ind.

(n) Illustration 3 is Clayards v. App. 364. Nor is there anything
Dethick, 12 Q. B. 439. Clayards v. answering to it in Roman law. It
Dethick is disapproved by Lord therefore seems to require modifi-
Bramwell see appendix to Horace
; cation in some such way as here
Smith on Negligence, 2nd ed. Mr. proposed. This will of course not
Horace Smith thinks Clayards v. affect liability for nuisance. In a
Dethick is right notwithstanding, case short of that, the requirement
and I agree with him. of exact diligence is, one would
(0) The rule in Eylands v. Flet- think, enough.
576 INDIAN CIVIL WRONGS BILL.

is bound to take and cause to be taken all reasonably prac-

ticable care and caution to prevent harm being thereby
caused to others, and is liable as for negligence to make

compensation for any harm thereby caused, unless he proves

that all reasonably practicable care and caution were in fact
used.

Explanations. 1, Dangerous things for the purposes of

being used in the ordinary way of

this section are fire (not

domestic purposes), earth or water artificially collected in

large quantities, explosive and inflammable matters, and

any other thing likely for default of safe keeping to cause
harm to neighbouring persons or property.

2. A dangerous animal for the purposes of this section

is

(a) any animal of a kind accustomed to do mischief :

(b) any animal of whatever kind which the person

keeping it knows to be fierce, mischievous or
vicious.

3. A person who deals with a dangerous thing and is

in good faith ignorant of its dangerous character is not

subject to the liability declared by this section (p).

Illustrations.

G. W. 1. A. is the owner of an embankment constructed by authority of the

fty-
/"f
f
Government. Part of this embankment is carried away in a storm,
ana a v. y-7

wjiere|3 y 55 s adjacent land and crops are damaged. If A. has in fact

Moo. P. C. been diligent in constructing and maintaining the embankment in such a
N. S. 101, manner as to be capable of resisting all such violence of weather as in that
and cases
4-
Vj c^j\f^
p ar^ o f the country may be expected to occur, or if the storm was so
, -i
extraordinary that no practicable precaution could have guarded against
its effects, then A. has not wronged B. If the storm was such as might
have been reasonably provided against, and if A. has not been so diligent

as aforesaid (which may be inferred as a fact from the failure of the

embankment in the absence of proof that the best known precautions
were used), then A. has wronged B.
2. Sparks escape from a railway engine used by the X. railway com-

(p) As to poison, fire, explosives and dangerous animals, cf. the

Penal Code, ss. 281, 285, 286, 289.
 SPECIAL PART. -~>77

pany on their line, and set fire to A.'s corn in an adjoining field. The
X. company must make compensation to A., unless they prove that the
best known
practicable precautions were used to prevent the escape of
sparks from the engines (#).
3. A. burns weeds on his own land.
Sparks from the fire are carried
into B.'s growing crop and set fire to it. A. must make compensation to
B., unless he proves that the fire was carried by a sudden and extraordi-
nary wind, or in some other unusual manner which he could not, by
reasonable and practicable precaution, have prevented.
4. A., a zamindsir, maintains an ancient tank on his zamindari for the

benefit of agriculture. An extraordinary rainfall causes the tank to

burst, and the water escaped therefrom carries away a building belonging
to B. If A. has been diligent in maintaining the tank, and making pro-
vision against any ordinary overflow of water, A. has not wronged B. (r).
5. A. sends a parcel containing a detonating mixture to a
railway
station, to be carried as goods by railway company, without informing
the company's servants of the nature of the contents. While B., a ser-
vant of the company, is handling the box for the purpose of dispatching
it by train, and with care sufficient for the safe and proper handling of

ordinary goods, the contents explode and injure B. There is nothing to

show the specific cause of the explosion. A. has wronged B. The ex-
plosion alsodamages a cart of C.'s, which has brought other goods to be
dispatched by train. A. has, but the company has not, wronged C. (*).
6. A., having left a loaded gun in his house, sends B., a young person

inexperienced in handling firearms, to fetch it. A. tells B. that the gun

is loaded, and directs him to handle it carefully. B. fetches the gun, and
on his way back points it in sport at C. The gun goes off, and wounds
C. A. has wronged C. (t).

(q}&eeVaughanv.TaffValeR.Co., of Carvatenagaram, L. R. 1 Ind.

5 H. & N. 679 ;
Fremantle v. L. $ App. 364.
N. W. R. Co., 10 C. B. N. S. 89. (*) Lyett v. Ganga Dai, I. L. R.
Such a case as Jones v. Festiniog R. 1 All. 60 ; cp. Farrant v. Barnes,
Co. L. R. 3 Q. B. 733, where the 11 C. B. N. S. 553. It is for the
use of locomotive engines not being plaintiff to prove want of notice ;
especially authorized, it was held see Williams v. East India Co., 3
that the company used them at its East at p. 199, where a somewhat
peril, could, I suppose, hardly artificial reason is given. It seems
occur in British India. If it did, enough to say that the want of
and if the clause now submitted notice is an essential part of the
had become law, the decision would plaintiff's case ; the duty is, not to
be the other way, unless Act IV. abstain from sending dangerous
of 1879, s. 4, implies that using goods, but to give sufficient warri-
locomotives without the sanction ing if you do. As to the non-
of the Governor General in Council liability of a person innocently
is absolutely unlawful. As to the dealing with dangerous things of
use of fire for agricultural purposes, whose true character he has not
such as burning weeds, see Tttrber- notice, see the Nitro- Glycerine case,
vil v. Stamp, 1 Salk. 13, and 1 Ld. Sup. Ct. U. S., 15 Wall. 525.
Raym. and D. 9. 2, ad 1. Aquil. 30, (t)
Dixon v. Bell, 5 M. & S. 198,
3. and Bigelow, L. C. 568, which goes
(r) Madras R. Co. v. Zam'indar even further.
P. P P
578 INDIAN CIVIL WRONGS BILL.

7. A. is a dealer in drugs. By the negligence of A.'s servant a jar of

extract of belladonna is labelled as extract of dandelion, and sold on A.'s
behalf to B., a retail druggist. B., in good faith, resells part of it as
extract of dandelion to C., a customer, who by taking it is made dange-

rously ill. A. has wronged C. (u] .

Liability
of occu-
69. (1) A person possessed of
piers of (a) any immoveable property :

property.
(b) any building or structure intended for human occu-

pation or use :
(c) Any carriage or vessel intended for the conveyance
of human beings, or of goods which are to be
handled in that carriage or vessel (x) :

is in this and the next following section called an occupier.

(2) An occupier must keep the property occupied by him
in reasonably safe condition and repair as regards

(a) persons using that property as of right :

(b) persons being or passing near that property as of

right :

and is liable as for negligence to any such person who is

injured by want of such condition and repair (y).

(3) A person who has delivered out of his possession to

be employed for the purposes of his business any such

carriage or vessel as in this section mentioned continues
responsible during such employment for any want of
reasonably safe condition and repair which existed at the
time of his parting with the possession.
Explanation. The existence of a defect which the usual
care and competent persons could not have dis-
skill of

covered or prevented (in this section called a latent defect)

(M) Thomas v. Winchester, 6N. Y. gested by Elliot v. Hall, 15 Q. B.

397, Bigelow, L. C. 602. See this D. 315.
case discussed p. 439, above. (y) Most of the previous authori-
(x} See Foulkes v. Metrop. Dist. ties are collected and discussed in
R. Co., 6 C. P. D. 157, especially Indermaur v. Dames, L. R. 1 C. P.
the judgment of Thesiger L. J. 274 (in Ex. Ch. 2 C. P. 311).
The words now inserted are sug-
 SPECIAL PART. 579

isnot a want of reasonably safe condition and repair, but

the burden of proof is on the occupier to show that the
defect which caused an injury was latent.

(4) Safe condition includes careful management.

(5) Persons using property as of right include

(a) servants (z) or other persons being or coming thereon

in performance of a contract with the occupier ;

(b) persons being or coming thereon by the occupier's

invitation or with his consent on any lawful
business.

Illustrations.
1. A. is a merchant in Bombay. His office is approached
by a passage,
forming part of the premises occupied by him, in which there is a trap-
door. At a time when the trapdoor is left open, and not properly guarded
or lighted, B., a customer of A., comes to the office on business, and falls

through the trapdoor and is injured. A. has wronged B. (a).

2. A. digs a pit on his own land close to a highway, and does not fence

it off, light the place after dark, or take

any other precaution for the
safety of persons using the highway. B., lawfully walking on the high-
way after dark, falls into the pit and is injured. A. has wronged B. (b).
3. A., the owner of a road subject to rights of way, puts a heap of

building materials on the road, and leaves them at night unwatched and
unlighted. B., a person entitled to use the road, drives along the road
after dark, his carriage runs against the heap, and his horse and carriage
are damaged. A. has wronged B. (c).
4 . The X. company are possessed of a dock, in which for payment from
shipowners they provide accommodation for ships, including gangways
between ships in dock and the shore, and staging for the use of workmen
employed about ships in the dock. A. is a person having lawful busi-
ness on one of the ships in the dock to reach the ship he walks on one
;

of the gangways provided by the X. company. The X. company's ser-

vants having placed the gangway in an unsafe position, it gives way
under A., and he falls into the water and is injured. The X. company
has wronged A. B. is a workman employed to paint a ship in the dock.

(z) English common law authori- to be so.

ties incline to the view that a ser- Chapman v. Rothwell, E. B. &
(a)
vant injured by the defective state E. 168, 27 L. J. Q. B. 315 (treated
of the place where Tie is employed by the Court as a very plain case) .

can hold the master liable only for (b) Barnes v. Ward, 9 C. B. 392,
personal negligence. I am not sure 19 L. J. C. P. 195.
that even the Employers' Liability (c) Corby v. Hill, 4 C. B, N. S.
Act puts him on the same footing 556, 27 L. J. C, P. 318.
as a customer, but I think he ought

p P 2
5SO INDIAN CIVII, WRONGS BILL.

He stands for that purpose on a staging provided by the X. company,

which is in fact unfit for such use
by the negligence of the X. company's
servants in not fitting it with ropes of proper strength. One of the ropes
breaks, and B. falls into the dock and is hurt. The X. company has
wronged B. (d).
5. A. is possessed of a bridge crossing a public road. As B. is pass-
ing along the road under the bridge, a brick falls upon him from the
brickwork of the bridge and injures him. There is no specific proof of
the amount of care used in making or maintaining the bridge. Unless
A. proves that the fall of the brick was due to some cause consistent with
due care having been used in the maintenance of the bridge, A. has
wronged B. (e).
6. A. is possessed of a lamp which is affixed to the wall of his house

and projects over a public street. The fastenings of the lamp, being out
of repair, give way, and the lamp falls on B., a foot-passenger in the
street, and injures him. A. must make compensation to B., even if A.
has employed a person whom he reasonably believed to be competent to
keep the lamp in repair (/).

Position of 70. Where

a person uses or comes on any property with
^ne occupier's permission, but not as of right, the occupier
using pre-
mises.
o that property i s liable for harm suffered by the first-
mentioned person from a defect in the condition or repair
of that property only if the defect is such as to constitute
to the knowledge of the occupier a danger not discoverable
by a person using ordinary care (g).

(d} Smith v. London St. Katha- what respect, if any, a "barelicen-

rine Docks Co., L. R. 3 C. P. 326. see" isbetter off than a trespasser,
Cf. Francis v. Cockrell, L. R. 5 Q. B. except that he might, once know-
501 (Ex. Ch.), where, however, the ing the occupier to allow his pre-
duty was also put on the ground of sence, be entitled to regard as
contract; Heaven v. Pender, 11 Q. "invitation" this or that indication
B. Div. 503. which could not be presumed to be
(e) Kearney
v. L. B. $ S. C. R. meant for trespassers. And the
Co., Ex. Ch. L. R. 6 Q. B. 759; position of a visitor or guest (in the
cp. Byrne v. Boodle, 2 H. & C. 722, ordinary sense, not a paying guest
33L.J.Ex. 13,andinBigelow.L.C., at an inn) is not quite clear. It
where it is said that "it is the duty does not seem needful, however, to
of persons who keep barrels in a enter on these questions. The case
warehouse to take care that they usually cited for the relation of a
do not roll out, " and there was no host and (gratuitous) guest 18
positive evidence that the barrel Southcote\. Stanley, 1 H. &N. 247,
was being handled by servants of 25 L. J. Ex. 339, which, however,
the defendant, or being handled is not altogether
satisfactory. The
carelessly. line of reasoning seems to be that a
(/) Tarry v. Ashton, 1 Q. B. D. guest voluntarily puts himself in
314. the same plight as a member of the
(y) It is rather difficult to say in family, and as such must take
 SPECIAL PART.

Illustrations.

1. A. is possessed of land on which there is an open stone

quarry.
There is no right of way over the land, but people habitually pass and
repass over it without interference from A. B., crossing the land after
1

dark, falls into the quarry and is hurt. A. has not wronged B. (A).
2. A. is possessed of a yard in which machinery is in motion, and

permits B. to use a path across it for B.'s own convenience. If the

danger of approaching the machinery is apparent to a person using
ordinary care, A. is not under any duty towards B. to have the machinery
fenced or guarded (i).

3. A. driving his carriage, and offers B. a seat in it. B. enters the

is

carriage, and shortly afterwards the carriage is upset by the breaking of

a bolt, and B. is thrown out and hurt. Unless A. knew the carriage to
be in an unsafe condition, A. has not wronged B. (&).

CHAPTER IX.

OF DAMAGES FOR CIVIL WRONGS (/).

71. A person who has been wronged is entitled to recover Measure

from the wrongdoer as damages such a sum as in the es in
g
of the Court will him for the &eneral -

judgment fairly compensate

harm or loss he has sustained.

72. Where specific property has been wrongfully dealt Damages

with, the Court may award damages equivalent to the to'speSfic
r ertv
extent to which the value of that property is diminished, P P
-

but is not bound to award as compensation the cost of

replacing the property in its former condition.

things as he finds them. It is also 736, 31 L. J. Ex. 201, a rather

attempted to bring this under the strong case, but for that very rea-
same principle as the doctrine of son a good illustration.
" common
employment," then in (k) Moffatt v. Bateman, L. K. 3
great favour with the Court of P. C. 115.
Exchequer. [See p. 450 above.] (I)
These clauses on damages are
(ft)
Hounsell v. Smyth, 7 C. B. N. a mere sketch but it may be a
;

S. 731, 29 L. J. C. P. 203. question whether anything more

(i) Bokh
v. Smith, 7 H. & N. elaborate is desirable.
582 INDIAN CIVIL WRONGS BILL.

Illustration.

A. wrongfully digs out and carries away a quantity of earth from Z.'s
land. Z. must make compensation to A., but A. cannot claim to fix the

damages by what would be the cost of replacing the earth dug out (m).

Aggrava- 73. In awarding damages for wrongs the Court may

mitigation have regard to the knowledge, intention and conduct of

either or k^h parties, and may increase or diminish the

amount of its award accordingly.

Illustrations.

1. A. has defamed Z. A. may show in mitigation of damages that

when he made the defamatory statement he believed on reasonable
grounds that it was true.
2. A. has negligently pulled down a building on his own land to the

damage of Z.'s adjacent land. Z. may show in aggravation of damages

that A. wished to disturb Z. in his occupation and purposely caused the
work to be done in a reckless manner (n) .

(in) Whitham v. Kershatv, 16 Q. (n) Emblen v. Myers, 6 H. & N.

B. Div. 613. 54, 30 L. J. Ex. 71.

SCHEDULE.
 SCHEDULE. 583

THE SCHEDULE.
Acts of the Governor General in Council.

Year and Chapter. Title or Short Title. Extent of Repeal.

XII. of 1855 An Act to enable execu- The whole, as regards

tors, administrators, or causes of action within
representatives to sue this Act.
and be sued for certain
wrongs.

XIII. of 1855.... An Act to provide com- The like.

pensation to families for
loss occasioned by the
death of a person caused
by actionable wrong.
XVIII. of 1855 .. An Act for the protection The like.
of judicial officers.

XV. of 1877 . The Indian Limitation The descriptions of suits

Act, 1877. numbered respectively
20, 21, and 33 in the
Second Schedule are to
be read, as regards causes
of action within this Act,
as if " the Civil Wrongs
Act, 18 ," were substi-
tuted for the references
to Acts XII. and XIII.
of 1855, in those descrip-
tions respectively con-
tained.
 INDEX.

%* The italic letters refer to foot-notes; thus 438 * means note on

page 438.

ABATEMENT :

of nuisance, 361.
whether applicable to nuisance by omission, 362.
unnecessary damage must be avoided in, 363.
ancient process for, 364.

difficulty of, no excuse, 369 sqq.

ACCIDENT :

inevitable, damage caused by, 119.

inevitable, 119133.
American law as to, 120, 122, 123127.
inevitable, English authorities as to, 127.
inevitable, cases of, distinguished from those of voluntary risk, 149.
liability for, in special cases, 423.
non-liability for, in performance of duty, 429.
negligence when presumed from, 431.

ACT OF GOD :
non-liability for, 427.

ACT OF PABLIAMENT :

when remedy under exclusive, 176.

damage must be within mischief of, 177.

ACTION:
forms of, 2, 13, 14.
causes of, in contract or tort, 3, 5.

on the case, 13, 14.

convicted felons and alien enemies cannot have, 49.
persona], effect of a party's death on, 54.
survival of cause of personal, exception in early English law, 66.
for injury per quod servitium amisit, 57, 205, 207.
for injury per quod consortium amisit, 205.
for wrongs to property, when it survives for or against executors, 69.
cause of, under Lord Campbell's Act, 61.

against viceroy or colonial governor, 100.

586 INDEX.

ACTION continued.

right of, for damage in execution of authorized works, 114, 119.

cause of, when it arises, 167.
single or sever able, 173.
for breach of statutory duty, 176.

against joint wrong -doers, exhausted by judgment against any,

178.
when wrong amounts to felony, 180.
local or transitory, 184.
malicious bringing of, whether it can be a tort, 278.

early theory of causes of, 457.

on the case, development of, 458.
causes of, their modern classification, 459.
form of, duty not varied by, 464.
concurrent causes of, in contract and tort, 467.
concurrent causes against different parties, 471.
of,

history of forms of, 497.

real, when abolished, 2.
former writ of right, 13.

replaced by action of ejectment, 162 a.

ACTS: voluntary, liability for accidental consequences of, 122, 125, 131.

ACTS OF STATE : 98.

ADMIEALTY: rule of, where both ships in fault, 412.

AGENT :

implied warranty of authority by, 58 /.

liability of principal for authorized or ratified acts of, 68.
when entitled to indemnity, 179.

liability of person assuming authority as, 262, 263.

misrepresentations by, 270.
false representationsmade by or through, 270, 271.
how far corporation can be liable for deceit of, 272.

implied warranty of authority of, 470.

AGBEEMENT :
unlawful, cause of action connected with, 161.

AIE: no specific right to access of, 357.

ALIEN ENEMY : cannot sue, 49.

AMENDMENT : of statement of claim, 169 s.

AMERICAN LAW :

as to liability of corporations, 63.

as to want of ordinary care, 40 /.
gives compensation for damage by death, 64.
as to liability of master for acts of servant, 70.
doctrine of a common employment in, 89.
 INDEX. 587

AMEEIOAN LAW continued.

employers' liability in, 95.

as to judicial acts, corresponds with English, 105.
as to inevitable accident being no ground of liability, 120 aqq.
as to deceit, 256.
on accidents during Sunday travelling, 161.
as to negligence, 383 b, 395.
as to contributory negligence, 414 ,
418.
as to slander of title, 274, 275.
as to malicious wrongs, 282.
as to waste, 301, 302 q.

Lumley v. Gye followed in, 483.

as to parol licences, 326.
as to causing breach of contract, 484.
as to rights of receiver of telegram, 485.

ANIMALS:
killing of, in defence of property, 156, ,
t.

trespasses by, 157.

mischievous, responsibility for, 433.

ABBITEATION : how death of party before award affects cause of action,

55.

AEBITEATOE : not liable for errors in judgment, 105.

ARREST : when justified, 199.

And see IMPRISONMENT.

ASPORTATION: 298.

ASSAULT :

when not justified by consent, 144.

acts for benefit of person who cannot consent, 154.
what is, 192.
acts notamounting to, 195.
words cannot be, 195.
justification by consent, 195.
self-defence, 155, 196.
when action barred by summary process, 197.

ASSETS :
following property or its value into wrong-doer's, 64.

ASSTJMPSIT :

action of, its relation to negligence, 375.

development of, from general action on the case, 461.

implied, where tort waived, 470.

AVERAGE :
general law of, 154.
588 INDEX.

BAILEE :

justification of, in re-delivery to bailor, 310.

excessive acts of, when conversion, 311.
bailment over by, 318.

BALLOON :
trespass by, 34 u, 296.

BANKRUPTCY :

no duty to prosecute upon trustee in, 182.

debt discharged by, in American law, 187.
imputation of, to tradesman, actionable, 223.
malicious proceedings in, 279.

BAREISTEE :

revising, powers of, 101.

slander of, 222.
And see COUNSEL.

B ATTEST: what is, 191.

And see ASSAULT.
BBEAKINO: DOOES: when justified, 332.

BUILDINGS:
duty of keeping in safe condition, 442.
falling into street, 449.

BUSINESS :

slander on, injunction to restrain, 171.

slander of a man in the way of his, 221 sqq.
words indirectly causing damage in, 223.

CAIENS'S ACT (LOED) 365 /.

CAMPBELL'S ACT (LOED), 9 & 10 Viet. c. 93 :

what may recover under, 61 p.

relatives
claim under, does not lie in Admiralty jurisdiction, 61 p.
construction of, 61.
what damages may be recovered under, 61.
cause of action under, not cumulative, 63.

CAMPBELL'S ACT (LOED), 6 & 7 Viet. c. 96 :

as to pleading apology, &c., in action for defamation, 246.

CANAL :
escape of water from, 429.

CAPACITY :
personal, with respect to torts, 48 sqq.

CAEEIAOE :
responsibilities of owner of, 446, 448, 455.

CAEEIEE :
common, duty of, 463, 473.

CASE : action on the, development of, 458.

 INDEX. 589

CATTLE :

trespass by, 297.

liability for trespass by, 432.
bitten by dog, no scienter need be proved, 434.

right of owners of, to safe condition of market-place, 447.

CAUSE :

immediate or proximate, 26, 28, 36.

reasonable and probable, for imprisonment, 202.
proximate, in law of negligence, 395, 400, 403 sqq.
of action. See ACTION.

CAUTIOX: :
consummate, required with dangerous instrument, 45.
CHILDREN : when deprived of remedy by contributory negligence of
parent, &c., 409.

CIVIL PROCEEDINGS : malicious bringing of, whether a tort, 278.

CLERGYMAN :
complaint to, regarding curate, 241.

CLUB:
quasi- judicial power of committee, 109.
cases on expulsion from, 110 s, t.
chance of being elected to, no legal loss, 219.

CODIFICATION : of law of civil wrongs in India, 517.

COLLEGE :
quasi- judicial powers of, 109.

COLLISION : between ships, 412.

And see NEGLIGENCE, RAILWAY.

COLONIAL GOVEBNMENT : liable for management of public harbour, 54.

COLONIAL LEGISLATUBE : control of, over its own members, 108 p.

COLONY :
governor of, liable in courts of colony for debt, 101.

COMITY : rule of, as to suits affecting foreign sovereigns and states, 101.

COMMENT:
fair, not actionable, 230.
what is open to, 232.

COMMON : no distress by commoners inter se t 334.

" COMMON EMPLOYMENT: "

the doctrine of, 89.
what is, 91.
relativerank of servants immaterial, 91.
no defence for master under Employers' Liability Act, 506 /.

COMMON RIGHTS :
immunity in exercise of, 133.
590 INDEX.

COMMONER :

any one can sue for injury, 356.

may pull down house on common after notice, 361.

may pull down fence without notice, 362.

COMMUNICATION: what is privileged, 237, 239, 241.

COMPANY :

fraud of directors, 85.

remedy of shareholder against, for fraud, 85.
removal of director, 110 s.
false statements in prospectus of, 252, 264.

representations in prospectus of, 266.

malicious proceedings to wind up, 279.

COMPENSATION :
statutory, for damage done by authorized works, 114.

COMPETITION :

in business or trade, no wrong, 133, 136.

as to malice in connection with, where acts lawful, 141 z, a.
combination in trade to exclusion of, may not be wrong, 283.

CONSENT : effect of, in justifying force, 143, 148.

And see LICENCE.

CONSEQUENCES :

liability for, 26.

near or remote, 27, 32, 45.
" natural and
probable," 28, 31, 36, 40, 223.

liability of wilful wrong-doer for, 31, 43.

" and natural," 481.
supposed limitation of liability to legal

CONSPIEACY :

whether a substantive wrong, 281.

how far trade -combination to exclusion of other traders is a, 283.

CONSTABLE :

must produce warrant, 106.

is liable for mistake of fact, 107.

statutory protection of, 106, 189.

powers of, to arrest on suspicion, 199.

protection of, in cases of forcible entry, 333.

" CONSUMMATE CAEE " :

cannot always avoid accident, 120.

requirement of, 126.

CONTAGIOUS DISEASE :
imputation of, 221.

CONTRACT :

actions of, as opposed to tort, 2, 5, 15.

right of action upon, not extended by changing form, 49.

 INDKX. 591

CONTRACT continued.
law complicated with that of tort in province of deceit, 248.
of,
malicious interference with, 285.
effect of, on title to property, 288.
overlaps with tort in law of negligence, 375.
effect of, on negligence, 383.
relations of, to tort, 457 sqq.

negligence in performing, how far a tort, 462, 465.

breach of duty founded on, 464.
rights arising from, not affected by suing in case, 465.
where action of tort lies notwithstanding existence of doubt as to,
467.

implied in law, as alternative of tort, 469.

with one party, compatible with actionable breach of duty in same
matter by another, 471.
breach of, whether third party can sue for an act which is, 474.
with servant, effect of, on master's rights, 474.
stranger to, cannot sue for damage consequential on mere breach
of, 477.
breach of, concurring with delict in Roman law, 478.

causing breach of, under what conditions a tort, 479.

existence or non-existence of, as affecting position of third parties,
490.
measure of damages in, as compared with tort, 491.
to marry, exceptional features of, 493.

CONTRACTOR :

independent, responsibility of occupier for acts and defaults of, 442.

independent, duties extending to acts of, 446 /, 452.

CONTRIBUTION : between wrong-doers, 178.

CONTRIBUTORY NEGLIGENCE :

not punishable as a positive wrong, 160.

plaintiff is not bound to negative,
383.
what it is, 395.

proper direction to jury, 396.

rule of, founded in public utility, 397.
true ground of, "proximate" or "decisive" cause, 401, 403
405, 407.
self-created disability to avoid consequences of another's negli-

gence, 401.
illustrations, 402.
as to damages in, 404, 405.
of third persons, effect of, 405, 407, 482.

negligent acts simultaneous or successive, 405.

doctrine of
" identification" now not law, 406, 411.
accidents to children in custody of adult or unattended, 409, 410.
592 INDEX.

CONTBIBUTOBY NEGLIGENCE Continued.

unknown Admiralty jurisdiction. 412.
in

separation of law and fact in United States, 418.

in Roman law, 514.
And see NEGLIGENCE.
CONVERSION :

what is, 303.

distinguished from injury to reversionary interest, 304.

meaning of, extended, 305.
acts in good faith may be, 305.
refusal as evidence of, 306.
mere claim of title or collateral breach of contract
is not, 307, 308.

qu. as to dealings under apparent authority, 308, 309.

by bailees, 310.
distinction between varieties of, and cases of injury without con-
version, 313, 314.
by estoppel, 314.

CONVICT : cannot sue, 49.

COPYBIGHT :
principle of slander of title extended to, 274.

COEPOEATION :

liability of, for wrongs, 53.

responsibility for performance of public duties, 53.
liable for trespass, 53 p.

may be liable for fraud, &c., of its agents, 84 p, 85.

liability of, for fraud of agent, 272.
whether action for malicious prosecution will lie against, 278.
cannot commit maintenance, semble, 286 /.

COSTS :

relation of, to damages, 166 I.

present procedure as to, 166 n.

presumed to be indemnity to successful defendant, 278.

COUNSEL :
immunity of words spoken by, 236.

COUNTY COUET :
statutory distinction of actions in, 466, 504.

COUNTY COUET JUDGE :

powers of, 103.

COUET :

privilege of statements made in, 236.

control of, over jury, 246.

COUET AND JUEY :

functions of,in cases of negligence, 385, 386.

usual and proper direction as to contributory negligence, 396.
 INDEX. 593

COUBT- MARTIAL :

protection of members of, 104.

whether action lies for bringing one before, without probable
cause, 107.

CHIME : oral imputation of, when actionable, 219.

CRIMINAL CONVERSATION : former action of, 206.

CRIMINAL LAW :

attempted personal offences, 29 m.

what is immediate cause of death in, 36.

individuals bound to enforce, 105, 182 r.

forfeiture of deodand, 121, 122.

as to self-defence, 155.
conversion necessary for larceny, 304.
distinction of receiving from theft in, 319.
as to asportation, 332.

prosecution for public nuisance, 344 sqq.

CRITICISM: limits of allowable, 230, 232.

CULPA :

equivalence of culpa lata to dolus, 263, 378.

licensor not liable to gratuitous licensee for, 455.

CUSTODY: distinguished from possession, 291.

CUSTOM : loss of, no right of action for, 136, 139.

CUSTOM OF THE REALM :

meaning of, 464, 466.

CUSTOMEE: right of, to safe condition of buildings, &c., 444.

DAMAGE :

relation of, to wrongful act, 19.

for "nervous or mental shock," whether too remote, 45.
unavoidable, no action for, 115.
effect of, as regards limitation, 188.
special, in law of slander, what, 217.
special, involves definite temporal loss, 218.
actual, unnecessary to constitute trespass, 295.
particular, in action for public nuisance, 346.
not when
private right infringed, 356.
special, procuring breach of contract actionable only with, 480, 481.
remoteness of, 27, 35 sqq., 481.

DAMAGES :

measure of, 27.

nominal, ordinary, or exemplary, 165.
carrying costs, 166 I, m, n.
P. Q Q
594 INDEX.

DAMAGES continued.

nominal, as test of absolute right, 166.

when damage gist of action, 167.
ordinary, measure of, 169.
exemplary, 170.
for false imprisonment, 170.

mitigated, 172.
only once given for same cause of action, 173.
for false representation, 175.
measure of, in action for inducing plaintiff by false statements to
take shares in company, 175 s.
in actions for seduction, 207.

mitigation of, by apology, in action for slander or libel, 246.

in action for trover, 307.
relation of costs to, 341.
for nuisance, 364.
to what date assessed, 365, 369.
in contributory negligence, 404, 405.
measure of, in contract and tort, 491.
for breach of promise of marriage, 172, 493.

DAMNUM SINE INITJRIA, 22, 134.

DANGER :

going to, 149.

imminent, duty of person repelling, 156, 157.
position of, one knowing, 160.
diligence proportioned to, 393.
concealed, to bare licensee, 453.
licensor, liable for, 454.

DANGEROUS THINGS : strict responsibility in dealing with, 421, 423, 434,

437, 440, 441.

DEATH:
of party, effect of, on rights of action, 54.
of human being, said to be never cause of action at common law,
57.

DECEIT :

action of, damage must be shown, 168.

may give innocent agent claim for indemnity, 179/.

what, 247.
conditions of right to sue for, 250.
must include falsehood in fact, 251.

knowledge of untruth or culpable ignorance, 251.

no cause of action without both fraud and actual damage, 251.
may include misstatement of law, 253.
by garbling, 254.
 INDEX. 595

DECEIT continued.
statement believed by maker at the time is not, 254, 255.
ground of belief looked to as test of its reality, 255.
American law as to, 256.
effect of aubsequent discovery of untruth, 257.
reckless assertion, 259.
breach of special duty, 259.
intention as element of, 261.

by public representations, 262, 263.

as regards prospectus of new company, 264.
statement not relied on is not, 265.
effect of plaintiff's means of knowledge, 265.
as to reliance on ambiguous statements, 267.
effect of misrepresentation by or through agent, 270273.
action of, against falsifier of telegram, 484 sqq.

DEFAMATION :

damages in action of, 166.

special damage, 168.
gross, damages for, 171.
in general, 214 sqq.

spiritual, 220 s.

of one in his business, 221, 223.

in what sense "malicious," 224.

"publication" of, 224.

construction of words as to defamatory meaning, 227.
by repetition, 229.
exception of fair comment, 230.
justified by truth of matter, 233.
immunity of speech in Parliament, 235.
words used by judges and others in judicial proceed-
ings, 236.
naval and military, judicial or official proceedings, 237.
privileged communications generally, 237.
exception of "express malice," 238.
what are privileged occasions, 239.

privilege of fair reports, 242.

newspaper reports of public meetings, 244.
And see LIBEL, SLANDEB.
DEFECT :

latent, non-responsibility for, 448.

in structure, responsibility of occupier for, 449.

DELICTS :

Roman law of, 16 18.

terminology of, Austin on, 18s.

QQ2
596 INDEX.

DETINUE, 13, 15, 294.

nature of writ of, 299.

DIGEST : of Justinian, ad legem Aquiliam, 17, 514. And see Lex Aqullia.

DILIGENCE :

liability even when utmost used, 11 .

amount required by law, 24, 25.

of,

general standard of, 373, 378.

includes competent skill where required, 377, 384.
due, varies as apparent risk, 393.

DISABILITY :
suspending statute of limitation, 188.

DISCRETION : where given by legislature must be exercised with regard

to other rights, 117.

DISTRESS :

in general, 334.

damage feasant, 334, 340.

conditions of, 335.
for rent, how limited, 339 n.
liability for, 340.
excess in distress damage feasant, effect of, 340.

DOCKS : owner of, answerable for safety of appliances, 445.

DOG:
whether owner liable for mere trespass of, 433.

liability for vice of, 433.

statutory protection against, 434 t.

DOG-SPEAES : authorities on injuries by, 156 I.

DOLUS, 17, 55, 247.

DOMINUS PRO TEMPORE, 73.

DRIVER: duty of ,
152.

DRIVERS :
negligence of both, 406.

DRUNKEN MAN : authorized restraint of, 112.

DUEL :
always unlawful, 145.

DUTIES :

absolute, imposed by policy of law, 7, 19.

relation of legal to moral, 9, 11.
to one's neighbour, expanded in law of torts, 12.

DUTY:
to one's neighbour, nowhere broadly stated, 21.

specific legal acts in breach of, 23.

 INDEX. 597

DUTY continued.
of respecting property, 24.
of diligence, 24.
of warning, knowledge of risk as opposed to, 150.
statutory, remedy for breach of, 176.
breach of, in course of employment, action for, 462.

EASEMENT :

disturbance of, analogous to trespass, 320, 321.

licence cannot confer, 323, 326.
of light, 357.

EDITOR :
admitting publication, not bound to disclose actual author, 227.

ELECTION :

to sue in contract or tort for misfeasance, 462.

doctrine of, seems not applicable when duties are distinct in sub-
stance, 476.

EMPLOYEE : when answerable as master, 72, 73.

EMPLOYEES' LIABILITY ACT, 87, 93.

text of, 505 sqq.
as regards " volenti nonfit injuria," 151.

EMPLOYMENT :

what is course of, 75.

public, of carriers and innkeepers, 463.

ENTEY:
by relation, 320.
when justified, 328, 329.
fresh, on trespasser, 330.
to take distress, 335.
of necessity, 336.

EQUITY :

remedies formerly peculiar to, 162.

former concurrent jurisdiction of, in cases of deceit, 175.

EEEOE :
clerical, responsibility for, 223, 261, 488.

EVIDENCE :

of malice, 245.
of conversion, 306.
of negligence, 380.

question whether there is any for court : inference from admitted

evidence for jury, 387.
of contributory negligence, 398.

EXECUTION : of process, justification of trespass in, 332.

598 INDEX.

EXECUTOBS :

statutory rights of action by, for wrongs to testator's property, 59.

liability of, for wrongs of testator, 59.
to restore property or its value, 64.
whether not bound to prosecute for felony before bringing civil

action, 182.
cannot sue for personal injuries to testator, even on a contract, 494.

EXPLOSIVES :

liability for improper dealing with, 123, 438.

liability for sending without notice, 438.

FACTORS ACTS:
validity of dealings under, 289.
good title acquired under, 490.
FACULTIES :
ordinary use of, presumed, 393, 394.
FALSE IMPRISONMENT :

what is, 197.

distinguished from malicious prosecution, 200.

prosecutor or officer answerable for, 200.

FELONY :

" " of
merger trespass in, 180.
arrest for, justification of, 199.

imputation of, when libellous, 219, 221, 234.

FENCE :

when trespass for defective, 335.

falling in neighbour's land, 427.

FERRY :

refusal to carry passengers by, 307.

franchise of, 321 q.
nuisance to, 360.

FINE : in trespass under old law, 3.

FIRE:
as justification for trespass, 336 sqq.

negligence as to, 378.

escape of, from railway engines, 392.
safe keeping of, 435.

responsibility for carrying, 436.

FIRE-ARMS :

accidents with, 126, 128.

consummate caution required in dealing with, 437.

FOOTPATH : diversion of, creates duty to warn passengers, 449.

 INDEX. 599

FOBCIBLE ENTRY :

statutes against, 328.

with good title, whether civilly wrongful, 330.
Fox-HUNTiNa: trespass in, not justified, 338.

FRANCE (law of) :

Consefl d'Etat inquires into " acts of state," 102.

rule of, of five years' prescription, 187.

FBANCHISE : malicious interference with exercise of, 285.

FRAUD:
of agent or servant, 84.
of partners, 86.

compensation for, in equity, formerly by way of restitution, 175.

concealed, effect of, on period of limitation, 189.
equitable jurisdiction founded on, 249.
"constructive," 249.
"legal," 250.
of agents, 250.
relation of, to infringement of trade-marks, &c., 276.
effect of, on transfer of property or possession, 288, 289.

FEOST :
damage brought about by extraordinary, 41.

GAS :
escape of, 438. -

GOODWILL :
protection of privileges analogous to, 276.

GOVEENOE: colonial, actions against, 101.

GEANT:
distinguished from licence, 323.
but may be inseparably connected with licence, 324.
distinction of licence from, 326.

GUARANTY :
misrepresentations amounting to, 268.

GUEST :
gratuitous, is mere licensee in law, 455.

HIGHWAY :

justification for deviating from, 336.

nuisances by obstruction of, 345, 346, 347, 348, 349.
cattle straying off, 433.
traction or steam engine on, 436.

rights of persons using, to safe condition of adjacent property,

449, 451.

HORSE:
injuries caused by, 40.
trespass by, 432.
600 INDEX.

HUSBAND AND WIFE :

actions by and against, 49.

action of personal tort between, does not lie, 50.
husband may not now beat wife, 112 a.
action for taking or enticing away wife, 203, 205.
assault or crim. con., 206.
loss of consortium between, is special damage, 219.
libel on husband by letter to wife, 226.

"IDENTIFICATION:" exploded doctrine of, in cases of negligence, 406

412.

IMPBISONMENT : does not affect period of limitation, 188 p.

IMPRISONMENT, FALSE :

damages for, 170.

justified by local act of indemnity, 183.

definition of, 197.
on mistaken charge, followed by remand, 201.
what is reasonable cause for, 202.

INCOBPOBEAL RIGHTS : of property, violation of, 320.

INDEMNITY :

claim to, of agent who has acted in good faith, 179.

colonial Act of, 184.

" INDEPENDENT CONTBACTOE: "

67, 68, 72.

INDIA, BBITISH :

dealings of East India Company with native states, 99.

protection of executive and judicial officers in, 107 /, 108.

INDIAN CIVIL WBONQS BILL : draft of, 517.

INFANT :

cannot be made liable on contract by changing form of action, 47.

liability of, for torts, 48.
liable for substantive wrong though occasioned by contract, 48.
cannot take advantage of his own fraud, 48.
whether liability limited to wrongs contra pacem, 50.
not made liable on contract by suing in form of tort, 465.

INJUNCTION :

jurisdiction to grant, 174.

interlocutory, 174, 175, 175 q.
to restrain continuing trespass, 342.
to restrain nuisance, 364, 365.
on what principles granted, 366.
not refused on ground of difficulty of removing nuisance, 369.
under C. L. P. Acts, 162 b.
 INDEX. 601

INNZEEPEE :

selling goods of guest, 312 k.

cannot dispute entry of guest, 338.
duty of, 463.

INNS OP COUET :
quasi- judicial powers of, 109.

INNUENDO :
meaning and necessity of, 227.

INSTBUMENT, DANGEEOUS :
responsibility of person using, 45, 420, 441.

INSUEANOB :

construction of policy of, excepting obvious risk, 152.

effect of, on necessity of salvage work, 154 n.

duty in nature of, as regards land, 425.

not as regards persons, 431.

INTENTION :

not material in trespass, 9, 12.

general relation of, to liability, 28, 29.

inference or presumption of, 31.

INTIMIDATION :

of servants and tenants, 212.

when " picketing" becomes, 212 g.

INVITATION :
rights of persons coming on another's property by, 443 sqq.

" INVITATION TO ALIGHT"

cases, 386.

IEELAND : lord lieutenant exempt from actions in, for official acts, 101.

JUDGE:
protection of, in exercise of office, 103.
of inferior court must show jurisdiction, 103.
not liable for latent want of jurisdiction, 104.
allegation of malice will not support action against, 104.
must grant habeas corpus even in vacation, 104.
could not refuse to seal bill of exceptions, 104.

JUDGMENT :
against one of several wrongdoers, effect of, 178.

JUDICIAL ACTS :

of persons not judges, immunity for, 104.

distinguished from ministerial, 200.
protection of, 236.

JUDICIAL PEOCEKDINGS :
reports of, 242.

JUDIdUM KrUSTICUM, 412.

602 INDEX

JUBISDICTION :

to grant injunctions, 174.

local limits of, 183.

JUEY. See COUET AND JUBY.

Jus TEETH : cannot justify trespass or conversion, 316.

JUSTICE OF THE PEACE :

limitation of actions against, 189.

memorial as to conduct of, 241 o.

JUSTIFICATION AND EXCUSE :

general grounds of, 96 sqq.

of defamatory statement by truth, 233.

by licence, 322.
by authority of law, 327.
for re-entry on land, 327, 330.
for retaking goods, 331.
under legal process, 332.
for taking distress, 334.
determination of, 340.

LABOUEEES, STATUTE OF : action under, 207, 211.

LAND:
acts done in natural user of, not wrongful, 137.
artificial works, on, 138 s.

LANDLOED AND TENANT :

questions of waste between, 303.

which liable for nuisances, 371.

LANDOWNEES :

duty as to escape of dangerous or noxious things, 423, 426.

of,

adjacent, duties of, 453.

LAECENY: when trespass becomes, 331.

LAW :
misrepresentation of, 253.

LEAVE AND LICENCE :

defence of, 143 sqq.

as justification for assault, 195.
And see LICENCE.
LESSEE : for years holding over no trespasser, 338.

LESSOE : must not forget lease, 260.

 INDEX. 603
LEX AQOTLIA :

compared with English law, 122

rules of liability under, .

Digest on, compared with English law, 173 I.

Roman law of, liability under, 455, 478 e, 514.
LEX FOBI :
regard to, in English courts, 183, 184.

LIBEL :

damages for trespass on plaintiff's paper, where no libel for want

of publication, 172.

injunction to restrain publication of, 174.

what is primd facie libellous, 216.
what publication, 224.
is

construction of, 227.

fair comment is not, 230.
Law of Libel Amendment Act, 1888. .244.
And see DEFAMATION.
LICENCE :

to apply bodily force, 143.

to do bodily harm, good only with just cause, 144.
obtained by fraud, void, 147.
what, 322.
revocable unless coupled with interest, 323.
may be annexed by law to grant, 323, 324.
revocation of executed, having permanent results, 324.
how given or revoked, 326.
interest by way of equitable estoppel arising from, 326.
not assignable, 326.
does not confer rights in rem, 326.

LICENSEE :

rights of, in use of way, 450.

what risks he must take, 453.

LIEN :
distinguished from conversion, 312.

LIGHT:
obstruction of, 357.
nature of the right to, 357.
what amounts to disturbance of, 358.
the supposed rule as to angle of 45. .358.
effect of altering or enlarging windows, 359.

LIMITATION :

statute of, 47, 188.

effect of foreign law of, 186.

exception of concealed fraud, 189.

where damage gist of action, 189.
text of statutes of, 511.
604 INDEX,.

LOCALITY : of wrongful acts, when material, 183.

LUNATIC : authorized restraint of 112. ,

MAINTENANCE : actions for, 286.

MALA PEOHIBITA no :
longer different in result from mala in se, 23.

MALICE:
cases on, in connection with competition in business, 141 z, a.

ambiguity of the word, 141 z.

effect of, in exercise of common right, 142.
"implied," meaning of, 224.
express, in communication on privileged occasions, 238.
evidence of, 245.
essential in slander of title, 274.

procuring breach of contract actionable only with, 480.

11
MALICE IN FACT " :
51, 238, 246.

MALICIOUS HINDRANCE :
by combination in trade, 283.

MALICIOUS INJUBIES :
by interference with lawful occupation, &c., 284.

MALICIOUS PROSECUTION :

distinguished from false imprisonment, 200.

whether action for, lies against corporation, 278.
action for, for prosecuting action in name of third person, 280.

MANDAMUS: 162 b.

MARKET : franchise of, 321 q.

MARKET OVERT : title acquired in, 289, 490.

MARKET-PLACE :
duty of person controlling structures in, 446, 447.

MARRIAGE : breach of promise of, 172, 493.

MAEEIED WOMAN:
damages and costs recovered against, how payable, 49.
can now sue and be sued alone, 49.
whether liability at common law limited to wrongs contra pacem, 50.

MAEEIED WOMEN'S PEOPEETY ACT:

effect of, 4.

right of action under, how limited, 49 i.

MASTEE AND SEEVANT :

master responsible for servant's negligence, 20.

whether master can have action for loss of service when servant is

killed by the
injury, 57.
liability of master for acts and defaults of servants, 66 sqq.
rule as to liability of master, 69.
reason of, 69.
 INDEX. 605

MASTER AND SERVANT continued.

temporary transfer of service, 74.

execution of specific orders, 76.
liability of master for servant's excessive acts, 80.
wilful wrongs, 83.
fraud, 84.
forgery, 85 q.
injuries to servant by fellow servant, 87.
master must choose proper servants, 91.
furnish suitable materials, 91.
defence of servant by master, 155 q.
action for beating servant, 205, 211.

enticing away, 207.

doctrine of constructive service, 211.

menacing servants, 212.

master giving character, 239.
warning by master to fellow- servants privileged, 241.
as passengers by railway, 469.
whether master can sue for loss of service by a breach of contract
with servant, 474.
And see SERVANT.
MAXIMS:
imperitia culpae adnumeratur, 25.
in iure non remota causa sed proxima spectatur, 26.
a man is presumed to intend the natural consequences of his
acts, 30.
actio personalis moritur cum persona 54 sqq.
qui facit per alium facit per se, 70.

respondeat superior, 70.

sic utere tuo ut alienum non laedas, 97, 113.

nullus videtur dolo f acere qui suo iure utitur, 1 14 c.

volenti non fit iniuria, 143, 148, 151.

culpa lata dolo aequiparatur, 249.

adversus extraneos vitiosa possessio prodesse solet, 316.
res ipsa loquitur, 451.

MEDICAL EDUCATION :
general council of, powers of, over registered medical
practitioners, 109.

MEETING :
public, newspaper reports of, 244.

MENACE :

when actionable, 196.

to servant, 212.

MENTAL OR NERVOUS SHOCK :

damages for, whether too remote, 45.

MILITARY COURT :
privilege of, 236.

MINISTER : of Baptist chapel, removal of, 110 t.

606 INDEX.

MISREPRESENTATION :

of fact or law, 353.

by omission, 254.
by reckless assertion, 259.
by breach of special duty of disclosure, qu. whether deceit, 259.
by neglect of special duty, 260, 261.
reliance of plaintiff on defendant, 264.
construction of ambiguous statement, 267.
amounting to promise or guaranty, 251, 268.
See DECEIT.

MISTAKE :

does not excuse interference with property, 10.

of sheriff, in taking goods, 333.

MORTGAGOR :

may be guilty of conversion, 312.

forcible entry of, upon mortgagee in possession, 329.

MOTIVE :

whether material in exercise of rights, 141, 142.

considered in aggravation or reduction of damages, 173.
when material part of cause^of action, 482.

NAME:
no exclusive right to use of, 143.
of house, no exclusive right to, 276.

NATTTRAL JUSTICE : must be observed in exercise of quasi- judicial powers,

109.

"NATURAL USER:" of property, non-liability for, 424.

NAVIGATION :

negligence in, 39, 412, 413.

requirements of, as limiting statutory powers, 116.

NECESSITY :

as excuse for unskilled person, 25.

as justification generally, 153.
' '
158.
"
compulsive,
destruction of property justified by, 153.

trespasses justified by, 164, 336.

NEGLIGENCE :

liability for, 10.

equivalent to culpa, 17.
liability for, depends on probability of consequence, 36.
contributory, 129 t.

question of, excluded when a risk is voluntarily taken, 149.

knowledge of risk opposed to duty of warning, 150.
 INDEX. 607

NEGLIGENCE con tinned.

aggravated by recklessness, 171.

as ground of action against servant for conversion, 310 a.

general notion of, 373.

concurrence of liability ex contractu and ex delicto, 375.
Alderson's definition of, 376.
failure in average prudence is, 378.
evidence of, 380.
burden of proof on plaintiff, 381.
how affected by contract, 383.
when presumed, 384.
principles illustrated by railway cases, 386.
And see RAILWAY.
duties of judge and jury, 387.
And see CONTRIBUTORY NEGLIGENCE.
due care varies as apparent risk, 393.
notice of special danger through personal infirmity, 395.
of independent persons may be joint wrong, 408.
as to action under difficulty caused by another's negligence, 413.
one is not bound to anticipate another's, 414.
choice of risks causedby another's, 415.
presumption of, in cases of unexplained accident, 450.

liability for, concurrent with another party's liability on contract,

471.
general doctrine of, not applicable to statements, 486, 488.

NEWSPAPER :

vendor of, not liable for libel, 225.

volunteered reports to, 244.
Law of Libel Amendment Act, 1888. .244.
special procedure in action for libel, 246.

NEW TRIAL : for excessive or inadequate damages, 165.

And see COURT AND JURY.

NOTICE :

effect of, on liability for negligence, 377.

judicial, of common facts, 385.
of special risks, 393, 395.
of special circumstances, as affecting measure of damages, 492.

NUISANCE :

when justified by statutory authority, 117, 119.

public or private, 344.
particular damage from public, 346.
private, 348.
affecting ownership, 349.
easements, 350.
comfort and enjoyment, 350.
608 INDEX.

NUISANCE continued.
what amount of injury amounts to, 351.
doctrine of "coming to nuisance" abrogated, 352.
acts in themselves useful and in convenient places may be, 355.
miscellaneous forms of, 354.
by use of property for unusual purpose, 356.
by injury common to many persons, 356.
by obstruction of light, 357.
And see LIGHT.
to market or ferry, 360.
remedies for, 361.
abatement of, 361.
notice before abatement, when required, 362.
duties of person abating, 363.
damages, 364.
injunction, 365.
when reversioner can sue for, 370.
when occupier or landlord liable for, 371.
and lessee for, 37 If.
liabilities of lessor

when vendor or purchaser liable, 372.

whether a single accident can be, 425 t.

OBLIGATION :

ex delicto in Roman law, 16.

quasi ex delicto, 18.
and ownership, 479.
OFFICE :
judicial or ministerial, 111.

OFFICEES :

public, acts of, 105.

excess of authority by, 106.
naval and military, acts of, 107.

subordinate, to what extent protected, 107.

commanding, liability of, for accident, 126.
liability of, for malicious misconduct, 285.
OMISSION : of legal duty, liability for, 23.

PAEENT: authority of , 111.

PAEUAMENT :

disciplinary orders of House of Commons not examinable, 108.

may give a governing body absolute powers, 109.
position of presiding and returning officers at election for, 111.
protection of words spoken in, 235.
proceedings of Committee, 236.
publication of papers and proceedings, 242.
fair reports of debates in, 242.
 INDEX. 609

PAETNEE :

liability of, for co-partner's fraud, 86.

to servant of firm, 93.

expulsion of, 110.

PASSENGEB :
rights of person accepted as, 468, 462, 472.
PATENT RIGHTS :

principle of slander of title extended to, 274.

relation of, to possession, 321.

PEECOLATION :
underground, no cause of action for, 137 sqq.
PEESON wrongs to the, 7. See ASSAULT.
:

PEESONAL ACTION classification of forms of, 497.

:

PEESONAL ESTATE :
damaged by personal injury, no cause of action, 60.

"PICKETING," 212^.
Pias:
may be cattle by statute, 411 m, 434 u.

average obstinacy of, 411 n.

PLAINTIFF : a wrongdoer, may still recover, 159.
PLEDGEE : abuse of authority by, when conversion, 311.
POISON :
responsibility of persons dealing with, 439.
POSSESSION :

more regarded than ownership in the early law, 290.

right to, commonly called property, 292.

distinguished from custody, 292 h.
relation of trespass to, 293.
constructive, 294 Jc.
right to immediate, plaintiff in trover must have, 304.
without title, protected against strangers, 315.

why protected by law, 317.

derivative, 318.
of receiver or taker from trespasser, 319.
restitution of, after forcible entry, 329.
taken by trespass, when complete, 330, 331.
owner not in, how far liable, 456.

obtaining of, by trick, 490.

POST-CAED :
sending defamatory matter on, 245.
POUND :
feeding animals in, 336.

PEESCEIPTION ACT : effect of, on right to light, 357.

PEINCTPAL AND AGENT:

when principal must indemnify agent, 179.
liability of principal for fraud of agent, 270.
where principal is a corporation, 272.
reason of liability, 273.

liability of agent misrepresenting principal's authority, 470.

P. B R
610 INDEX.

FEINTING OF LIBEL: prima fade a publication, 225 &.

PEISON : what is, 198.

PRIVILEGE :

"
absolute," in law of defamation, 235.
judicial and parliamentary, in law of defamation, 235.
"
qualified," 237.
conditions of, 237.

privileged occasions, and excess, 239, 245.

of communications- in interest of society or in self-protection, 240.
of information for public good, 241.
fair reports, 242.

PRIZE-FIGHT :

why unlawful, 145, 146, 147.

presence at, 146.

PROPEBTY :

wrongs to, 7, 9, 12, 15.

acts done in defence of, 154, 156.

duty to respect, 287.

of goods, commonly means right to possess, 292, 304.
transferred by satisfied judgment in trover, 307.

PROSECUTION: whether necessary before offender can be civilly sued,

180 sqq.

PUBLICATION :

of libel, what, 224.

by agent, 226.
PURCHASER :
innocent, may be liable for conversion, 308, 309.

KAIL-WAY :

unguarded crossing, responsibility of company for, 23, 38.

remoteness of damage suffered on, 35, 41.
overcrowded carriage in, 41.

liability of company for mistaken acts of servants, 80.

immunity or liability of company for damage in execution of

undertaking, 115, 117.

effect ofstatement in company's time-tables, 263.
distraint of engine damage feasant, 331 s.
evidence of negligence in accidents on, 386.
level crossing cases, 386.
"invitation to alight" cases, 386, 416.
escape of sparks, 391.
where train fails to stop, 417.

liability of company for damage by escape of sparks, 392, 430, 436.

breaking down of embankment, 431.
 INDEX. 611

RAILWAY continued.

duty of company as to safety of carriages and platforms, 447.

of structures, as regards passers-by, 450.
liabilities of company from assumption of duty, independent of
contract, 468, 472.
EATS :
damage by, 429 z.

REASONABLE CAUSE : for imprisonment, 202.

RECAPTION : of goods wrongfully taken, 331, 340.

REMEDIES :

at common law in general, 162.

self-help, 163.
damages, 164.
kinds of damages, 165.
measure of damages, 169.

injunctions, 174.
damages or compensation for deceit, 175.
for breach of statutory duty, 176.

alternative, on one cause of action, 460.

REMOTENESS: of consequence or damage, 35, 41,

REPLEVIN, 291, 299.

REPOETS :

of naval and military officers, how far privileged, 237.

confidential, to official superiors, 239.
fair, of public proceedings, 242.

newspaper, of public meetings, 244.

REPBESENTATION :
compensation or damages for false, 175.

RES IUDICATA, 178.

REVENUE OFFICERS :
protection of, in cases of forcible entry, 333.
REVEESION: injury to, measure of damages, 169, 298.
REVOCATION : of licence, 323, 326.

RIGHT :

exercise of, not cause of action, 133 A, 134.

whether it can be made wrongful by malice in fact, 141.
assertion of, distinguished from self-defence, 157.
absolute, at least nominal damages recoverable for violation of, 166.
RISK :
voluntary taking of, 129 t, 132, 148, 149, 152.

ROMAN LAW :

of obligations ex delicto, 8, 16.

as to effect of death of party on rights of action, 54 sqq.
on the value of human life, 58 h.
noxal actions of, 121.
does not make a man
liable for inevitable accidents, 122.

distinguishes right to personal security from that of property, 173.

of possession, 293, 317 a, b.
RR2
612 INDEX.

ROMAN LAW continued.

legis actiones in, compared with common law forms of action", 459.

theory of culpa in, 461 /.

concurrent breach of contract with delict in, 478.
of contributory negligence, 514.
RUNNING-DOWN CASES, 131, 132, 173.
RYLANDS v. FLETCHER, the rule in, 421 sqq.

SCANDALUM MAGNATT7M, 215 b.

SCIENTER: doctrine of, as to damage by animals, 434.

SCOTLAND (law of) :

as to trespassby parachute, 34 u.
gives compensation for damage by death, 60 o, 64.
" common v
theory of employment forced upon, 88.
as to aemulatio vicini, 142.
as to protection against dangerous animals, 434 t.

SEDUCTION :

actions for, 207.

what is service for this purpose, 208, 209.

damages, 209.
SELF-DEFENCE ;

right of, 155.

assertion of disputed right distinguished from, 157.

injuries to third person resulting from, 30, 157, 158.

against wrongful assault, 196.
SELF-HELP, 163. And see ABATEMENT, DISTRESS, RECAPTION.
SEPARATE PROPERTY :

costs and damages payable out of, 51.

trespasser on, 52.

whether husband can be indemnified from, 52.

SERVANT :

who is, 71.

may change master pro tempore, 74.

what course of service, 75.
is

negligence of, in conduct of master's business, 76.

departure from master's business, 77.
mistake or excess of authority by, 80.
arrest of supposed offender by, 81.
acts of, outside his authority, 82.
wilful wrongs of, for master's purposes, 83.
injuries to,by fellow -servant, 87.
injury to, where master interferes in person, 93.

custody or possession of, 292 h.

conversion by, in master's interest, not excusable, 305.
but qu. as to acts done under master's possession and apparent
ownership, 309.
And see MASTER AND SERVANT.
 INDEX. 613

SERVICE :

proved or presumed in action for seduction, 207 sqq.

of young child, 210.
SHEEIFF :

immunity or liability of, 107.

power and duty of, to break doors, &c., in execution of process, 333.
remaining unduly long in possession, 340.
SHIP:
master's authority, 113.
right of shipowner to refuse services of particular tug, 139.
ownsr's liability, how affected by neglect of statutory regulations,
177.

contributory negligence of, 398, 413.

rule of Admiralty as to division of damage, 412.

duty of owner as to safety of cargo, 447.

liability of owner as carrier, 466 t.

SHOOTING :
liability for accident in, 127 sqq.
SKILL :
requirement of, in particular undertakings, 24, 380, 384.
SLANDER :

injunction to restrain, 174.

when actionable, 216.
special damage, 217.
temporal loss necessary to special damage, 218.
imputation of crime, 219.
contagious disease, 221.
disparagement in office or business, 221.

indirect damage in business, 223.

And see DEFAMATION.
SLANDER OF TITLE, 136, 273.
relation of, to ordinary defamation, 274.

SOVEREIGN :
foreign, cannot be sued in England for political acts, 101.

SOVEREIGNTY: acts of, how far examinable, 102.

SPECIAL DAMAGE : involves definite temporal loss, 218.

SPORT : hurt received in lawful, 145, 146 o, 148, 195.

SPRING- GUNS :

authorities injuries by, 149 on a, 159.

threat of, useless, 342.

STAIRCASE : when not dangerous, 385, 393.

STAND :
safety of, guaranteed by contractor, 446.
STATE : acts of, 98.

STATUTE :

duties created by, breach of, 23, 24, 176.

acts authorized by, 117.
caution required in exercise of powers conferred by, 118.

STRANGER : has no cause of action on breach of contract, 484.

614 INDEX.

SUNDAY : statutes for observance of, in United States, 161.

SURGEON : action against, for misfeasance, 461 d.

TELEGEAPH :

sending defamatory matter by, 245.

conflict between English and American authorities as to rights of
receiver of message, 485.

TENANTS :

intimidation of, 212, 212 h.

in common, trespass between, 314.
TENTEEDEN'S ACT (LOED), 268.
qu. how far now operative, 269.
THIED PEESON :

intervention of, no excuse for negligence, 44 r.

injuries resulting to, from self-defence, 30, 157, 158.

TEMBEE : waste by cutting, 302.
TOET:
what is, 1.

actions of (as opposed to contract), 2.

wrongs which are not, 3.

former criminal character of action for, 3.
an exclusively common law term, 3, 4.

generic division of, 6.

wilful, negligent, or involuntary, 8.
from ethical standpoint, 12.

general characters of, 19.

law of, in three main heads, 22.
relations of, to contract, 457 sqq.
cases of, whether contract or no contract between same parties, 468.
waiver of, for purpose of suing in contract, 469.
cause of action in, co- existing with contract, 471.
or contract, statutory divisions of actions as " founded on," 504.

TEADE-MABKS :
protection of, 276.
TEAMWAY : nuisance by, 345.
TEAP:
dangers in nature 449, 454, 455, 456.
of,
set by railway company, 472.
TEEE :
projecting over neighbour's land, 426, 427.
TEESPASS :

the least invasion of property is, 9.

writ of, 13.

liability for consequences of, 34.

inevitable accident as excuse for, 121 v sqq.
strict archaic theory of, 127.

special justification, when proper, 131.

injuries to, when actionable or not, 149, 159.
necessity as excuse for, 153.
 INDEX. 615

TRESPASS continued.

damages in action of, 165, 171.

actual damage not material in, 167.

wanton, 170.
aggravated, 171, 172.
" in felony,
" 180.
merged
to foreign land not actionable, 185.

by taking away wife, &c., 205.

or case, whether action for seduction in, 205 b, 206 d.
relation of, to larceny, 292, 298, 303.
to land or goods, what, 297.
relation of, to conversion, 294, 303.
to land, by what acts committed, 295.
above or under ground, 296.
by cattle, 297.
to goods, how committed, 298.
between tenants in common, 314.
owner entitled to immediate possession may sue for, 318.
justification or excuse for, 322 sqq.
continuing, 331.
by necessity, 336.
in fox-hunting, 338.
ab initio, 338.
ab initio cannot arise from nonfeasance, 340.
costs in actions for, 341.

continuing, restrainable by injunction, 342.

distinguished from nuisance, 349 sqq.
by cattle, 432.
action of, originally penal, 502.
TRESPASSES :

not disqualified to sue, 159.

effect of delivery by, 319.

TROVES :

action of, 300.

special action in some cases where trover does not lie, 312.

"TRUE OWNER:" meaning of, 290.

TRUSTEE must not forget incumbrances, 260.

:

'

TRUSTEE IN BANKRUPTCY not bound to prosecute : for felony before

bringing civil action, 182.

TRUTH : as justification, 233.

UNDERSELLING : no action maintainable for, 136.

UNIVERSITY :
quasi- judicial powers of, 109.

USER : reasonable presumption of, 302.

VEHICLE :
safety of, how far guaranteed by owner, 448.

VENUE : old law of, 184.

616 INDEX.

VICEEOY : local actions against, 100.

Vi ET Asms what trespass is, : 145.

VOLUNTEEE : in no better plight than servant, 92.

WAEEANTY :

obligation of, on sale for specific purpose, 448 p.

implied, of agent's authority, 58 /, 470.
WASTE:
remedies for, 299.
what is, 300.
reasonable user of tenement is not, 301.
by cutting timber, &c., 302,
equitable, 303 t.
as between landlord and tenant, 303.

WATEB :

under land, rights of using, 137.

responsibility of persons artificially collecting, 421.
except where storage is a duty, 429.
WAY : limited right of, 336 /.

WINDOWS : alteration in, does not destroy claim to light, 359 sqq.

WITNESS :
immunity of words spoken by, 236.
WOEDS :

cannot be assault, 195.

alleged defamatory construction of, 227.
repetition of, 225, 229.
WOEKMAN: who is, within Employers' Liability Act, 510/.
WEIT:
of right, 13 L
of debt, 13.
of detinue, 13, 15.
of deceit, 14 m.
of trespass, 14 m.
of trespass on the case, 14, 23.

WEONG-DOEE not :
necessarily disentitled to sue for wrong to himself, 159.

WBONG-DOEBS :

do not forfeit rights of action, 159.

joint liability of, 178.

contribution between, 178, 179.

WBONGS :

to the person, 7.
to property, 7.
to person and property, 7. See TOET.

FEINTED BY C. V. EOWOETH, GEEAT NEW STREET, FETTEB LANE E.G.

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