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Hunt's Law of Boundaries and Fences and Rights of Waters. 3rd Edition. By Archibald Brown, Esq. 14s. cloth. Dixon's Law of Partnership. 8vo. 22s. cloth. Tudor's Leading Cases on Real Property, Conveyancing, Wills and Deeds. 3rd Edition. Royal Svo. 21. 12s. 6d. cloth. For complete Catalogue, see end of this Book. UNDEBHILL'S LAW OF TOKTS. SIXTH EDITION. A SUMMARY LAW OF TORTS; OE, WKONGS INDEPENDENT OF CONTRACT. BY ARTHUR UNDERBILL, M.A., LLD., of Lincoln's inn, esquire, bakrister-at-law, Author of "A Concise Treatise on the Law relating to Private Trusts and Trustees" "The Settled Land Acts," &c, and sometime Assistant Examiner in the Law of Real and Personal Property in the Inns of Court, and Lecturer on Equity to the Incorporated Law Society of the United Kingdom, assisted by HUBERT STUART MOORE, OF THE INNER TEMPLE, ESQUIRE, BARRISTER- AT - LAW. SIXTH EDITION. LONDON : BUTTERWORTHS, 7, FLEET STREET, lEato ipubltsfjcrs to tf)e (Queen's most excellent Jilajestp. DUBLIN : HODGES, FIGGIS & CO., GRAFTON STREET. CALCUTTA : THACKER, SPINK & CO. MELBOURNE : G. ROBERTSON & CO. MANCHESTER : MEREDITH, RAY & LITTLER. EDINBURGH : T. & T. CLARK ; BELL & BRADFUTE. 1894 T Kn * at \*14 LONDON : PEINTED BY C. F. EOWOETH, GEEAT NEW STEEET, FETTEB LANE, B.C. n i ^ ^ ^ €f)i$ TOorfe, WHICH WAS F0EMEELY DEDICATED TO MY LATE COUSIN JOSEPH UNDEKHILL, Esq., Q.C. THEN Recorder of Newcastle-under-Lyme Master of the Bench of the Honourable Society of the Middle Temple, MOST EEQEETFULLY INSCEIBED ^o i)i$ ijftemorg. ittlll- PREFACE TO THE SIXTH EDITION. The fact that five Editions of this "Work have been sold, and that an American firm have thought it worth their while to issue an unauthorized edition in the United States, renders it no longer necessary to apologize for its existence. Many of my friends and clients have expressed sur- prise that an Equity and Conveyancing Counsel should have written a Treatise on the Law of Torts. The answer is, that every lawyer, whatever his speciality may be, ought to know the principles of every branch of the law ; and, in my student days, my endeavours to fathom the principles of the Law of Torts were sur- rounded with so much unnecessary difficulty, owing to the absence of any text-book separating principle from illustration, that I became convinced that a new crop of students would welcome even such a guide as I was capable of furnishing. The result has proved that I was not mistaken. Vlll PREFACE. Indeed, however useful the great treatises then existing were for the practitioner, they were almost useless to the student. In the first place, to his un- accustomed mind they presented a mere chaos of examples, for the most part unexplained, and, in the absence of explanation, seeming very often in direct contradiction. What student without careful explana- tion would grasp the difference between Fletcher v. BylandSy and Nichols v. Marsland for instance ? In the second place, the men are few indeed who can trust their memories to retain the contents of a large treatise with accuracy ; and although that is not neces- sary, yet it is essential that they should accurately remember the principles of the law. For these and other reasons, I ventured to write this work, and I think that if a student will thorough/// master it, he will know as much of the principles of the Law of Torts as will suffice to make him a competent general practitioner, and to pass him through his examinations so far as that subject is concerned. I do not assert for one instant that it will enable him to answer every case that comes before him, but I am not acquainted with any man whose mental stock enables him to do this. In the vast majority of' cases the practitioner who has any regard for the interests of his clients, or the reputation of himself, will turn to his digests and his reports ; for however well he may PREFACE. IX understand the principles of the law, it is only very long practice indeed, or the intuition of genius, which enable him to apply these principles to particular complicated facts with ease and certainty. The present Edition contains the latest leading authorities on the subject which have been decided between the issue of the last Edition and the end of January, 1894, together with a few American and Colonial decisions, which seemed to me to be both good law and excellent illustrations of principles. Lastly, I have to express my thanks to my friend Mr. Hubert Stuart Moore, Barrister of the Inner Temple, for his kind assistance in the preparation of this Edition. The articles upon Fisheries and Ferries are entirely due to him, and by his care in revising the work generally, my labours have been considerably lightened, and its accuracy greatly increased. ARTHUR UNDERBILL. 5, New Sqtjaee, Lincoln's Inn, W.C. March, 1894. CONTENTS — ♦ — PAGE Preface _._____--vii Table of Cases cited ------- xxi INTRODUCTION - 1 Part I. OF TORTS IN GENERAL. Chapter I. OF THE NATURE OF A TORT. Art. 1. Definition of a Tort ------ 5 ,, 2. Classification of unauthorized Acts or Omissions constituting one Element of a Tort - - - 12 ,, 3. Of Volition and Intention in relation to the unau- thorized Act or Omission - - - - - 1 o ,, 4. Of the Connection of the Damage with the unautho- rized Act or Omission - - - - - 23 Xll CONTENTS. PAGE Art. 5. Where Damage would have heen suffered in the absence of the unauthorized Act or Omission - 25 ,, 6. To what extent Civil Eemedy interfered with where the unauthorized Act or Omission constitutes a Felony -------- 27 Chapter. II. VAEIATION IN THE GENEEAL PEINCIPLE WHEEE THE UNAUTHOEIZED ACT OE OMISSION IS ONE EOEBIDDEN BY STATUTE. Art. 7. General Eulo ------- 33 ,, 8. Where the Act or Omission is forbidden to prevent a particular Mischief - - - - - 37 ,, 9. The Observance of Statutory Precautions does not restrict Common Law Liability - - - 38 Chapter III. YAEIATIONS IN THE GENEEAL PEINCIPLE WHEEE THE UNAUTHOEIZED ACT OE OMISSION AEISES OUT OF THE PEEFOEMANCE OF A CONTEACT. Art. 10. Cases where Tort and Contract overlap - - 39 , , 11. Privity necessary where the Tort arises out of the Performance of a Contract - - - - 41 ,, 12. Duties gratuitously undertaken - - - - 46 Chapter IV. VAEIATION IN THE GENEEAL PEINCIPLE WHEEE THE UNAUTHOEIZED ACT OE OMISSION TAKES PLACE OUTSIDE THE JUEISDICTION OF OUE COUETS. Art. 13. Torts committed Abroad ----- 49 CONTENTS. Xlll Chapter V. OF PEESONAL DISABILITY TO SUE AND TO BE SUED FOE TOET. PAGE Art. 14. Who may sue -------51 ,, 15. Who may be sued for pure Torts - - - 52 ,, 16. Who may be sued for Torts founded on Contract - 55 Chapter VI. LIABILITY FOE TOETS COMMITTED BY OTHEES. Sect. I. — Liability of Husband for Torts of Wife. Art. 17. Wife's Ante-nuptial and Post-nuptial Torts - 56 Sect. II. — Liability of Employer for Torts of Contractor. Art. 18. General Immunity, with certain Exceptions - 57 Sect. III. — Liability of Master for Torts of Servant. Sub-sect. 1. — Liability to Third Parties. Art. 19. General Principle ------ 61 , , 20. Eatification of Tort committed by a Servant - 70 ,, 21. Unauthorized Delegation by Servant- - - 71 Sub-sect. 2. — Liability to Servants for Injuries caused by Fellow-Servant. (1.) Common Law Liability. Art. 22. General Immunity ------ 73 ,, 23. Volunteer Servants ------ 82 (2.) Under Employers' Liability Act. Art. 24. Epitome of Act - - - - - - - 83 XIV CONTENTS. Chapter VII. OF THE LIMITATION OF ACTIONS FOE TOET. PAGE Abt. 25. Commencement of Period - - - - - 90 „ 26. Continuing Torts ------ 94 ,, 27. Disability- ------- 95 Chapter VIII. OF DAMAGES IN ACTIONS FOE TOET. Art. 28. Damages for Personal Injury - - - - 96 29. Damages for Injury to Property - - - 99 30. Consequential Damages ----- 100 31. Prospective Damages - 105 32. Aggravation and Mitigation - 107 33. Presumption of Damage against a Wrongdoer - 111 34. Damages in Actions of Tort founded on Contract - 112 35. Joint Tort-feasors jointly and severally liable for Damages - - - - - - -113 Chapter IX. OF INJUNCTIONS TO PEEVENT THE CONTINUANCE OF TOETS. Art. 36. Injuries remediable by Injunction - - - 115 ,, 37. Threatened Injury - - - - - -124 ,, 38. Public Convenience does not justify the Continu- ance of a Tort ______ 125 ,, 39. Mandatory Injunctions ----- 126 ,, 40. Delay in seeking Eelief ----- 128 CONTENTS. XV Chapter X. THE EFFECT OF THE DEATH OR BANKRUPTCY OF EITHER PARTY. PAGE Art. 41. Death generally destroys the Right of Action - 129 „ 42. Effect of Bankruptcy - - - - - 131 Part II. OF RULES RELATING TO PARTICULAR TORTS. Chapter I. TORTS FOUNDED ON MALICE. Sect. I. — Of Libel and Slander. Art. 43. Definitions of Libel and Slander - - - 135 44. What is Defamatory ------ 137 45. Publication -----__ 140 46. Malice and Privileged Communications - - 142 47. Actual Damage essential to Action for Slander - 152 48. Repeating Libel or Slander - 159 49. Libels by Newspaper Proprietors - - - 161 50. Limitation -_-____ 162 Sect. II. — Of Malicious Prosecution. Art. 51. Definition ------- 163 52. Prosecution by the Defendant - - - - 164 53. Want of Reasonable and Probable Cause - - 164 54. Malice essential- - - - - - -167 55. Failure of the Prosecution essential - - - 169 56. Damage -------- 170 XVI CONTENTS. Sect. III. — Of Maintenance. PAOB Art. 57. Definition _______ 172 Sect. IV. — Of Seduction. Art. 58. General Liability ______ 175 ,, 59. Relation of Master and Servant essential - - 176 ,, 60. Misconduct of Parent _____ 179 ,, 61. Damages -___---- 180 „ 62. Limitation ....... 182 Sect. V. — Of Deceit or Fraud. Art. 63. Definition of Fraud 182 , , 64. When an Action will lie for Fraudulent Statements 187 ,, 65. When an Action will lie for Fraudulent Silence - 194 „ 66. Limitation - - - - - . - - 198 Chatter II. OF TOETS FOUNDED ON NEGLIGENCE. Art. 67. Definition 199 68. Contributory Negligence ----- 205 69. Onus of Proof 210 70. Duties of Judge and Jury - - - - - 212 71. Limitation _______ 214 72. Actions by Personal Eepresentatives of Persons killed by Torts 214 Chapter III. OF TOETS FOUNDED ON THE MISUSE OE ABUSE OF PEOPEETY. Art. 73. Definition of Nuisance _ _ _ - - 219 CONTENTS. XVU Sect. /.—Of Bodily Injuries caused by Nuisances. pAQE Art. 74. When Actionable ------ 220 „ "75. Nuisances created by Euinous Premises - - 223 ,, 76. Nuisances on Roads ------ 226 ,, 77. Nuisances causing In juries to Guests - - - 228 ,, 78. Limitation - - 229 Sect. II.— Of Injuries to Property caused by Nuisances. Sub-sect. 1. — Nuisances to Corporeal Hereditaments. Art. 79. General Liability - 230 ,, 80. Eeasonableness of Place ----- 234 ,, 81. Plaintiff coming to the Nuisance - 237 ,, 82. How far Eight to commit a Nuisance can be acquired- _______ 238 Suh-sect. 2. — Nuisances to Incorporeal Hereditaments. Art. 83. Disturbance of Eight of Support for Land without Buildings ------- 243 84. Disturbance of Support of Buildings - 246 85. Disturbance of Eight to Light and Air - - 249 86. Disturbance of Water Eights - 258 87. Disturbance of Private Eights of Way - - 263 88. Disturbance of Eights of Common - - - 267 89. Disturbance of Eights of Fishery - - - 271 90. Disturbance of Ferries 275 91. Eemedy for Nuisances by Abatement - - - 277 92. Eemedy of Eeversioners for Nuisances - - 279 Chapter IV. OF TOETS FOUNDED ON THE DIEECT INFELNGE- MENT OF PEP7ATE EIGHTS. Sect. I. — False Imprisonment. Art. 93. Definition -2S1 XJ. b XV1LL CONTENTS. Sub-sect. 1. — Of Imprisonments by Private Persons and Constables. PAGE Art. 94. General Immunity from Imprisonment - - 28 Sub-sect. 2. — Of Imprisonment by Judicial Officers. Art. 95. General Authority of Judicial Officers - - 2S8 ,, 90. Prima facie Jurisdiction sufficient to excuse Judi- cial Officer ------- 290 ,, 97. Power to imprison for Contempt of Court - - 291 ,, 98. Power of Magistrates to imprison - 292 „ 99. Limitation _______ 294 Sect. II. — Of Direct Bodily Injuries. Art. 100. Definition of Assault - - - - - 296 101. Definition of Battery - - - - - 297 102. General Liability for Assault, Battery, and other direct Bodily Injuries ----- 298 103. Institution of Criminal Proceedings endangers Eight of Action - 301 104. Amount of Damages _____ 303 105. Limitation _______ 303 Sect. III. — Of Trespass to Land and Dispossession. Sub-sect. 1. — Of Trespass Quare Clausum Fregit. Art. 106. Definition - 303 ,, 107. Trespassers ab initio _____ 306 ,, 108. Possession necessary to maintain an action for Trespass _______ 307 ,, 109. Trespasses by Joint Owners _ - - - 309 ,, 110. Continuing Trespasses ----- 310 ,, 111. Limitation _______ 310 Sub-sect. 2. — Of Dispossession. ART. 112. Definition - -311 „ 113. Onus of Proof of Title 311 Aet, 117 3) 118. 5> 119. 5) 120. 5> 121. 122. CONTENTS. XIX PAGE Aet. 114. Character of Claimant's Estate - - - - 313 ,, 115. Limitation _______ ;J14 „ 116. Commencement of Period of Limitation - - 315 Sect. IV. — Of Trespass to and Conversion of Chattels. General Eule ------- 316 Possession necessary to maintain an Action of Trespass ____--_ 323 Trespasses by Joint Owners - 325 Trespassers ab initio _____ 326 Eemedy by Eecaption _____ 326 Eemedy by ordinary Action - - - - 327 ,, 123. Eemedy by Action of Eeplevin - - 328 „ 124. Waiver of Tort ------ 329 ,, 125. Eecovery of Stolen Goods - 329 ,, 126. Limitation _______ 330 Sect. V. — Of Infringements of Trade Marks and Patent Eight and Copyright. Sub-sect. 1. — Infringement of Trade Marks and Trade Names. Art. 127. Definition - 331 ,, 128. General Eule as to Infringement of Trade Marks and Names ------- 334 ,, 129. Eights of Assignee of Trade Mark - - -338 ,, 130. Selling Articles under Vendor's own Name - 338 ,, 131. Eegistration of Trade Marks - 339 Sub-sect. 2. — Infringement of Patent Bight. Art. 132. Definition of Patent Eight - - - - 340 ,, 133. Factors necessary to a valid Patent - 340 ,, 134. "What is a Manufacture ----- 341 ,, 135. Newness of Manufacture ----- 342 ,, 136. Meaning of True and First Inventor - - - 344 b2 XX CONTENTS. PAGK ART. 137. General Public Utility 344 ,, 138. Specification ------- 345 j, 139. "What constitutes Infringement - - - 347 Sul-sect. 3. — Of Infringements of Copyright. ART. 140. Definition and Extent of Copyright - - - 348 „ 141. Meaning of "Book" - - - - -349 ,, 142. What constitutes Infringement of^Copyright - 350 INDEX 357 ( x *i ) TABLE OF CASES CITED. A. PAGE Abbott v. McFie 209 Abrahams v. Deakin 68 Abrath v. N. E. Eail. Co 164, 165, 169 Ace. Ins. Co. r. Ace, Disease andG. Ins. Co 339 Acton v. Blundell 262 Adair v. Young 347 Adamson v. Jervis 114 Addie r. W. Bank of Scotland 193 Ager r. P. & O. Co 349 Aldred v. Constable 317 Alexander v. Jenkins .... 153, 158 Allbut v. General Council, &c. 146 Allen v. Howard 58 v. New Gas Co 74 Allsopp v. Allsopp 155 Alton v. Midland Kail. Co. . . 42 Ancaster v. Milling 103 Anderson V. Oppenheimer. . . . 233 v. Radcliffe 308 Anglo-American Brush Corp. v. King & Co 342 Anglo-Italian Bank v. Davies. 121 Angus r. Clifford 184, 190 v. Dalton 60, 246, 248 Apollo (owners of) v. Port Talbot Co 41 Applebee v. Percy 204 Appleby v. Franklin 32 Arcedeckne v. Kelk 258 Argentino, The 101, 104 Armory v. Delamirie .... Ill, 324 Armstrong v. Lancashire and Yorkshire Rail. Co 207 Ashby v. White 11 Asher v. Whitlock 307, 312 Ashton r. Stock 315 Ashworth v. Stanwix 74 Aslatt v. Corporation of South- ampton 116, 122 PAGE Aspden ?'. Seddon 244 Assop v. Yates 81 Atkinson v. Newcastle Water Co 34, 36 Att.-Gen. v. Emerson 273,274 ■ ■ v. Mayor, &c. of Birmingham .... 126 v. Mayor of Man- chester 125, 239 ■ v. Queen Anne's Mansions Co 255 Aynsley v. Glover 118, 257 B. Back v. Stacy 251 Backhouse v. Bonomi . .90, 91, 243 Bailey v. Icke 252 Baldwin v. Casella 204 Ball, Ex parte 28, 29, 31 Ballard v. Dyson 264 ■ ■ v. Tomlinson 259, 2G0 Balme v. Hutton 323 Banford r. Tumley 235 Bank of New South Wales v. Owston 53, 54 Barber v. Penley 232 Barker v. Furlong 324, 325 Barley v. Walford 187 Barnes v. Ward 221, 226 Barnett v. S. L. Tram. Co. . . 193 Barry v. Croskey 43 Bartonshill Coal Co. v. Beid . . 63, 76 Barwick v. English Joint Stock Bank 192 Basebu r. Matthews 169, 170 Bass r. Gregory 250, 256 Batchelor v. Fortescue 203, 206 Battishill v. Eeid 234 Baxter v. Taylor 279 XX] 1 TABLE OF CASES CITED. PAGE Bayley r. Manchester, &c. Kail. Co 61, 6S Bayliss v. Fisher Ill Bear v. Stevenson 193 Beard v. Egerton 344 Beasley v. Roney 51 Beaver r. Mayor, &c. of Man- chester 305 Beckham v. Drake 131 Beck with r. Philby 284 Bedford v. M'Kowl 98, 180 Bedingfield v. Onslow 279 Belfast Rope Works v. Boyd.. 260 Bell v. G. N. Rail. Co 101 , v. Stone 137 v. Walker 351 Bellamy v. Wells 232 Benjamin v. Storr 12 Bennett v. Alcott 178 Bentley v. Vilmont 320, 330 Bernina, The 208 Berringer v. G. E. Rail. Co.. . 12, 42, 46 Betts v. Gibbins 114 v. Thompson 269 Binks v. S. Y. R. Co 222 Bird v. Jones 281 Birmingham Corp. v. Allen . . 243, 246 Bishop v. Trustees of Bedford Charity 221 Blackm an v. Bryant 157 Blad's Case 50 Blades v. Higgs 300 Blair v. Deakin 113 Blake r. Lanyon 175 v. Midland Rail. Co 102 Blissett v. Hart 276 Blood worth v. Gray 153, 157 Bloomfield v. Johnston 272 Blount v. Layard 273 Blvth r. Birmingham Water Co 199,201 Bogue v. Houlston 349 Bolch v. Smith 227 Bolton v. Bolton 265 Bonnard v. Perryman .... 117, 122 Bonner v. G. W. RaU. Co. . . 127 Booth v. Mister 71 V. Ratte 259 Borlick v. Head 85 Boucieault v. Chatterton .... 354 Boulnois v. Peake 336 Bound v. Lawrence 86 Bowen v. Hall 175 PAQK Bower v. Anderson 224 v. Peate 60 Bowyer v. Cook 310 Box». Jubb 20,22,233 Boyle v. Tamhn 304 Bradburn v. G. W. Rail. Co. . . 101 v. Morris 264 Bradlaugh v. Newdigate. .172, 173 Bradshaw v. Lancashire and Yorkshire Rail. Co 217 Braham v. Beachim 336 r. Bustard 336 Bramloy v. Chesterton 105 Brassington v. Llewellyn .... 314 Brewer v. Dew 111,131 V. Sparrow 329 Brinsmead v. Harrison 113 British Mutual Bkg. Co. v. Charnwood 65,193 British S. Af . Co. v. The Cam- panhia de Mocambique .... 50 Britton r. S. Wales Rail. Co. . . 97 Broad v. Ham 166 Broder v. Saillard 223 Brook v. Ashton 343 Brooke v. Ramsden 82 Brown v. Alabaster 265 v. Boorman 39 — v. Robins 246 v. Watson 290 Brunsden v. Humphrey 107 Bryant v. Lefever 250, 256 Bullew V. Langdon 269 Burgess v. Burgess 339 v. Gray 59 Burnard v. Haggis 53, 55 Burnett v. S. L. Tram 65 Burroughs r. Bayne 316 Bury v. Bedford 338 Butcher v. Butcher 308 Butler v. Manchester, &c. Rail. Co 69,300 Butt v. Imperial Gas Co 10 Byne v. Moore 171 Byrne v. Boadle 210, 211 C. Cahill v. Fitzgibbon 284 Calder v. Halket 291 Calliope, The 41 Cameron v. Nystrom 78 Campbell v. Scott 351 TABLE OF CASES CITED. XX111 PAGE Campbell v. Spottiswoode .... 151 Cauham v. Fisk 252 Cann v. Wilson 44 Camion v. llimington 315 Capital, &c. Bank v. Henty . . 139 Carlisle (Mayor of) v. Graham 275 Carlyon v. Layering 262 Carpenter v. Smith 344 Carr v. Clarke 178 v. Lambert 268 Carslake v. Mappledoram .... 157 Carstairs v. Taylor 19 Cary v. Kearsley 352 Castrique v. Behrens 170 Cate v. Devon, &c. Co 350 Cave v. Mountain 290 Chamberlain v. Boyd 155 Chandler v. Robinson 247 Chapman v. Pickersgill 13 v. Rothwell 226 Chappell v. Boosey 355 Charles v. Taylor 79 Charleston v. London Tram- ways Co 54, 68 Chasemore v. Richards .... 259, 262 Chatterton v. Cave 352 Cheavin v. Walker 337 Chinery v. Viall 112 Christie v. Cowell 156 — — - v. Davey 232 Christopherson v. Bare 297, 298 Church v. Appleby 82 Churchill v. Siggers 163 City Commissioners of Sewers v. Glass 269 City of Lincoln, The 104 City of London Brewery Co. v. Tennant 257 Clark v. Chambers . . . .21, 27, 204 v. Clark 127 v. Freeman 122, 138 v. Molyneux 143, 147 Clarke v. Adie 342 Clement v. Chivis 137 Cliff v. Midland Rail. Co 207 Clothier r. Webster 48 Cobb r. G. W. Rail. Co 202 Cobbett v. Gray 296 Cockroft v. Smith 299 Cocks v. Chandler 336 Coggs v. Bernard 47 Collard v. Marshall 123 Colley v. L. & N. W. Rail. Co. 36 Collins v. Midland Level Com- missioners 104 PAGE Compton V. Richards 252 Consolidated Bank v. Curtis & Son 318 Cook v. Beal 299 v. N. Met. Tramways Co. 86 v. Wildes 143 Cooper v. Booth 164 r. Hubbock 258 v. Marshall 278 v. Phibbs 271 v. Straker 255 r. Willomat 317, 324 Corbet v. Jones 252 Corp. of Birm. v. Allen 246 Corp. of London v. Riggs .... 265 Coster v. Hetherington 302 Couch v. Steel 35 Coulson v. Coulson 123 Coutts v. Gorham 252 Coward v. Baddeley 298 Cowles v. Potts 148 Cowling v. Higginson 264 Cox r. Burbidge 203 v. Glue 308 v. G. VV. Rail. Co 88 v. Lee 137 — v. Mousley 308 v. V. of Paddington .... 200 Coxhead v. Richards 148 Crane v. Price 342 Creach r. Gamble 287 Crespigny r. Wellesley 161 Cresswell v. Hedges 309 Cripps c. Judge 86 Crispe v. Thomas 62 Crossley v. Lightowler 260 Crowhurst v. Amersham Burial Board 17 Crump v. Lambert 221, 230 Cubitt v. Porter 309 Cundy v. Lindsay 319, 320 Curriers' Co. v. Corbett 119 Curtis ;•. Piatt 345 D. D'Almaiue v. Boosey 353 Dalton r. Angus 246, 248 v. South Eastern Rail. Co 102, 217 Daly v. Dublin, &c. Rail. Co 131, 217 Dand v. Sexton 317 Dangerfield v. Jones 343 XXIV TABLE OF CASES CITED. PAGE Daniel v. Ferguson 128 Dansey v. Richardson 30G Davey v. L. & S. W. Rail. Co 207,211 Davies 0. Mann 208 v. Marshall 252 v. Williams 176, 278 Davis v. Comitti 350 v. Duncan 152 v. Eley 292 v. London and North Western Rail. C. 108 V. Russell 287 v. Shepstone 147, 152 v. Snead 148 Dawkins v. Lord Paulet . .143, 288 v. Lord Rokeby .... 144 De Francesco v. Bamum 175 Dean v. Peel 178 Deere v. Guest 127 Degg v. M. R. Co 83 Delaney v. Fox 312 Dent v. Auction Mart Co.. 118, 250, 251 Derry v. Handley 160 Devonshire (Duke of) v. Pat- tinson 272 Dickenson v. Grand Junction Canal Co 259 v. North Eastern Rail. Co 216 Dicks r. Brooks 352 v. Yates 350 Dicker v. Popham & Co 125 Digby v. Thompson 137 Dillon v. Balfour 143 Dixon v. Bell 101, 200 v. Fawcus 114 Dobell v. Stevens 188 Dohson v. Blackmore 279 Doe d. Carter v. Bernard .... 312 d. Johnston v. Bay tup . . 313 ■ d. Knight v. Smith 312 d. Marriot v. Edwards . . 312 d. North v. Webber .... 313 d. Oliver v. Powell 313 Donovan v. Laing, Ltd 65 Dormont v. Furness Rail. Co. 33, 34 Doswall v. Impey 288 Doughty v. Firbank 88 Dublin, &C. Rail. Co. v. Slat- tery 207, 210 Duck v. Bates 355 v. Maye 113 Dugdale v. Lovering 114 PAGE Dunn v. Binningham Canal Co 246 Durrell v. Pritchard 127 Dyner v. Leach 80 B. Eager v. Grim wood 181 Eardley v. Lord Granville 304 Eaton v. Johns 137 Edwards v. Allouez 120 v. Clay 92 v. Dennis 334 v. Midland Rail. Co. . .52, 53, 168 Elliotson v. Feetham 238 Elliott, Exp 29, 31 v. Hall 46, 201 , v. Kemp 324 v. North Eastern Rail. Co 125 Ellis v. Great Western Rail. Co 207 v. Loftus Iron Co 317 v. Sheffield Gas Co 60 Embrey v. Owen 263 Emmens v. Pottle 53, 141 Eno v. Dunn 334 Erskine v. Adeane 223 Evans r. Edmonds 183 V. Manchester, &c. Rail. Co 22 — v. Walton 178 Every v. Smith 308 F. Faldo v. Ridge 305 Falvey v. Stanford 97 Feltham v. England 77 Fenwick v. East London Rail. Co 117 Ferguson v. Earl of Kinnoul. . 142 Fetter v. Beal 106 Filburn v. People's Pal. Co. . . 203 Findon v. Parker 174 Firth r. Bowling Iron Co.. 204, 223 Fitzjohn v. Mackinder 167, 169 Fitzwalter's (Lord) Case 271 Fletcher v. Bealey 125 ■ v. Rylands 38, 233 v. Smith 22, 233 v. Snell 194 TA15LE OF CASES CITED. XXV TAGE Flight v. Thomas 238, 255 Fordham v. L. B. & S. C. E. Co 20G Foreman v. Mayor 48 Fouldos r. Willoughby 316 Foulger v. Newcombe 153 Foulkes v. Met. Dist. Kail. Co. 48 Fowler v. Hollins 318 France v. Gaudet 100 Franklin v. South Eastern Rail. Co 102, 216 Fray v. Fray 137 Frearson v. Loe 347 Frewen v. Phillips 252 Fritz v. Hobson 8, 116 Fryer v. Kynnersley 148 Gadd r. Mayor of Manchester 345 Gallway v. Marshall 158 Gathercole v. Miall 151 Gautret v. Egerton 226 Gay v. Churchill 174 Gayford v. Moffat 225 Geddis v. Bann Reservoir .... 37 Gee v. Pritchard 122 George and Richard, The .... 216 r. Skivington 44 Gibbs v. Cole 345 v. Guild 90, 198 r. G. W. Rail. Co 88 v. Wollecott 271 Gilbert v. Trinity House .... 54 Giles r. "Walker 233 Gilliard v. Loxton 283 Gilpin r. Fowler 149 Gimson v. Woodful 29 Gipps v. Wollecott 274 Gladney v. Murphy 177 Glave v. Harding 252 Glasier v. Rolls 184, 189 Glover v. South Western Rad. Co 102 Goff v. Great Northern Kail. Co 68 Goffen v. Donnelly 144 Goldsmid v. Tunbridge Wells Co 121, 126 Goodfellow r. Prince 339 Goodman v. Mayor of Saltash. 274 Goodtitle V. Alder 308 Gordon v. Cheltenham Rail. Co 128 TAOE Gorris v. Scott 37 Gott r. Gandy 224 Gourley v. Plimsoll 136 Grainger v. Hill 171, 281 Granard v. Dunkin 124 Gr. June. Canal Co. v. Shugar 261 Grand Trunk Rail. Co. v. Jennings 103, 218 Grayw. Gray 120 Great Western Rad. Co. v. Bennett .. 246 of Canada v. Fawcett 227 Greatrex v. Hayward 263 Greaves v. Keene 282 Green v. Duckett 310 Greenland v. Chajilin 208 Greenslade v. Halliday 279 Gregory v. Piper 304 — v. Williams 103 Greville v. Chapman 137 Griffin v. Coleman . . 280, 287, 301 Griffiths v. Dudley (Lord) 85 ■ v. Gidlow 81 v. L. & St. Kath. Dock Co 75, 79, 80 v. Teetgen 1 79 Grote v. Chester & H. R. Co. . 227 Gwinnell v. Earner 223, 225 H. Haddesdon v. Gryssel 317 Hadley v. Baxendale 112 r. Taylor 11 Hall v. Byron 270 V. Johnson 75 v. Lichfield Brewery Co. . 250 Halley, The 50 Hamilton v. Eno 152 Hammack v. White 210 Hammond v. St. Pancras Ves- try 18 Hamon v. Fade 149 Hancock v. Somes 302 Hannam r. Mockett 311 Hardcastle v. S. Y. R. Co. . . 222 Harding v. King 302 Hardman v. N. E. Rail. Co. . . 22 Hardy v. Ryle 94 Hargreave v. Spink 323 Harris v. Brisco 1 74 r. Butler 178 v. Mobbs 21, 27, 204 XXVI TABLE OF CASES CITED. PAGE Harrison v. Anderston Co. . . 343 r. Rutland (Duke of) 121, 305 ■ v. St. Mark's Church. 117 v. Southwark, &c. Water Co. 117, 126, 239 v. Taylor 333, 335 Hart v. Windsor 223 Hartley v. Hindmarsh 302 Harvey v. Maine 282 Harwood v. Great Northern Rail. Co 343 Hatchard v. Mege 130 Hawkesley v. Bradshawe .... 102 Haynes v. King 251 Heart v. Wall 141 Heaven v. Pender 43, 44, 200 Hedges v. Tagg 177 Hedley v. Punkney Co 76 Heming v. Power 156 Henderson v. Broomhead 144 ■ v. Maxwell 349 v. Preston 282 Henwood v. Harrison 151 Hermann- Loog v. Bean 122 Heron v. Rathmines Commrs.. 241 Heske v. Saniuelson 86 Heslop v. Chapman 168 Hetherington v. N . E. Rail. Co. 217 Hewlett v. Cruchley 166 Heyd on and Smith's case .... 99 Hicks v. Faulkner 168 Higham v. Rabett 264 Hill v. Evans 342 v. Metropolitan Asylums Board 126, 234, 235 Hilton v. Woods 173 Hinks v. Safety Co 345 Hinton v. Heather 168 Hiscox r. Greenwood 321 Hodges v. Glass 148 Hodgson v. Sidney 131 Hodkinson v. L. & N. W. Rail. Co 64 Hogg v. Ward 287 Hole v. Barlow 237 v. Sittingbourne, &c 60 Holford v. Bailey 274 Holker v. Porrit 263 Holland v. Worley 120 Hollins r. Fowler 318, 320 — — — r. Verney 266 Holloren v. Bagnall 215 Holmes v. Goring 265 r. Mather 204 PAGE Holt v. Scholefield 156 Hope r. Evered 164 Hopkins v. G. N. R. Co 276 Houlden v. Smith 290 Houldsworth V. City of Glas- gow Bank 193 Hounsell v. Smith 222 Howard v. Bennett 87 Howe v. Finch 86 Huckle V. Money 96 Hughes r. Percival 58 Hull v. Pickersgill 70 Hume v. Oldacre 113 Humphreys r. Brogden 244 Humphries v. Cousins 223 Hunt r. G. N. RaU. Co.. . 143, 149 r. Peake 249 Huntley v. Simpson 168 Hutley r. Hutley 173, 174 Hyman r. Nye 41, 201 I' Anson v. Stuart 137 Inchbald v. Robinson 231 Indermaur v. Dames 16, 229 Irwin r. Brandwood 158 Ivay v. Hedges 228 Jacobs v. Senard 309, 325 Jacomb v. Knight 252 James v. Kerr 1 73 Jameson v. Mid. Rail. Co 113 Jay v. Ladler 340 Jenkins v. Jackson 232 Jenner v. A'Beckett 15S Jennings r. Rundall 55 Jenoure v. Delmege 143 Jewell v. G. Trunk Rail.' .... 71 Job v. Potton 309 Joel v. Morison 71 Johnson r. Emerson 163 v. Lindsay 79 v. Stear 112 Johnstone v. Sutton 167 Joliffe v. Baker 183 Jones v. Boyce 99 v. Chapman 307 ■ v. C. of Liverpool . . 58, 64 ji. Heme 156 v. Thomas 147 TABLE OF CASES CITED. XXV11 K. PAGE Kansas Pac. Rail. V. Mihlman . 94 Kearney v. L. B. & S. C. Rail. Co 227 Keats v. Cadogan 223, 224 Keen r. Millwall Docks Co. . . 88 Keane v. Reynolds 305 Kellard v. Rooke 87 Kelley v. Tinling 151 Kelly v. Sherlock 98, 109 Kemp r. Neville 288 Kendillon v. Maltby 160 Keiisit v. G. E. Rail. Co 260 Kent v. Worthing Local Board 228 Keyse v. Powell 308 Kiddle r. Lovett 58 Kidgell v. Moor 266, 279 Kimber r. Press Ass 145 King v. L. Cab Co 59 ■ v. Rose 321 v. Spurr 59 Kino v. Rudkin 116, 120 Kirk v. Gregory 318 r. Todd 129, 131 Knight v. Gex 58 Knights r. L. C. & D. Rail. Co. 285 Knott v. Morgan 337 Knox v. Hayman 190 Lacy v. Rhys 355 Lafond v. Ruddock 95 Lamine v. Dorrell 329 Lancashire Waggon Co. v. Fitzhugh 318, 323 Lancaster Canal Co. v. Par- naby 226, 227 Lane v. Capsey 278 Lane-Fox v. Kensington, &c. Co 345 Langridge v. Levy . . 44, 187, 189 Lanhig v. N. Y. Cent. R. R. . . 74 Latter v. Braddell 297 Laugher v. Pointer 62 Laughton v. Bishop of Sodor and Man 143 Lawless v. Anglo-Egyptian Cotton Co 147 Lawrence v. Horton 128 v. Obee 304 Lax v. Corp. of Darlington . . 17, 41, 226 Lay v. M. Rail. Co 209, 227 PAGE Lea r. Charrington 164 Leake v. Loveduy 325 Leary v. Patrick 293 Leather Cloth Co. v. American Leather Cloth Co 332, 338 Lee c. Gibbings 123 v. Nixey 214 v. Riley 304 Legge v. Tucker 48 Leggot v. G. N. RaU. Co 217 Le Lievre v. Gould . . 44, 184, 189 Lernaitre v. Davis 249 Lemon v. Simmons 156 Lethbridge v. Kirkman 93 Lewis v. Marling 344 Ley v. Peter 314 Leyrnan v. Latimer 136, 138 Lilley v. Roney 144 Limpus v. General Omnibus Co 65, 67 Linoleum Co. v. Nairn 337 Lister v. Ferryman . . 164, 165, 167 Liverpool, &c. Ass. v. Smith.. 122 L. & B. Rail. Co. v. Truman. . 239, 240 Long v. Keightley 177 Longmeid v. Holliday 42, 45 Losee v. Buchanan 18 ■ v. Clute 42 Lovell v. Howell 76 Low v. Ward 349 Low Moor Co. v. Stanley Co. . . 315 Lumley v. Gye 153, 175 Lush, Re 53 Lynch v. Knight 152, 153 r. Nurdin 209 Lyne, Ex parte 283 Lyon v. Fishmongers' Co 8 M. M 'Andrew v. Bassett 337 M'Gregor v. Thwaites 161 McGift'en v. Palmers, &c. Co... 86 McGlone v. Smith 262 McMurray v. Caldwell , 125 Macdougle v. Knight 145 Mackay v. Commercial Bank of New Brunswick 193 Mackey v. Ford 144 Macleod v. Wakley 151 Magdalena Co. v. Martin 52 Malcomson v. O'Dea 273 MaltonBd. v. MaltonMan. Co. 221 XXV111 TABLE OF CASES CITED. PAGE Manby v. Witt 147 Mangan v. Atterton 209 Manley v. Field 178 Manzo'ni r. Douglas . . 17, 205, 211 Maple & Co. v. Junior Army and Navy Stores 349 Marsden v. Saville Co 344 Marsh v. Keating 30 v. Loader 286 Marshall v. York, &c. Rail. Co. 46 Martin, Ex parte 115 — v. Bannister 115 v. Connahs Quay Co. . . 80 v. G. N. Rail. Co 229 v. Strachan 311 Martindale v. Smith 324 Mason v. Cassar 278 V. Williams 188 Masper and wife v. Brown . . 302 Massam v. Thorley's Food Co. 339 Matthews r. Lond. Tr. Co. . . 209 Maxwell v. Hogg 350 May r. Burdett 203 Mayall v. Higby 351 Mayhew v. Herrick 326 Mayor of Manchester v. Williams 51 Mears v. London and South Western Rail. Co 323 Meigs v. Lester 126 Mellors v. Shaw 79 Membery v. G. W. Rail. Co... 58, 80 Merest v. Harvey Ill Merivale v. Carson 150 Merry weather v. Nixon 1 13 Mersey Docks v. Gibbs . . 33, 48, 54 Metropolitan Assurance Co. r. Tetch 279 Asylum Dist. Bd. r. Hill .... 239, 240 Bank v. Pooley . . 170, 174 Rail. Co. v. Jack- son 212 ■ Saloon Omnibus Co. v. Hawkins 137 Micklethwaite v. Vincent. .121, 305 Miller v. David 158 ■ v. Dell 93 v. Hancock 224 Milligan v. Wedge 59 Millington v. Fox 333 Millward v. Mid. Rail. Co. . . 87 Miss. Cent. R. R. v. Caruth . . 97 Mitchell, Re 331 PAGE Mitchell v. Crasweller 64 V. Darley Main Co. . . 90, 91, 95, 107 — v. Henry 334 Moffatt v. Batemanj 212 Monson v. Tussaud 136, 140 Montgomery v. Thompson 336, 339 Moone v. Rose 282 Moorcock, The 41, 201 Moore v. Crimson 87 v. Met. Rail. Co 67 Morgan v. Gr. Omb. Co 86 v. Hughes 290 V. Hutchins 86 v. Lingen 137 v. Vale of Neath Co. . . 74, 76 Mortimer v. Cradock 112 Mostyn v. Fabrigas 49 Mott v. Consumers' Ice Co. . . 61 Moulton v. Edmonds 93 Moyce v. Newington 330 Moyle v. Jenkins 88 Mullett v. Mason 104 Mumford v. O., W. and W. Rail. Co. , 279 Munday v. Thames, &c. Co. . . 85 Municip. of Pictou v. Geldert.38, 55 Munster v. Lamb 144 Murray r. Hall 309 v. Met. Rail. Co 227 Myers v. Catterson 252 X. National, &c. v. Ward 42 Nat. Prov. P. G. Co. v. Prud. Ass. Co 120, 127 Neill v. Duke of Devonshire . .273, 274 Nelson v. The Liverpool Brew- ery Co 223, 225 Newlands r. Nat. Em. Ace. Ass. Co 65, 193 Newton v. Cubitt 276 Nichols v. Marsland..l8, 21, 22. 233 Nicols v. Pitman 354 Nitrate Phosphate Co. v. Loud, and St. Kat. D. Co.. .19, 21, 25, 27 Norris v. Baker 278 Northampton r. Ward 308 North-Eastern Rail. Co. r. Elliott 246 North Shore Co. v. Pion . .259, 260 TABLE OF CASES CITED. XXIX PAGE Notley v. Buck 329 Nottage v. Jackson 355 Novello v. Sudlow 36 Nuttall v. Bracewell 202 Nyburgk v. Handelaar 325 O. Odger v. Mortimer 151 Olliett v. Bessey 291 Onslow and Whalley's case, Queen v. Castro 292 Onnoud v. Holland 74 Osborn v. Gdlett 12, 32, 217 v. Jackson 87 Oughton v. Seppings 329 Owners of Apollo v. Port Tal- kot Co 201 Owston v. Bank of N. S. Wales 68 Oxley v. Watts 326 Edulgee 324 Paley v. Garnett 86 Palmer v. Paul 125 Panton r. Williams 165 Paris v. Levy , 151 Parker v. F. Avenue Hotel Co. 251 Parkins v. Scott 159 Parry v. Smith 79, 204 Partheriche v. Mason 272 Partridge v. Scott 246 Pasley v. Freeman 187 Patent Bottle Co. v. Seymer . . 343 Patrick v. Colerick 305 Paul v. Summerhayes 304 Peake v. Oldham 156 Pearce v. Scotcher 273 Pearson v. Spencer 265 Peek v. Deny 183, 184, 190 v. Gumey 194 Pendarves v. Munro 251 Penn «;. Ward 300 Percival v. Phipps 124 Perry v. Eames 256 Phillips v. Eyre 50 v. Homfray 129 v. Jansen 158 v. Low 252 v. S.W. Bad. Co... 97, 101, 205 v. Thomas 125 PAGE Pickering v. Do wson 196 Pillott r. Wilkinson 326 Pink v. Fed. of Trades Unions. 123 Pippin v. Sheppard 45 Pirrie V. Yorks. &c. Co 343 Pittard v. Oliver 145 Plating Co. v. Farquharson .. 174 Pollard v. Photo. Co 124, 356 Pope v. Curl 123 Popplewell v. Hodkinson .... 243 Potter v. Faulkner 83 Potts r. Smith 258 Poulton v. London and South Western Bail. Co 66 Powell v. Fall 38 Praed v. Graham 97, 99 Presland v. Bingham 255 Preston v. Luck 116 Pretty v. Bickmore 223 Previdi v. Gatti 88 Prince Albert v. Strange .... 351 Proctor v. Webster 147 Prudential Ass. Co. v. Knott. . 122 Pullman v. Hill & Co 141 Pursell v. Horn 297 Pym v. Great Northern Bail. Co 216 Q. Quarman v. Burnett 59 Quartz Hill Co. v. Beall 122 v. Eyre 163 R. R. v. Burdett 141 — v. Huggins 203 — v. Jackson 285 — v. Leroy 292 — v. Light 288 — v. Pease 241 — v. Revel 292 — v. Rosewell 278 — v. Wheeler 342 Radley v. London and North Western Rail. Co 207 Ramuzy. Southend L. Board.. 121 Rapier v. Lond. Tramways Co. 241 Rawlings v. Till 297 Rayner v. Mitchell 63 Read v. Coker 296 v. Edwards 322 XXX TABLE OF CASES CITED. PAOE Bead v. Great Eastern Rail. Co. 217 Reade r. Conquest 353 r. Lacy 353 Reddaway v. Bentham 336 Reddie v. Scoolt 179 Reed v. Nutt 302 Reese River Co. v. Smith .... 161 Reeves v. Penrose Ill Reinhardt v. Mentasti 235 Revis v. Smith 288 Rhodes v. Smethurst 95 Rhosina, The 41 Rich v. Basterfield 225 Richards v. Butcher 338 v. Jenkins 312, 325 v. Rose 247 Richardson v. Mellish 106 v. Met. Rail. Co. . . 206 v. North Eastern Rail. Co 202 Riding v. Smith 155 Rigby v. Hewitt 179 Rist v. Faux 178 Roberts v. Roberts 155 v. Rose 278 Robertson ?>. Hartopp 270 Robinson v. Duleep Singh .... 269 v. Jones 141 . v. Kelvert 231 Robson r. Whittingham 251 Roope v. D'Avigdor 28 Ross v. Rugge-Price 36 Roswell v. Pryor 225 Rounds v. Del. Railroad .... 70 Rourke v. White Moss Co 64 Rowbotham v. Wilson 243 Royal Aquarium Co. v. Parkin- son 145, 146 Ruddiman v. Smith 65 Russell v. Cowley 342 . v . Watts 252, 254 Rust v. Victoria Dock Co 99 Ryan v. Clark 308 Rylands v. Fletcher .... 20, 21, 22 S. Sadler v. S. Staffs. Trams. Co. 227, 299 Salford (Mayor of) v. Lever . . 191 Salomans v. Knight 123 Salvin v. N. Brancepeth Co. . . 221 Sanders v. Stuart 102, 1 13 v. Teape 304, 317 PAGE Sandf ord v. Clarke 224 San. Commrs. of Gibraltar v. Orfila 33, 37, 241 Saunders v. Merry weather . . 312 Savory v. London Elect., &c. Assoc 125 v. Price 345 Sayers v. Collyer 116 Sayre v. Moore 351, 352 Scattergood v. Silvester 330 Schneider v. Heath 196 Scholes c. Brook 45 Schove v. Schminke 350 Schultze v. G. E. R. Co 113 Scott v. Dock Co 210, 211 r. Nixon 93 v. Pape 251 ■ ■ v. Sampson 109 v. Shepherd 23 v. Stansfield 144, 288 Seaman v. Netherclif t 144 Searle v. Prentice 40 Searles v. Scarlett 140 Seear v. Lawson 174 Seigert v. Findlater 337 Senior v. Ward 80 Seroka v. Kattenburg 56 Serrao v. Noel 1 1 ' > Seward v. The Vera Cruz 216 Seymour v. Greenwood 69 Shaffers v. Gen. Steam Co. . . 87 Sharp v. Powell 25 Sharpe /'. Hancock 262 • v. Foy 53 Shepheard v. Whitaker 138 Shepherd v. Midland Rail. Co. 25, 229 Shrosbery v. Osmaston 168 Silverton v. Marriott 224 Simmons v. Milligen 286 v. Mitchell 157 Simpson v. Holliday 345 v.L.&N.W.Rail.Co. 113 v. Savage 279 Simson r. Gen. Om. Co 204 Sinarer Machine Co. v. Wilson 333, 335 Manufacturing Co. V. Loog 337 Singleton v. Eastern Counties Rail. Co 209 Six Carpenters' case 306 Sketton v. London and North Western Rail. Co 207 Slater v. Swann 321 TABLE OF CASES CITED. XXXI PAGE Smith v. Andrews 273 ■ r. Baker and Sons .... 82 v. Chad wick 183, 188 v. Cook 204 — v. Hughes 196 v. Lloyd 315 • v. Miller 323 • v. Smith 120 v. Thackerah 243 v. Webber 312 Snagg v. Gee 156 Snowden v. Baynes 87 Soltauv. DeHeld 117, 231 Somerset (Duke of) v. Fogwell 272 Southcote v. Stanley 228 Southee v. Denny 158 Southey v. Sherwood 348 Spackman v. Foster 93 Spark v. Heslop 101 Speight v. Gosnay 154 Spiering v. Andrea 159 Spiers v. Browne 352 Spill v. Maule 142 Spokes v. Banbury Local Board 126 Spor v. Green 91 St. Helens Co. v. Tipping .... 235 Stanford v. Hurlstone 121 Stanley v. Powell 17 Stapley v, London, Brighton and South Coast Bail. Co. . . 207 Stedman v. Smith 309 Stephens, Ex parte 331 Stevens v. Peacocks 38 v. Sampson 145 ■ v. Woodward 65 Stiles v. Cardiff Steam Nav. Co. 204 Stockdale v. Hansard 143 v. Onwhyn 348 Stone, Ex parte 132 — v. Hyde 88 Storey v. Ashton 64 Straight v. Bum 258 Street v. Gugwell 234 v. Lie. Vict. Society . . 141 v. Union Bank, &c. . . 10 Stroyan v. Knowles 247, 249 Stuart v. Bell 147 Stubley v. London and North Western Bail. Co 207 Submarine Tel. Co. v. Dickson 50 Sutcliffe v. Boothe 259 Sutton v. Moody 317 Swainson v. North Eastern Bail. Co 78 Swansborough v. Coventry . . 252 PAGE Swift v. Jewsbury 188 Sykes v. N. E. Bail. Co 217 v. Sykes 339 Tancred v. Allgood 323 Tapling v. Jones 258 Tarry v. Ashton 60, 223 Tawes v. Knowles 252 Taylor v. Ashton 183 v. Hawkins 147 v. Whitehead 305 Terry r. Hutchinson. .178, 179, 180 Theed v. Debenham 251 Thomas v. Powell 110 v. Quartermaine . 80, 85 v. Winchester 43 Thompson v. Barnard 156 Thorley's Food Co. v. Massam 122 Thorn v. Worthing Co 343 Thoroughgood v. Bryan 208 Thorpe v. Brumfitt 266 r. Smallwood 324 Thrussell r. Handyside 82 Tichborne v. Mostyn 291 Tilbury v. Silva 275 Tillett v. Ward 17,304 Timothy v. Simpson 284 Tindale v. Bell 105 Tinsley v. Lacy 353 Tipping c. St. Helens Co 117, 221, 230 Todd v. Flight 223, 225 Tolhausen v. Davies 203 Tollit v. Shenstone 41 Tompson v. Dashwood 150 Toomey v. London & Brighton Bail. Co 210 Trade Aux. Co. v. Middles- brough, &c. Ass 350 Tredegar Co. v. Owners of Calliope 201 Tripp r. Frank 276 Truman v. L. B. & S. C. B. Co. 126 Trustees, &c. Co. v. Short .... 93 Tuberville v. Savage 297 Tuck v. Priester 356 Tuff v. Warman 207, 208 Tullidge v. Wade. .98, 108, 181, 303 Tunney V. M. Bail. Co 76 XXX11 TABLE OF CASES CITED. PAGE Turner v. Doe 313 ■ v. Great Eastern Rail. Co 78 v. Hunt 321 Turton v. Turton 339 Tussaud v. Tussaud 335 U. United Merthyr Co., Ee. 100 Vallate v. Falle 36 Van Duzer's Trade Mark, Ee. . 331 Van Heyden v. Neustadt .... 347 Vaughaii v. Menlove 200 v. Watt 326 Vaughton r. Bradshaw 302 Venables v. Smith 59 Vere r. Earl Cawdor 322 Verry v. Watkyns 181 Vicars v. Wilcox 153 Vickers v. Siddell 346 Victorian Bail. Co. Mines v. Coultas 101 Victuallers, &c. Co. v. Bing- ham 331, 337 Vine, Ex parte 131 W. Waddell r. Blockey 113 Wainf ord v. Heyl 56 Waite v. N. E. Bail. Co 210 Wakelin v. L. & S. W. Bail. Co 210, 211 Wakeman r. Bobinson 17 Wakley v. Cooke 138 Walker v. Brewster 231 ■ v. Brogden 137 ■ v. G. N. Bail. Co 52 Wall v. Taylor 355 Waller v. Loch 148 Walsh v. Lonsdale 313 v. Whiteley 86 Walter v. Howe 350 v. Selfe 231 Walton v. Waterhouse 313 PAGE Warburton v. Great Western Bail. Co 78 Ward v. Eyre 321 v. Hobbs 194 v. Weeks 160 Warne v. Seebohm 353 Warwick, &c. Canal v. Burman 116 Warwick v. Foulkes 108 Wason v. Walter 144 Waterman v. Ayres 331, 337 Watkin v. Hall 136, 142, 159 Watkins v. Great Western Bail. Co 207 Watson v. Holliday 132 Webb v. Beavan 152 v. Bird 256 v. Faternoster 253 Weir's Appeal 126 Weir v. Bell 183 Welch v. Knott 335 Weldon r. Neal 95 Wellock v. Constantine 29, 31 Wells v. Abrahams 28 r. Head 322 Wenman v. Ash 142 Wennhak v. Morgan 142 West r. Smallwood 290 Weston v. Beeman 168 Whalley v. L. & Y. Bail. Co. . 233 Whatley v. Holloway 87 Wheaton v. Maple & Co 256 Wheeldon v. Burrows . . . .253, 254 Wheeler v. Whiting 300 White v. Bass 253 v. France 16, 204, 229 v. Spettigue 29 Whitehouse v. Fellows 94 Whiteley v. Pepper 64 Whiteman v. Hawkins 40 Wiggettw. Fox 75 Wild r. Waygood 87 Wilkinson v. Haygarth 309 Williams v. Clough 80 v. Smith 140 Williamson v. Freer 141, 149 Wilson v. Barker 70 v. Newport Dock Co. . . 99 v. Queen's Club 252 v. Tumman 70 v. Waddell 10, 21, 233 Wimbledon Conservators v. Dixon 264 Winch v. Thames Cons 34 Wingate v. Waite 290 Winter v. Brockwell 253 TABLE OF CASKS CITED. XXX111 PAGE Winterbottom v. Lord Derby.. 8, 11 v. Wright 41 Withers v. North Kent Rail. Co 201, 227 Wood v. Boosey 353 v. Durham (Lord) 130 v. Waud 260 Woodermau v. Baldock 32-1 Worth v. Gilling 204 Wotherspoon r. Currie 334 Wren v. Weild 142 Wright v. Fairfield 131 v. Howard 259 P. London and North Western Rail. Co... 83 PAGE Wright V. Pearson 204 v. Tallis 349 Wyatt r. White 164 Wyld v. Pickford 324 Yarmouth v. France 81, 86 Yates v. Jack 250, 257 Young v. Fernie 343 r. Spencer 279 Yungmann v. Briesmann .... 322 V. INTRODUCTION. INTRODUCTION. " The maxims of law," says Justinian, " are these : To live honestly, to hurt no man, and to give every one his due." The practical object of law must necessarily he to enforce the observance of these maxims, which is done by punishing the dishonest, causing wrongdoers to make reparation, and insuring to every member of the community the full enjoy- ment of his rights and possessions. Infractions of law are, for the purposes of justice, divided into two great classes : viz., public and pri- vate injuries. The former — commonly called crimes — consist of such offences as, aiming at the root of society and order, are considered to be injuries to the community at large ; and as no redress can be given to the community, except by the prevention of such acts for the future, they are visited with some deter- rent and exemplary punishment. Private or civil injuries, on the other hand, are such violations or deprivations of the legal rights of another, as are accompanied by either actual or pre- sumptive damage. These, being merely injuries to private individuals, admit of redress. The law, therefore, affords a remedy by forcing the wrong- doer to make reparation. U. B % Z INTRODUCTION. But as injuries are divided into criminal and civil, so the latter are subdivided into two classes, of in- juries ex contractu and injuries ex delicto — the former being such as arise out of the violation of duties undertaken by contract, and the latter (commonly called torts) such as spring from the violation of duties imposed by law, to the performance or ob- servance of which every member of the community is entitled as against the world at large. Although, however, these divisions are broadly correct, the border line between them is by no means well defined. Indeed, from the very nature of things, each division must to some extent overlap another one. Thus the same set of circumstances may con- stitute a crime, a tort, and a breach of contract. At the same time, as those circumstances may be re- garded from each of the three points of view, no confusion ensues from the fact that they cannot be exclusively located in any one of the three classes. In this work an attempt will be made to state the principles which the law applies to those facts which constitute torts. PAET I. EULES RELATING TO TORTS IN GENERAL. b2 «.'t/ r-e ( /TV- Chapter I. OF THE NATURE OF A TORT. Art. 1. — Definition of a Tort. A Tort is an act or omission which, i ndepen - d ent of contr act, is unauthorized by law, and results either in the infringement of some absolute right to which another is entitled, or in the infliction upon him of some substantial loss of money, health, or material comfort beyond that suffered by the rest of the public, and which infringement or infliction of loss is remediable by an action for da mag es. No one has yet succeeded in formulating a per- fectly satisfactory definition of a Tort ; indeed, it may be doubted whether a scientific definition, which would at the same time convey any notion to the mind of the student, is possible. A tort is described in the Common Law Procedure | Act, 1.852, as " a wrong indepen dentof contract /' I ^C If we use the word " wrong," as equivalen^tcHffSh^« | w*^, tion of a right recognized and enforced by law by means of an action for damages, the definition is sufficiently accurate, but scarcely very lucid ; for it rt8.e*r 6 TORTS IN GENERAL. gives no clue as to what constitutes a wrong or violation of a right recognized and enforced by law. A recently published text book (a), by a distin- guished American Lawyer, defines a tort as a breach (\ of duty fixed b y law^an d redressable by a suit for damagesj but this dermrtion does not seern~to~con- I \ voy much information to the reader, and confessedly requires an elaborate explanatory dissertation. Perhaps Sir Frederick Pollock, in his work on torts (i), gives the most complete definition; but I cannot help thinking that, excellent as it is, the student is more likely to grasp the legal meaning of the word " tort " from the brief definition which I have attempted. It will be perceived from this, that three distinct „„ ., • factors are necessary to constitute a tort according to if our law. First, there must be some act or om ission on the part of the person committing the tort (the ''^u*? if defendant), unau thorized by law, and not being a .tuu-alt breach of some duty undertaken by contract. a sjucU Secondly, this wrongful act or omission must, in 'y«rj y some way, inflict an injury, special, private, and "ZaZ"/L peculiar to the plaintiff, as distinguished from an tt£S£t injury to the public at large; and this may be either by the violation of some right in rem, that is to • Khv say, some right to which the plaintiff is entitled as ^w&rtau* against the world at large, or by the infliction on him of some particular and substantial loss of money, health, or material comfort. Thirdly, the wrongful (a) Bigelow's Elements of the Law of Torts. (6) See Pollock on Torts, p. 19. ^^ A r/« DAMNUM ABSQUE INJURIA. 7 act injurious to the plaintiff must fall within some class of eases for which the recognized legal remedy is an action for d amage s. It is desirable that the effect of the absence of any one of these three factors should be examined a little - more closely. *££ ?£ One often sees it stated in legal works that &Y damnum absque injuria is not actionable, but that an injuria sine damno is. This jingle has probably ^v££, puzzled many generations of students, but it comes ^"*" &*'**£ to very little when dissected. * L - 7,> -' 2 Rr - ;]1(j )- T1 i e remedy of the publiiLJ^hy_jndii4ment, if the unlawful act amounts to so serious a dereliction of duty as to constitute an injury to the public. But if, in addi- t tion to the injury to the public, a special, peculiar, and substantial damage is occasioned to an individual, ( then it is only just that he should have some private redress (see Lyon v. Fishmongers' Co., 1 App. Cas. 662 ; and Fritz v. Ilobson, 14 Ch. I). 542). It will, therefore, be seen that there must be an un- authorized act or omission causing either an infringe- ment of some general right, or inflicting some sub- stantial private damage. But in addition to this, the injury must fall within some class recognized N0N-ACTIONAI5LE TORTS. J by law, and for which an action for damages is the , appropriate remedy. For instance, murder is an act ' unauthorized by law, and it may inflict most cruel and particular damage on the family of the mur- , dered man ; but, nevertheless, that gives them no civil remedy against the murderer. So, if one libe ls / a dead man, his children have no ri ght to redress, j although it may cause them to be cut off from all . -> ° . J ft** tori *o decent society. So a breach of trust, although.^ ^o « * certainly an act unauthorized by law, and usually followed by private and particular loss to the bene- ficiaries, does not fall within the class of civil injuries j^^ ^ . remediable by an action for damages, and therefore > /t^*^ c anno t properly be said to const itute a tort. It **" would appear that since the abolition of the action j of crim. von. the same remarks apply to adultery, j and consequently that subject is omitted from this work. Having now explained the nature of the elements which are essential to the constitution of a tort, the attention of the student is invited to a few illus- trations. (1) If one trespass upon another's land without lawful excuse, that is an interference with an abso- | lute legal right (viz., the right of exclusive posses- sion of a man's own land). Moreover, being without excuse, it is an act not authorized by law, and conse- | quently the two elements of an unauthorized act and the consequent infringement of a legal right are present, and an action for tort may be maintained. But if the trespass were committed in self-defence, in order to escape some pressing danger, then no rvv'^rH; hcOJiod 10 TORTS IN GENERAL. action would lie ; for the law authorizes the commis- ***" sion of a trespass for that purpose. Consequently, although in such a case there is an invasion of the right of exclusive possession, the other element of a tort — viz., an act not authorized by law — is absent, and therefore no tort is committed. (2) Again, if I own a shop which greatly depends for its custom upon its attractive appearance, and a company erect a gasometer hiding it from the public, I cannot sue them ; because, although my trade may be ruined by the obstruction, yet the gas company are only doing an act authorized by law, namely, building upon their own land {Butt v. Imperial Gas Co., L. R., 2 Ch. App. 158). Although, therefore, the element of substantial damage is present, the element of an unauthorized act is not ; it is a case of damn um absque injuria, and no tort is committed (see also Street v. Union Bank, 8fc, 33 W. R. 901). (3) So where a landowner by working his mines caused a subsidence of his surface, in consequence of which the rainfall was collected and passed by gravi- tation and percolation into an adjacent lower coal h-udtii mme > it was held that the owner of the latter could sustain no action. For the right to work mines is a right of property, which, when duly exercised, begets no responsibility. The damage suffered by the ad- jacent owner was therefore a damnum absq ue injuria {Wilton v. Waddell, 2 App. Cas. 95). (4) A legally qualified voter duly tenders his vote to the returning officer, who wrongly refuses to register it. The candidate for whom the vote was tendered gains the seat, and no loss whatever, either Wn ILLUSTRATIONS OF DEFINITION OF TORT. 11 in money, comfort, or health, is suffered by the rejected voter ; yet his absolute right to vote at the election is infringed, and that by an unauthorized &■ rak** act of the returning officer, and hence we have the two elements sufficient to support an action of tort (Ashb y v. White , 1 Sm. L. C. 251). This is an /fsify *- j instance of inju ria sine d amno. (5) A man erects an obstruction in a public way. The plaintiff is delayed on several occasions in pass- ing along it, being obliged, in common with every- st*jy» one else who attempts to use the road, either to ' tK ^ u/ ^ e pursue his journey by a less direct route, or else to remove the obstruction. He, nevertheless, cannot maintain an action , because, although the element of an unauthorized or unlawful act on the part of the ^'*-A*^ defendant is present, yet there is no iny^ion_of an absolute private^ right, and no sub stantial damage peculi ar to th e plaintiff beyond that suffered by the rest of the public {Winterbottom v. Lord Derby, L. R., 2 Ex. 316). (6) The defendant leaves an unfenced hole upon premises adjoining a highway. The plaintiff, in passing along the highway at night, falls into the IT£v - hole, and is injured. Here both elements of a tort r^? are present; for the law does not authorize the = To*\ leaving of an unfenced hole adjacent to a highway, and likely to be a danger to persons lawfully using __ it, and the plaintiff clearly suffers a special and t substantial damage beyond that suffered by the rest of the public, and accordingly he can recover damages (Hadley v. Taylor, L. II., 1 C. P. 53). (7) The plaintiff kept a coffee-house in a narrow gvtC 12 TORTS IN GENERAL. street. The defendants were auctioneers, carrying on an extensive business in the same neighbourhood, having an outlet at the rear of their premises next adjoining the plaintiff's house, where they were constantly loading and unloading goods into and from their vans. The vans intercepted the light from the plaintiff's coffee-house to such an extent that he was obliged to burn gas nearly all day, and access to his shop was obstructed, and the smell from HuAicuta. h ^ e }2 0rses ' manure made the house uncomfortable. * t rf f I Here there was an unauthorized state of facts consti- ,■ ,. i£rr "tT^ting a public nuisance, but there was also a direct and substantial private and particular damage to the plaintiff, beyond that suffered by the rest of the public, so as to entitle him to maintain an action {Benjamin v. Storr, L. R., 9 C. P. 400). (8) A person is guilty of negligence, or violence, whereby the plaintiff's servant is injured, and inca- pacitated from performing his usual duties. Here the loss of service is a substantial deprivation of comfort sufficient to give the plaintiff a right of action (Ber- ^'"H* ringer v. G. E. R. Co., 4 C. P. I). 163). There is, however, a curious exception to this, viz., that where M /•// the servant is killed on the spot, no action lies by the ~ T^ L master (Osbom v. Gillett, L. R., 8 Ex. 88). Art. 2. — Classification of unauthorized Acts or Omis- sions constituting one clement of a Tort. Acts unauthorized by law, and which, when coupled with the invasion of a right or the CLASSIFICATION OF WRONGFUL ACTS, ETC. 13 infliction of substantial damage, constitute a tort, may be conveniently divided into the following classes, viz. : — / (a) Maljciatta acts, or acts so reckless as to imply malice; • ■ r- Mo-tui hvi VOLITION AND INTENTION, 17 K (3) The defendants, a burial board, planted on their own land, and about four feet distant from their boundary railings, a yew tree, which grew through and beyond the railings, so as to project over plaintiff's meadow. The plaintiff's horse, feeding jk,^^ in the meadow, ate of that portion of the tree which projected, and died of the poison contained therein. ^ The tree was planted and grown with the kno wledge iW4 of the defendants : — Held, that the defendants were [ / ™"^>C*. liable {Crowhurst v. Ame rsham Buri al Board, 4 Ex. , — - , D. 5 ; and see L ax v. Corp. of Darling ton, 5 Ex. D. J?^X 28; but distinguish Wilson v. Newberry, L. R. 7 ( g ence . The plaintiff had worked his mines up to a spot where there were certain old passages of disused mines ; these passages were connected with vertical shafts, communicating with the land above, which had also been out of use for years, and were ap- parently filled with marl and earth of the surrounding land. Shortly after the water had been introduced into the reservoir, it broke through some of the vertical shafts, flowed thence through the old passages, and finally flooded the plaintiff's mine. /. T It was contended on behalf of the defendant that > i . there was no negligence on his part, and that, if he Y were held liable, it would make every man respon- sible for every mischief he occasioned, however roir involuntarily, or even unconsciously, whereas he ut^idiud^ contended that knowledge of possible mischief was of the very essence of the liability incurred by occasion- ing it. The House of Lords, however, held the defendant to be liable on the ground that " a person I who, for his own purposes, brings on his land, and collects and keeps there, anything likely to do mis- • - VOLITION AND INTENTION. 21 chief if it escapes, must keep it at his peril, and if he does not do so is prima facie responsible for all the damage which is the natural consequence of its escape." It therefore appears that the act which was not authorized by law was the allowing the water to escape, and whether this was the result of negligence, or whether it was the result of a latent and undis- covercd defect in the engineering works, was quite immaterial. The escape of the water was caused by something of which the defendant wa s ignoran t, not. by something altogether beyond his control or voli-' tion,-like a visitation of Providence or the act of a' third party. As Mellish, L. J., said in Nichols v. Mdrsland (2 Ex. I). 5), "if indeed the damages were caused by the act of the party without more — as where a man accumulates water on his own land, but, owing to the peculiar nature or condition of the soil, the water escapes, and does damage to his neighbour — the case of Rylands v. Fletcher establishes that he must be held liable." But where there is something more — either the act of God or of a third party — which is the proximate cause of the damage, then Rylands v. Fletcher has no application. This of course, however, presupposes that the damage has / - been solely caused by the act of Grod or of a third fa i$oh t party, and that the defendant has not contributed to ^^V< it by some distinct breach of duty (as in The Nitro- '"^^W * Phosphate Co. v. London and St. Katharine's Dock Co., ■ '. ** <*cA cited above) (Harris v. Mobbs, 3 Ex. B. 268 ; Clark v. Chambers, 3 Q. B. D. 327). The case of Rylands v. Fletcher must also be carefully distinguished from that of Wil son v. Waddcll (2 App. Cas. 95, and supra, p. 10), in which the defendant had not brought GUoi v rrcMu* 22 TORTS IN GENERAL. water on to his land, but had merely so used his land that it collected the rainfall. One was a non-natural user, and the other a natural user in accordance with the ordinary rights of property. (And see Giles v. Walker, 24 Q. B. D. 656 ; and distinguish Snow v. Whitehead, 27 CD. 588). The distinction between Uplands v. Fletcher on the one hand, and Nichols v. Marsland and Box v. Jubb on the other, is no doubt subtle and difficult for the lay mind to grasp ; but it shortly comes to this, that a man is not liable for the acts of God or a third party, unless (1) he has committed some distinct breach of duty, or (2) where he has taken upon him- self to construct a dangerous work, and such work is in fact defective, whether owing to the constructor's negligence or not ; for having taken upon himself to make it, he must be taken to guarantee that it is fit for the purpose for which it is made (see also Hard- man v. N. E. R. Co., 3 C. P. D. 168 ; Fletcher v. Smith, 2 A])]). Cas. 781 ; and Evans v. Manchester, 8fc. B. Co., 57 L. J., Ch. 153). It is, however, appre- hended that the strictness of the obligation must vary in proportion to the risk. For instance, one who brought a gunpowder magazine on to his land might well be held liable for the consequences of an explosion caused by a thunderstorm following an exceptionally heavy gale, which had blown down his lightning conductors. (Sed quaere.) (10.) A person wrongfully threw a squib on to a stall, the keeper of which, in self-defence, threw it off again ; it then alighted on another stall, was again thrown away, and, finally exploding, blinded the. plaintiff. The liability of the persons who threw it O^M^/ REMOTENESS OF DAMAGE. 23 away from their stalls in self-defence, was not the question before the court, but a dictum of Chief Justice De Grey is a good illustration of the rule. He said, "It has been urged, that the intervention 2^^ of a free agent will make a difference ; but I do not consider Willis and Ryal (the persons who merely threw away the squib from their respective stalls) as free agents in the present case, but acting under Cfi *^- S , a compulsive necessity for their own safety andt* ^:" v ° self-preservation" ( Scuff v. Shepherd , 2 W. Bf. 894). The first illustration to Art. 1 (supra) is another example of the rule that a person acting under the influence of pressing danger is not a voluntary agent. liKsfmt^ lki**^L /^-y Art. 4. — Of the connection of the Damage with the unauthorized Act or Omission. There will be no tor t where the loss or damage is such as would n ot usu ally be found to follow from the unauthorized act or 1 omission, unless it can be shown that the defendant knew, or had reasonable means of 'knowing, that consequences not usually re- sulting from such an act or omission were, hy reason of some existing cause, likely to intervene so as to cause such damage. (1) The defendant, in breach of the Police Act, (2 $• 3 Vict. c. 47, s. 54), washed a van in a public street, and allowed the waste water to run down the gutter towards a grating leading to the sewer, about 24 TORTS IN GENERAL. twenty-five } r ards off. In consequence of the ex- treme severity of the weather, the grating was obstructed by ice, and the water flowed over a por- tion of the causeway, which was ill-paved and un- 1 even, and there froze. There was no evidence that \ the defendant knew of the grating being obstructed. The plaintiff's horse, while being led past the spot, slipped upon the ice and broke its leg. In giving judgment in an action brought in respect of this damage, Chief Justice Bovill said : " No doubt one who commits a wrongful act is responsible for the ordinary consequences which are likely to result therefrom ;" but " where there is no reason to expect it, and no knowledge in the person doing the wrong- ful act, that such a state of things exists as to render the damage probable, if injury does result to a third person it is generally considered that the wrongful orHtua* a °t is n ot the proximate cause of the injury, so as to u^-u^cvl «*■■ render the wrongdoer liable to an action. If the tl r*" drain had not been stopped, and the road had been [ y. fowiK. in a proper state of repair, the water would have — passed away without doing any mischief to anyone. Can it then be said to have been the ordinary and probable consequence of the defendant's act that the water should have frozen over so large a portion of the street so as to occasion a dangerous nuisance ? I think not. There was no distinct evidence to show the cause of the stoppage of the sink or drain, or that the defendant .knew it was stopped. He had a right, then, to expect that the water would flow down the gutter to the sewer in the ordinary course, and, but for the stoppage (for which the defendant is not responsible), no damage would have been done." IM^f' WHERE DAMAGE APART FROM TORT. 9.-» And accordingly judgment was given in favour of Sfra^ the defendant ( gharp v. Powell, L. R., 7 C. P. 258). fi^ (2) But where water, which had trickled down from a waste-pipe at a railway station on to the platform, had become frozen, and the plaintiff, a passenger, stepped upon it and fell and was injured, "~rr the court held the defendants liable, on the ground, probably, that the non-removal of a dangerou s __ l! ■nuisance, like ice, from their premises, was the proxi- mate cause of the injury {^Jiepherd v. Mid. R. Co., cited by plaintiff arguendo ; Sharp v. Powell, supra). Art. 5. — Where Damage would hare been suffered in the absence of unauthorized Act or Omission. Where the elem ents of a tort are present, i the fact that similar damages would have been suffered by the plaintiff, even if the wrongful act or omission had not been done or made by the defendant, docs not excus e the latter. It is, however, open to him to show, if he can, that there is a substantial an d ascert ain- \ able portion of the damages fairly to be attri- ^ butecl solely to the other circumstances, and in, that case he is entitled to a proper deduction in that respect (see Nitro-Phosphate Co. v. Lon- don and St. Katharine' 's Dock Co., 9 Ch. D. 503). Thus where it was the duty of the defendants to keep a river wall at a height of four feet two inches 26 TORTS IN GENERAL. above Trinity high water mark, and they only kept it at a height of four feet, and an extraordinary tide rose four feet five inches, and flooded the plaintiffs' works ; it was held, that as the defendants had committed a breach of duty in not building their wall to the proper height, and some damage having been suffered in consequence thereof, an action lay against them, although even if the wall had been of the required height, the tide would still have over- flowed it. James, L. J., said : — " Suppose that the same damage would have been done by the excess of height of the tide if the wall had been of due height as has been done ; yet if the damage has been done by reason of the wall not being of due height, the defendants are liable for that damage arising from that cause, and are not excused because they would not have been liable for similar damage if it had been the result solely of some other cause ; and moreover, long before the tide rose even to four feet, it began to flow over towards and into the plaintiffs' works, and of course the defendants cannot escape their liability for the damage so occasioned, because the tide afterwards went on swelling and swelling, even if it could be shown that the same damage would have been occasioned by that additional height of water if the wall of the defendants had been in proper condition. They have been guilty of neglect, and had done damage before the extra height had been reached, and their liability to the plaintiffs was complete when the damage was done. . . . No doubt if the court can see on the whole evidence [as they could not see in that case] that there was a substan- TORTS WHICH ARE FELONIES. 27 A tial and ascertainable portion of the damage, fairly to be attributed solely to the excess of the. title above the proper height which it was the duty of the defendants to maintain, occurring after the excess had occurred, and which would have happened if the defendants had / done their duty, then there ought to be a proper I deduction in that respect" {Nitro- Phosphate Co. v. London and St. Katharine's Dock Co., 9 Ch. D. 526; and see also Clark v. Chambers, 3 Q. B. D. 327, and Harris v. Mobbs, 3 Ex. I). 263). Art. 6. — To what Extent Civil Remedy interfered with where the unauthorized Act or Omission constitutes a Felony. (1) Where any un authorized act or omis- sion is, or gives rise to consequences which make it, a felony, and it also ^violates a private right, or causes private and peculiar damage to an individual, the latter has a good cause of action. (2) But (semble) the policy of the law will not allow the person injured to seek civil redress, i^Jie has failed in his duty of bring- ing, or endeavouring to bring, the felon to justice. (3) Where the offender has been brought to justice at the instance of some third per son 28 TORTS IN GENERAL. injured by a similar offence, or where prose- / cution is impossible by reason of the death , of the offender, or (?) by reason of his escape / from the jurisdiction before a prosecution could by reasonable diligence have been commenced, the right of acti on is not sus- pended (per Baggallay, L. J., Ex parte. Bull, re Shepherd, 10 Ch. D. 673 ; and see per Cockburn, C. J., Wells y. Abrahams, L. R., 7 Q. B. 557). But although this would seem to he the rule, it is extremely doubtful how it cau be enforced. It is no ground for the judge to direct a nonsuit (Well* v. Abraham*, sup.). It cannot be raised by the procedure now substituted for demurrer {Roope v. D'Avigdor, 10 Q. B. B. 412) ; nor by plea, because the effect of that would be to allow a party to set up his own criminality. But it has been suggested, that if an action were brought against a person, who was either in the course of being prosecuted for felony, or was liable to be prosecuted for felony, the summary jurisdiction of the court might be invoked to stay the proceedings, which would involve an undue use, probably an abuse, of the process of the court (per Cockburn, C. J., Wells v. Abraham*, sup.). And in the same case, Blackburn, J., said, " I do not see how a plaintiff can be prevented from trying his action, unless the court, acting under its summary jurisdic- tion, interfere." ..." From the time these eases were decided, there is no reported instance of TORTS WHICH ARE FELONIES. 29 the court having interfered to stop an action until we come to Crimson v. Wbodful, 2 C. 8f P. 41. That case went to this extent, that where a horse had been \ stolen by A., and B. afterwards had the horse, the owner could not afterwards bring an action to recover it from B., unless he had prosecuted A. But in / White v. Spettigue (13 M. cy W. 603) that was ex- / pressly overruled. The last case is Wellock v. Con- stantine, 32 L. J., C. P. 285." ..." That case, I think, cannot be treated as an authority ; " . . . " to say that because it was for the interest of the public, the action should be stayed until the indict- ment was tried, and for this purpose to nonsuit the plaintiff, or to direct the jury to find a verdict for the defendant upon issues not proved, seems to me to be erroneous." In Ex parte Ball, re Shepherd (10 Ch. D. 667), Bramwell, L. J., said : " There is the judgment in Ex parte Elliott (3 Mont. 8f A. 110), besides the expressed opinion for centuries, that the felonious origin of a debt is in some way an impediment to its enforcement. But in what way ? I can think of only four possible ways: — 1. That no cause of action arises at all out of a felony. 2. That it does not arise till prosecution. 3. That it arises on the act, but is suspended till prosecution. 4. That there is neither defence to, nor suspension of the claim by, or at the instance of the felon, but that the court of its own motion, or on the suggestion of the crown, should stay proceedings till public justice is satisfied. It must be admitted that there are great difficulties in the way of each of these theories. That the first is not true is 30 TORTS IN GENERAL. shown by Marsh v. Keating (1 Bing. N. C. 198), where it was held, that prosecution being impossible, a felony gave rise to a recoverable debt. It is difficult to sup- pose that the second supposed solution of the problem is correct. That would be to make the cause of action the act of the felon plus a prosecution. The cause of action would not arise till after both. Till then, the statute of limitations would not run. In such a case as the present, or where the felon had died, it would be impossible. And it is to be observed that it is never suggested that the cause of action is the debt and the prosecution. The third possible way is at- tended by difficulties. The suspension of a cause of action is a thing nearly unknown to the law. It exists trj, \ where a negotiable instrument is given for a debt, and &*r \ in cases of compositions with creditors, and these were - ^DM^^not held till after much doubt and contest. There r . £****"' may be other instances. And what is to happen? Is the statute of limitations to run ? Suppose the debtor or his representative sue the creditor, is his set-off suspended ? Then how is the defence of impediment to be set up ? By plea ? That would be contrary to the rule nemo allegans suam turpitudinem est audiendus. Besides it would be absurd to suppose that the debtor himself would ever so plead, and face the conse- quences. Then is the fourth solution right? No- body ever heard of such a thing ; nobody in any case or book ever suggested it till Mr. Justice Blackburn did as a possibility. Is it left to the court to find it out on the pleadings ? If it appears on the trial, is the judge to discharge the jury ? How is the crown to know of it ? There are difficulties, then, in all the TORTS WHICH ARE FELONIES. 31 possible ways in which one can suppose this impedi- ment to be set up to the prosecution of an action. But, again, suppose it can be, what is the result ? It has been held, that when the felon is executed for another felony the claim may be maintained. What is to happen when he dies a natural death, when he goes beyond the jurisdiction, when there is a prose- cution, and an acquittal from collusion or carelessness by some prosecutor other than the party injured ? All these cases create great difficulties to my mind in the application of this alleged law, and go a long way to justify Mr. Justice Blackburn's doubt. Still after the continued expression of opinion and the cases of Ex parte Elliott and Wellock v. Constantine, I should hesitate to say that there is no practical law as alleged by the respondent." Unfortunately the point was not necessary for the decision in Ex parte Ball, and consequently the law still remains in a very hazy and unsatisfactory state, with regard to which it is im- possible to express any opinion with confidence. How- ever, the rule, as above expressed, has received the sanction of nearly three centuries ; and although the criticisms of Lord Justice Bramwell throw some doubt upon its accuracy, it must, I think, be taken to be law until it is expressly overruled. It must be observed that the rule only applies to a plaintiff who has failed in his duty of endeavouring to bring the felon to justice, and not to third parties. Where, therefore, in an action for seduction of the plaintiff's daughter, a paragraph of the claim alleged that the defendant administered noxious drugs to the daughter for the purpose of procuring abortion ; it 32 TORTS IN GENERAL. was held, that the paragraph could not he struck out as disclosing a felony for which the defendant ought to have been prosecuted, inasmuch as the plaintiff was not the person upon whom the felonious act was committed, and had no duty to prosecute (Appleby v. Franklin, 17 Q. B. D. 93 ; and see also Osborn v. Gillett, L. B.,8 Ex. 88). f i 33 Chapter II. VARIATION IN THE GENERAL PRIN- CIPLE WHERE THE UNAUTHORIZED ACT OR OMISSION IS ONE FORBID- DEN BY STATUTE. Art. 7. — General Rule. (1.) When a statute gives a right, or creates a duty, in favour of an individual or class, then, if no penalty is atta ched, any infringe- ment of the right or breach of the duty will be a tort remediable in the ordinary way (Dormant v. Furness R. Co., 11 Q. B. D. 496; and see San. Commrs. of Gibraltar v. Orfila, 15 App. Cas. 400 ; and Mersey Docks v. Gibbs, L. R. 1 H. L. 93). (2.) But where a penalty is attached (whether recoverable by the party aggrieved or not), it then becomes a question of con- struction whether the legislature intended that the penalty should be the only satis- faction, or whether, in addition, the party injured should be entitled to sue for damages. (3.) In the case of a private act imposing an active duty, the penalty will prima facie /VCl Cv 34 TORTS IN GENERAL. be taken to be the only remedy given for breach of the duty (Atkinson v. Newcastle Water Co., 2 Ex. D. (C. A.) 441). (1) By acts of parliament the harbour of B. was vested in the defendants, and its limits were defined. The defendants had however jurisdiction over the harbour of P. and the channel of P. beyond those limits, for the purpose of, inter alia, buoying "the said harbour and channel." A moiety of the net light duties to which ships entering or leaving the harbour of P. contributed, was to be paid to the defendants and to be applied by them in, inter alia, buoying and lighting the harbour and channel of P. **f*t h. A vessel was wrecked in the channel of P., which u Zj.Ct-. under the Wrecks Eemoval Act, 1877 (40 & 41 Yict. c. 16), s. 4, the defendants had power to, and did f /r partially, remove. The wreck not removed was not buoyed, and the plaintiff's vessel was in consequence wrecked : — Held, that the statutes imposed upon the defendants an obligation to remove the wreck from the channel, or to mark its position by buoys, and that not having done so they were liable in damages to the plaintiff (Dormont v. Fumess Railway Co., 11 Q. B. I). 496; and see Winch v. Thames Conservators, L. R. 9 C. P. 378). (2) At one time it was generally considered that, when a statute gave a right or created a duty in favour of an individual or class, then, unless it enforced the duty by a penalty recoverable by the party aggrieved (as distinguished from a common informer), any infringement of such right, or breach of such duty, would, if coupled with actual damage, T*Yt STATUTORY TORTS. 35 be a tort remediable in the ordinary way. This notion was founded upon the judgment in the case of Couch v. Steel (3 EL fy B. 402), but is no longer a correct statement of the law. Thus, water com- panies are by act of parliament obliged to keep their pipes, to which fire plugs are attached, constantly charged with water at a certain pressure, and are to allow all persons, at all times, to use the same for extinguishing fire without compensation ; and for neglect of this duty a penalty is imposed, recoverable by a common informer. On a demurrer to a declara- tion by which the plaintiff claimed damages against a water company for not keeping their pipes charged as required, whereby his premises were burnt down, it was held by the Court of Appeal that the action would not lie, Lord Cairns, L. C, saying : — " Apart from authority, I should say without hesitation that it was no part of the scheme of this act to create any duty which was to become the subject of an action at the suit of individuals, to create any right in indi- viduals with a power of enforcing that right by action, but that its scheme was, having laid down certain duties, to provide guarantees for the due fulfilment of them, and where convenient to give the penalties, or some of them, to the persons injured, but, where not convenient so to do, then simply to impose public penalties, not by way of compensation but as a security for the due performance of the duty. To split up the 43rd section, and to say that in those | cases in which a penalty is to go into the pochet of the individual injured there is to be no right of action, but t/iat where no penalty is so given to the individual there 36 nty~(Mo r Su^il TORTS IN GENERAL. | is to be a right of action, is to violate the ordinary rules of construction." His Lordship then referred to Couch v. Steel, and continued, " I must venture, with great respect to the learned judges who decided that case, and particularly to Lord Campbell, to express grave doubts whether the authorities cited by Lord Camp- bell justify the broad general proposition that appears to have been there laid down, that wherever a statu- tory duty is created, any person, who can show that he has sustained injuries from the non-performance of that duty, can bring an action for damages against the person on whom the duty is imposed. I cannot but think that that must to a great extent depend on the purview of the legislature in the particular statute, and the language which theg have there employed, and more especially when, as here, the act with which the court has to deal is not an act of public and general policy, but is rather in the nature of a private legislative bargain with a body of undertakers, as to the manner in which they will keep up certain public works." (Atkin- son v. Newcastle Water Co., 2 Ex. D. 441 ; and see also Collcy v. L. 8f N. W. R. Co., 5 Ex. D. 277; and Vallance v. Falle, 13 Q. B. D. 109.) (3) On the other hand, where, by 4 & 5 Vict. c. 45, s. 17, a penalty is imposed upon unauthorized persons unlawfully importing books, reprinted abroad, upon which copyright subsists, the remedy by action is not taken away from the authors ; for there is a biAW right created in their favour, and the penalty is cumulative (Novello v. Sudlow, 12 C. B. 188; and for other instances of the enforcement of statutory rights or duties by action, see Ross v. Rugge Price, 1 Ex. D. fee v ^t^fTC STATUTORY TORTS. 37 2G9 ; Gcddis v. Proprietors of Rutin Reservoir, 3 App. Cas. 430 ; and San. Commrs. of Gibraltar v. Orfila, 15 ib. 400). Art. 8. — Where the Act or Omission is forbidden to prevent a particular Mischief Where a duty is created by a statute for the purpose of preventing a mischief of a particular kind, a person who, by reason of^^ /V another's neglect of the statutory duty,-^ ** -/n- *>**i tL,\ suffers a loss of a different kind, is not^* uj f » entitled to maintain an action for damages — - in respect of such loss (G orris v. Scott, L. It., i 4 ™ ^ *••_ 9 Ex. 125). iy^u^ h ^ (1) Thus, in the above case, the defendant, a shipowner, undertook to cany the plaintiff's sheep from a foreign port to England. On the voyage, some of the sheep were washed overboard, by reason of the defendant's neglect to take a precaution enjoined by an order of the Privy Council, which was made under the authority of the Contagious Diseases (Animals) Act, 1869. It was, however, held, that the object of the statute and order being to prevent the spread of contagious disease among animals, and not to protect them against the perils of the sea, the plaintiff could not recover. (2) And so, where certain regulations were estab- lished by statute for the management of the pilchard fishery, and enforced by the imposition of penalties, it was held, that a fisherman who had lost his proper '«"V^» V"^ Fall i u 38 TORTS IN GENERAL. turn and station, according to the regulations, through the breach of them by another fisherman, could not maintain an action for damages against him for the loss of a valuable capture of fish, which the latter had taken, througli being in such wrong place. For the object of the statute was to regulate the fishery, and not to give any individual fisherman a right to any particular place (Stevens v. Jeaeoclce, 11 Q. B. 741 ; and see Municip. of Pictou v. Geldert, (1893) App. Cas. 524). Art. 9. — The Observance of Statutory Precautions does not restrict Common Law Liability. $ Unless a statute expressly or by necessary i implication restricts common law rights, such £ rights remain unaffected. Thus, the defendant was possessed of a steam traction-engine, and whilst it was being driven by ** the defendant's servants along a highway, some sparks escaping from it set fire to a stack of hay of the plaintiff's standing on a neighbouring farm. The engine was constructed in conformity with the Locomotive Acts, 1861 and 1865, and there was no negligence in the management of it. It was never- theless held that the defendant was liable, on the ground that the engine being a dangerous machine (and, therefore, within the doctrine of Fletcher v. By la i/ds) an action would have been maintainable at common law, and that the Locomotive Acts did not restrict the common law liability (Powell v. Fall, 5 Q. B. I). 597). ■ ( 39 ) Chapter III. VAEIATIONS IN THE GENEEAL PEIN- CIPLE WHEEE THE UNAUTHOEIZED ACT OE OMISSION AEISES OUT OF THE PEEFOEMANCE OF A CON- TEACT. Art. 10. — Cases where Tort and Contract overlap. Whenevee there is a contract, and something- /yl^ q c to be done in the course of the employment,^/ J^/^ which is the subject of that contract, if there />/*tf. A^ be a breach of duty in the course of that em- ft '^- '** <* /h ' f*a if" * ployment, the plaintiff may recover either in — ** tort or m contract {Brown v. Boorman, 11 CLn- ^ rUA t Although a tort has been defined as a wrong in- dependent of contract, there is nevertheless a class of injuries which lie on the borderland, as it were, between contract and tort, and for which an action ex contractu, or ex delicto, may generally be brought at the pleasure of the party injured. , (1) Negligence of professional men. — Thus, if an 1 — apothecary carelessly or unskilfully administer im- 4 t/tJ proper medicines to a patient, whereby such patient **^c * is injured, he may sue him either for the breach of 40 TORTS IN GENERAL. his implied contract to use reasonable skill and care, or for tortious negligence, followed by the actual damage (Scare v. Prentice, 8 East, 348). (2) The plaintiff, who held a mortgage for 4,600/. upon lands belonging to one F., agreed to make him a further advance of 400/. upon having an additional piece of land, which F. had subsequently acquired, added to the former security. The defendant, who acted as the plaintiff's solicitor in the matter, omitted to ascertain (as the fact was) that a third person had an equitable charge to the extent of 46/. upon this additional piece of land, in consequence of which the plaintiff, upon the sale of the property, was unable to convey without paying this 46/. : — Held, that this was negligence for which the solicitor was liable (WJiHcman v. Hawldns, 4 C. P. D. 13). (3) Waste. — So where a person, having an estate for life or years, commits waste, it is both a breach of the implied contract to deliver up the premises in as good a condition as when he entered upon them, and also an injury to the reversion, which is a violation of the reversioner's right, and therefore a tort. (4) Negligence of owners of market. — The defen- dants were owners of a cattle market, and in the market-place they had erected a statue, round which they had placed a railing. The plaintiffs attended the market with their cattle and occupied a site for which they paid toll. A cow, belonging to them, in attempting to jump the railing, injured herself, and subsequently died from those injuries. The jury found that the rail was dangerous : — Held, that the defendants having reccked toll from the TORTS ARISING OUT OF CONTRACT. 41 plaintiffs, and invited them to come into the market with their cattle, a duty was imposed upon them to / - — keep the market in a safe condition, and therefore an . -^ \. action would lie against the defendants for the loss — ' sustained by the plaintiffs {Lax v. Corp. of Darling- "*"**■ A • ' ton, 5 Ex. D. 28 ; and see Hyman v. Nye, 6 Q. B. D. 685). (5) Negligence of Dock Company. — A ship entered a dock to load. While entering a rope got foul of her propeller. On the representation of the dock master that the bottom of the entrance lock was flat, the captain grounded the ship in the lock in order to free the propeller. As a matter of fact the bottom dkmjrf ^ was not flat, but had a sill across its middle, owing h. /^/ /^, to which the ship was seriously strained and injured. ■ Under these circumstances it was held that the dock company were liable to the shipowners [On- iters of Apollo v. Fort Talbot Co., (1891) App. Cas. 499; and see The Rhosina, 10 P. D. 131; The Moorcock, 14 P. D. 64 ; The Calliope, ib., 138). Art. 11. — Privity necessary where the Tort arises out of the Performance of a Contract. ^r/~ <**+*/*. Whenever a wrong" arises out of the per- fri. $/* f ormance of a contract within the meaning Av ^ & - of Art. 10, the following principles apply: — £- (a) No one, not privy to the contract, can sue the person tvho has contracted, in respect of such wrong (Tollit v. Shenstone, 5 31. 6f W. 283 ; Winterbottom v. Wright, 10 M. Sf FT. 109). "^ 42 TOUTS IN GENERAL. (b) But where there is a distinct tort to h? the plaintiff altogether separate and apart 'st. from the breach of contract, although con- f.StiHcLiGl nected with it, the plaintiff may sue although ip y. Uvy not privy to the contract. ^>"^Ah>KArivity of contract between the valuer and the plain- tiff. This was laid down in the case of Le Lievre v. Gould, (1893) 1 Q. B. 491, overruling Caiin v. Wilson (39 Ch. Div. 39), where the law on the sub- ject is most perspicuously stated by Bowen, L. J. In that case, mortgagees lent money by instalments to a builder, on the faith of certificates negligently! granted by the defendant, who was a surveyor' PRIVITY IN TORTS ARISING FROM CONTRACT. 45 appointed, not by tlie mortgagees, but by trie builder's vendor. The certificates were inaccurate and the mortgagees thereby suffered loss for which, they claimed compensation from the defendant : — Held, that as there was no contractual relation between them, the defendant owed no duty to the plaintiffs, and the action could not be maintained. It was urged that a certificate carelessly issued was as dangerous as an ill-made gun or a poisonous hair- wash, and that on that ground the defendant was liable, but the Court would not admit the analogy. Of course, however, if the certificate had heen. fraudu- lent, i. e., issued with intent to deceive the plaintiff, then, independent of any contractual relation, the defendant would have been liable (see also Sc/toles v. Brook, 63 L. T. 837). (8) So if a surgeon treat a child unskilfully, he will be liable to the child, even though the parent contracted with the surgeon {Pippin v. Sheppard, 11 Price, 400). (9) So " a stage-coach proprietor who may have contracted with a master to carry his servant, if he is guilty of neglect, and the servant sustain personal injury, is liable to him. For it is a misfeasance towards him if, after taking him as a passenger, the proprietor drives without due care ; and, as will be seen from the next rule, a misfeasance is a distinct tort" (Longmcid v. Ilolliday, 6 Ex. 767, per Parke, B.). (10) And so, on the same ground, where a servant travelling with his master, who took his ticket and paid for it, lost his portmanteau through the railway company's negligence, he was held entitled to sue the 46 TORTS IN GENERAL. company {Marshall v. York, 8fc. P. Co., 21 L. J., C. P. 34 ; and see Elliott v. Hall, 15 Q. B. P. 315). Illustrations of paragraph (c). — (11) "Where, on the other hand, a servant took a ticket of the London and Tilbury Railway Company, who thereby impliedly contracted to carry him with care and without negligence, and the servant travelled in a train drawn by an engine of the South Eastern Railway . Company, and the latter company also provided the signalman and so on, and owing to their negligence a collision happened, and the servant was injured, it was held that the master could sue the South Eastern Railway Company. For although he could not sue the London and Tilbury Company, because, qua them, the wrong was one arising out of contract in respect of which the servant alone could sue, yet the negligence of the South Eastern Railway Com pany did not arise out of any contract. They were entire strang ers to th e contract, and their tort was a tort pure and simple, and consequently the master could sue in respect of it (Berringer v. O. E. B. Co., 4 C. P. P. 163). Art. 12. — Pieties gratuitous/// undertaken. The confidence induced by undertaking any service for another is a sufficient legal consideration to create a duty in its perform- GRATUITOUS DUTIES. 47 ance (Coggs v. Bernard \ 1 Sm. L. Ca. 177, 6 th ed.). Misfeasance. — There is a class of contracts which are particularly nearly allied to torts. Such are gratuitously undertaken duties. Such duties are not contracts in one sense, namely, that, being without consideration, the contractor is not liable for their I nonfeasance, *. e., for omitting to perform them. ' But, on the other hand, if he once commences to perform them, the contract then becomes choate, as it were, by virtue of the above rule — (1) Thus, in the above case, the defendant htsfa*^ gratuitously promised the plaintiff to remove several *~$<,^ ^* hogsheads of brandy from one cellar to another, and, ' "* _ ** in doing so, one of the casks got staved through his ( gross negligence. Upon these facts it was decided^g^ r. -& that the defendant was liable ; for although his \fou.tlcc$ h . fi contract could not have been enforced against him,-''W f H .& yet, having once entered upon the performance of it, he thence became liable for all misfeasance. (2) Again, the defendants, the Metropolitan Dis- trict Railway Company, have running powers over the South Western Railway between Hammersmith and the New Richmond Station of the South Western Company. Above the booking office at the Richmond station are the words "South Western and Metro- politan Booking Office and District Railway." The plaintiff took from the clerk there employed by the South Western Company a return ticket to Hammer- smith and back. The ticket was not headed with the name of either Company, but bore on it the words 48 TORTS IN GENERAL. " via District Railway." On his return journey from Hammersmith the plaintiff travelled with this ticket in a train belonging to the defendants and under the management of their servants. The carriage being unsuited for the New Richmond Station platform, the plaintiff, in alighting, fell and was hurt. He brought an action against the defen- dants, and the jury found negligence in them : — Held, that having invited or permitted the plaintiff to travel in their train, the defendants were bound to make reasonable provision for his safety ; and that there was evidence of their liability, even assuming the ticket not to have been issued by or for them, hit for the South Western Company LFoulkes v. Met. Bis. R. Co., 5 C. P. B. 157). (3) So persons performing a public duty gratui- tously are responsible for an injury to an individual through the negligence of workmen employed by them (Clothier v. Webster, 12 C. B. N. 8. 790; Mersey v. Gibbs, L. R. 1 BT. B. 93 ; Foreman v. Mayor, L.R.Q Q.B.2U). Bailments. — In some works injuries to goods whilst in the keeping of carriers and innkeepers are described as torts ; in others as breaches of contract ; but how- ever actions in respect of them may be framed, they are in substance ex contractu, being for non-perform- ance of the contract of bailment, and not for a tort independent of contract (Roscoe, 539 ; 2 Bl. Com. 451 ; Legge v. Tucker, 26 B. J. Ex. 71). I shall therefore not treat of them in this work. ( 49 ) Chapter IV. VARIATION IN THE GENERAL PRINCI- PLE WHERE THE UNAUTHORIZED ACT OR OMISSION TAKES PLACE OUTSIDE THE JURISDICTION OF OUR COURTS. Art. 13. — Torts committed Abroad. An action will lie in the English Courts ^^ **" for a tort committed outside England, pro- ;, vided : — Tori ^ £/£, (a) It is a tort according to both English jzt*pf~ y A law and the law of the country where it was^ f/u Zfr* committed; and - (b) It is a tort which is not of a purely local nature, such as a trespass to, or ouster p^y^ from land, or a nuisance affecting heredita- V ments. ^ ^u^Sfif (1) Thus, in the leading case of Most yn v. F abric/as (1 3m. L. C. 628), it was held that an action lay in England against the governor of Minorca, for a false imprisonment committed by him in Minorca, the plaintiff being a native Minorquin. 50 TORTS IN GENERAL. (2) So actions may be brought in this country against foreigners, for injuries committed on the high seas (Submarine Telegraph Co. v. Dickson, 15 C. B. N. S. 759). (3) On the other hand, where there was a collision between two ships in Belgian waters, and the owners of one of the ships were liable according to Belgian law, but, by reason of compulsory pilotage, were not liable according to English law, it was held that no action could be maintained against them in our Courts (The Halley, L. R., 2 P. C. 193, 204). (4) Conversely, where the governor of a colony A had committed a tort according to our law, but was, by an act of the Colonial Legislature, discharged from responsibility in the colony, it was held that he could not be sued in England (Phillips v. Eyre, L. R., 4 Q. B. 225 ; 6 ib. 1 ; and see also BlacVs case, 3 Swan. 603). (5) The English Courts have no jurisdiction to entertain an action to recover damages for a trespass to land situate abroad ; injuries to proprietary rights in foreign real estate being outside their jurisdic- tion. (See Brit. South African Co. v. The Campanhia. _ de Mocambique, (18 93) App. Cas. 602, where all the prior cases are examined). ( 51 ) I Chapter V. OF PERSONAL DISABILITY TO SUE AND TO BE SUED FOE, TORT. Art. 14. — Who may sue. (1) Every person may maintain an action for tort, except an alien enemy, and a convict during his incarceration (33 & 34 Vict. c. 23, j^^y sects. 8, 30). A married woman may sue c *^* n ^ alone, and damages recovered by her belong f?? Hfc/ to her as her separate property (Beasley v. f , pV Bone?/, (1891) 1 Q. B. 509; 60 L. J. Q. B. / — *" 408). (2) A wife cannot sue a husband for tort, / wi ^ nor a husband his wife («). i **»^ * (3) A corporation cannot sue for a tort me rely affecting its reputa tion (Mayor of Manchester v. Williams, (1891) 1 Q. B. 94; 60 L. J. Q. B. 23 ; 63 L. T. 805). (a) The proceedings allowed to be commenced by a wifo against her husband under the 12th section of the Married Women's Property Act, 1882, could scarcely comprise an action for tort. e2 a 52 TORTS IN GENERAL. (4) A child cannot maintain an action for injuries sustained while en ventre sa mere (Walker v. G. N. Rail. Co., 28 L. R. Ir. 69). 1m- ./Wu Art. 15. — Who may he sued for a pure Tort. (1) Every person who commits a tort not n, f* depending on fraud or malice, and not aris- £**j*u * n S out ^of the performance of a contract, is tAU'hujfn liable to be sued, notwithstanding infancy, coverture, or u nsoundnes s of mind ; except (1) the sovereign, (2) foreign sovereigns, and (3) ambassadors of foreign powers (see Mag- dalena Co. v. Martin, 28 L. J. Q. B. 310). (2) Every person who commits a tort de- pending on fraud o r malice is liable to be I sued, unless from extreme youth or unsound- I ness of mind he is mentally incapable of contriving fraud or malice (semble). 1(3) A corporation which commits a tort, is as liable to be sued as a private individual would be if the thing done or omitted is //within the purpose for whi ch th e corp oration f exist s ; but otherwise the" corporation is not liable, and its directors, servants, or other per- sons who authorize or commit the tort can alone be sued (Edwards v. Midland Rij. Co., WHO MAY HE SUED. 53 6 Q. B. D. 287 ; Bank of New South Wales v. Owston, 4 App. Cas. 270). (1) Thus, where an infant is guilty of negligence, 1 and thereby causes loss to another, the latter may sue him for damages, notwithstanding his infancy (Bur- fpJLj, ' nard v. Haggis, 14 C. B. N. S. 45). . (2) So, also, infants and married women are clearly ] liable for fraud (see Be Lush, L. B. 4 Ch. App. 591, and Sharpe v. Fog, ibid. 35) ; but as fraud depends, not upon acts or omissions simply, but upon acts done or omissions made with intent to injure another, \ it would seem to follow that extreme youth or lunacy of such a character as would negative the existence of such intention would probably be held a good defence (see per Lord Esher, M. E,., Einmens v. Pottle, 16 Q. B. D. at p. 356). The same principle would, of course, apply to torts which depend on the existence of malice. (3) With regard to corporations, of course actions of tort can of necessity only arise for acts or omissions of their servants or directors, and the difficulty in such cases is the same as arises in other cases of the responsibility of a principal for the acts of his agent, viz., the difficulty of determining whether or not the act or omission complained of, was within the scope z 7 / ^^^ of the general authority or duty of such servant or Si, J . f, director. Thus, in Edwards v. Midland By. Co. (supra) , it was held that the employment of policemen by a railway company to protect their property is an act within the scope of the incorporation of the company, and that consequently the company were responsible for a malicious prosecution carried out by one of such 54 TORTS IN GENERAL. policemen. On the other hand, in Bank of New South Wales v. Owston (supra), which was an action for a malicious prosecution against an incorporated bank- ing company, the jury found that the same had been authorized on behalf of the bank by W., the acting manager, and were directed by the judge that it was to be inferred from "W.'s position as manager that he had sufficient power under the circumstances for directing a prosecution : — Held, on appeal, that the direction to the jury to the effect that it was to be inferred from W.'s position that he had authority to direct the prosecution was on the evidence incorrect. The arrest, and still less the prosecution of offenders, is not within the ordinary routine of banking business, and, therefore, not within the ordinary scope of a bank manager's authority. Evidence accordingly is required to show that such arrest or prosecution is within the scope of the duties and class of acts such manager is autho- rized to perform. That authority may be general, or it may be special and derived from the exigency of the particular occasion on which it is exercised. In the former case, it is enough to show, commonly, that the agent was acting in what he did on behalf of the principal ; but in the latter case, evidence must be given of a state of facts which shows that such exigency is present, or from which it might reason- ably be supposed to be present (and see also Charles- ton v. London Tramways Co., 36 W. R. 367 ; Gilbert v. Trinity House, 17 Q. B. D. 795 ; and Mersey Docks v. Gibbs, L. R. 1 //. L. 93). (4) Where, however, a public duty is imposed by statute on a corporation, it by no~means follows that WHO MAY BE SUED. 55 a private injury, caused ^ to an individual by non- feasance, will give him a right of action against the corporation. Of course, if the statute shows an in- tention to impose such a liability on the corporation, they will be held liable ; but the mere imposition of a public duty (ex. g r., to repai r road s) does not of itself render the corporation liable to an action for non-performance of the duty. They may be liable to a pro secut ion, or to a m andam us, but not to an action for damages. (Municipality of Pictou v. Geldert, (1893) 2pp. Cas. 524)7"" ftu/ut'c Y ei ft (ton. tr. fjrLCt^t - Art. 16. — Who may he sued for Torts founded on Contract. No person can be sued for a tort arising out of the performance of a contract, who would be incapable of entering into that contract. (1) Thus, where an infant hired a horse and over- worked it, so that it was permanently injured, it was * fe< h $> held that he was not liable, because the tort was one arising out of the performance of the contract of hiring (Je nnings v. Rmj daU, 8 T. R. 335). (2) Of course, however, where the tort is merely connected with, and does not arise out of, the per- formance of the contract, the case is difficult ; ex. gr., if the infant in the last preceding illustration had shot the horse, or sold it, he would clearly have been ' r . s .° liable (see Burn ard v. Hagg is, 14 C. B. N. S. 45). ' , U1 ^^ There is, however, sometimes very considerable diffi- culty in saying whether a tort arises out of the per- | f ormance of, or is merely connected with, a contract. ( /Th** s/a 7) HAyn^AA.. 56 TORTS IN GENERAL. Chapter YI. LIABILITY FOE TORTS COMMITTED BY OTHERS. Section I. — Liability of Husband for Torts of Wife. Art. 17. Wife's ante-nuptial and post-nuptial Torts. (1) A married woma n may b e sued alone in respect of her ante-nuptial torts ; but her hu sband is also_jiable to the extent of the pro perty which he re ceived with her; and lie may be sued either jointly with her or alone (45 & 46 Vict. c. 75, ss ? 13, 14, and 15). (2) A married woman may also be sued alone in respect of her post-nuptial torts (45 & 46 Vict. c. 75, s. 1), but her husband is also liable, and may be joined with. her as defendant (Seroka v. Kattenburg, 17 Q. B. D. 177). — **- i Prior to the Married "Women's Property Act, 1882, I a wife could not be sued alone for a tort. Her torts 1 were torts of her husband, and indeed Jessel, M. R., said in one case (Wainford v. Uei/l, L. R. 20 Eq. 321), that, strictly speaking, a married woman could HUSBAND S LIABILITY. 57 ^no^commit tortgjjbut could merely creat e a liability-, . ^^ - agai nst her husband. By the above-mentioned act, however, this exemption is removed, and a married ( M-- & woman is now as liable to be sued alone for her torts as if she were a feme sole. This enactment, however, does not affect the common law liability of a husband for his wife's torts (Sero/ca v. Kattenburg, ubi sup.) ; and, consequently, a plaintiff can elect whether he will sue the wife alone, or join her husband as co-defendant with her. Section II. — Liability of Employer for Torts of Contractor (a). Art. 18. General Immunity. A person employing a contractor, will be liable for the contractor's wrongful acts in t he following cases only : — (f I (1) If the employer retains his co ntrol ove r the contra ctor, and personally interferes and makes himself a party to the act which occasions the damage. (2) If the thing contracted to be done is itself illega l. (3) If a legal duty is incumbent on the emp loye r, and the contrac tor either om its, or imperfec tly per forms such duty. (a) This section does not apply to the liability of an em- ployer to one of his workmen, for an injury caused by the negligence of a sub-contractor, as to which, see sect. 3, infra. 58 TORTS IN GENERAL. (4) Where the thing contracted to be done, although lawful in itself, is likely, in the ordinary course of events, to damage another's property unless preventive means are adopted, and the contractor omits to adopt such means [Hughes v. Percival, 8 Ajop. v Cas. 443). (1) A contractor, employed by navigation commis- sioners, in the course of executing the works, flooded the plaintiff's land, by improperly, and without authority, introducing water into a drain insuffi- ciently made by himself. Her ethe contractor, a nd Hsw*i-d no t the commissioners, was held lia ble {Allen v. Howard, 7 Q. B. 960 ; and see also Jones v. Corp. of 'Liverpool, 14 Q. B. D. 890. (2) So where a company contracted with A. to i". construct a railway, and A. sub- contracted with B. : ^.{Qr m. to construct a bridge on it, and B. employed C. to erect a scaffold under a special contract between him and C. ; a passenger injured by the negligent con- ^ *"• ' OK struction of the scaffold could only sue C, and not A., B., or the company (Knight v. Fox, 5 Ex. 721 ; and see Kiddle v. Lovett, 16 Q. B. D. 605 ; and Member ;i v. G. W. R. Co., 14 App. Cos. 179 ; 58 w.hOpL. J., II. L. 563). id ■ (^) ^° w here a butcher bought a bullock, and hired a licensed drover to drive it to his shop ; and the drover, instead of so doing, employed a boy for the purpose ; it was held that the butcher was not liable for the injurious consequences caused by the LIABILITY FOR CONTRACTOR S TORTS. 59 boy's negligence, as the relation of master and ser- vant did not exist between them (Milligan v. Wedge, 12 A. $ E. 737). (4) So if the owner of a carriage hire horses from a job master, who at the same time provides a driver, the job master is liable for accidents caused by the driver's negligence; for he is the job master's ser- ' vant, and not that of the owner of the carriage (Quarman v. Burnett, 6 M. fy W. 499). And qua the public, a similar principle applies to cab pro- prietors and cab drivers, where the proprietor finds both cab and horse ( Venables v. Smith, 2 Q. B. D. 279 ; King v. London Cab Co., 23 Q. B. D. 281 ; 61 L. T. 34 ; 37 W. B. 737) ; but it is otherwise where the driver finds the horse and harness, or merely hires the cab (King v. Spun; 8 Q. B. B. 104). (5) Illustrations of exceptions. — But, where the , defendant employed a contractor to make a drain, A*-^ - and he left some of the soil in the highway, in con \/$ > a^ v 7, *. sequence of which an accident happened to the plain- /^^"S^ tiff, and afterwards the defendant, on complaint being — made, promised to remove the rubbish, and paid for I carting part of it away, and it did not appear that the \ contractor had undertaken to remove it ; it was held that I the defendant was liable under exception (1) (Bur- gess v. Gray, 1 C. B. 578). " (6) A company, not authorized to interfere with the streets of Sheffield, directed their contractor to open trenches therein ; the contractor's servants in doing so left a heap of stones, over which the plaintiff fell and was injured. Here the defendant company was held liable, as the interference with the streets 60 TORTS IN GENERAL. was in itself a wrongful act {Ellis v. Sheffield Gas Consumers Co., 23 L. J. Q. B. 42). (7) So where the defendants were authorized, by an act of parliament, to construct an opening bridge over a navigable river, a duty was cast upon them to construct it properly and efficiently ; and the plaintiff having suffered loss through a defect in the con- struction and working of the bridge, it was held that the defendants were liable, and could not excuse themselves by throwing the blame on their con- tractor (see Hole v. Sittingbourne, fyc, 6 H. Sf N. 488). (8) Plaintiff and defendant were owners of two adjoining houses, plaintiff being entitled to have his house supported by defendant's soil. Defendant employed a contractor to pull down his house, exca- vate the foundations, and rebuild the house. The contractor undertook the risk of supporting the plaintiff's house as far as might be necessary during the work, and to make good any damage and satisfy any claims arising therefrom. Plaintiff's house was injured in the progress of the work, owing to the means taken by the contractor to support it being insufficient. Held, on the principle above laid down (paragraph 4), that the defendant was liable {Bower v. Peate, 1 Q. B. I). 321 ; and see to same effect, Tarry v. Ashton, ib. 314, and Angus v. Ballon, 6 App. 'VasTTlO). ; ^ \ LIABILITY TO STRANGERS FOR SERVANT'S TORTS. 61 Sect. III. — Liability of Master for Torts of Servant. Sub-sect. I.— LIABILITY TO THIRD PARTIES. Art. 19. — General Principle. (1) A person who puts a servant in his place to do a class of acts in his absence, is answerable for the torts of the servant, 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 ; and whether it be done negligently, wantonly, or even wilfully. Provided that what is done, is done by the servant in the course and within the general scope of his employment {Baijleij v. Manchester, Sheff. Sf Lincoln. R. Co., L. R., 7 C. P. 415). (2) But if the servant, without regard to his service or his duty therein, or solely to accomplish some purpose of his own, acts maliciously or wantonly, the master is not liable (Mott v. Consumers'' Ice Co., 73 New York Reps. 543). (3) For the purposes of this rule, a person is considered a servant, whether he is hire d by the master personally or by those who are intrusted by the master with the hiring 62 TORTS IN GENERAL. of servants [Laugher v. Pointer, 5 B. 6c 0. 547). Who are servants. — This rule springs from the ^r*' ^well-known legal maxim, " qui facit per alium, facit r^ per se. ""(1) To illustrate the last paragraph of the rule first, the word " servant " applies not only to domes- tic servants, but to clerks, managers, agents, and, in short, all whom the master appoints to do any work, and over whom he retains any control or right of control, even though they be not under his immediate superintendence. Thus, "if a man is owner of a ship, he himself appoints the sailing master, and desires him to appoint and select the p. crew. The crew thus become appointed by the owner, tp . __ and are his servants for the management of his ship : ^j_J" and if any damage happen through their default, it is the same as if it haj>pened through the immediate default of the owner himself" {Laugher v. Pointer, «-*£*- 'h~ a. sup., per Littledale, J.). In a recent case, however, : <**Y SckuvL ft wag heij^ that a teacher in a voluntary school was, under the circumstances, not the servant of the com- mittee of management (Crisp v. Thomas, 63 L. T. 756). (2) General illustrations of the rule. — Thus, if a servant drive his master's carriage over a bystander ; or if a gamekeeper employed to kill game fire at a hare and kill a bystander; or if a workman em- ployed in building, drop a stone from the scaffold, and so hurt a bystander ; the person injured may (if the servant's act w r as negligent or wrongful), claim UXajOAjJC \rT*~0lna.$ LIABILITY TO STRANGERS FOR SERVANT'S TORTS. 63 reparation from the master ; "because the master is bound to guarantee the public against all damage arising from the wrongful or careless acts of him- self, or of his servants when acting within the scope of their^rplovment {Bartomkill Coal Co. v. Iieid, 3 Macq. H. L. Ca. 266). (3) The tort must be committed in the course of the employment. — It will be perceived that the lia- bility of the master depends on two points, viz., (1) the tort must have been committed in the course of the employment, and (2) the act or omission must have been within the general scope of that employ- ment. If either of these factors is absent, the master is freed from liability. Thus, in Rayner v. JJitehell (2 C. P. D. 357) it was the duty of the carman of the defendant, who was a brewer, to deliver beer /uyk^ to the customers with the defendant's horse and Au'/-ti cart, and on his return collect empty casks, for <-. each of which he received a penny. The carman a f ' having, without the defendant's permission, taken out the horse and cart for a purpose entirel y of h is oivn, on his way back collected some empty casks, and while thus returning the plaintiff's cab was injured by the carman's negligent driving. Under these circumstances, it was held that the defenda nt was not liab le ; and Lindley, J., said, " The question is, whether, under these circumstances, the servant was acting in the course of his employment. In my judgment he was not. It is certain that the servant did not go out in the course of the employment. Does it alter the case, that whilst coming back he picks up the casks of a customer ? I think it does not. He was returning on a purpose of his own, 64 TORTS IN GENERAL. and he did not convert his own private occupation into the employment of his master, simply by picking up the casks of a customer." (4) So, where a master intrusted his servant with his carriage for a given purpose, and the servant drove it for another purpose of his own in a different direction, and in doing so drove over the plaintiff, the~lnaster was held not to be responsible, on the ground that the servant was not acting within the scope of his employment (Storey v. Ashton, L. R., 4 Q. B. 476). But if the servant when going on his master's business had merely taken a somewhat longer road, such a deviation would not have been considered as taking him out of his master's employ- ment {Mitchell v. Crasswelkr, 22 L. J., C. P. 100 ; and see Whiteley v. Topper, 2 Q. B. D. 276). (5) Thus, in Rourhe v. White Moss Coal Co. (2 C. P. D. 205), the defendants had contracted with W. to sink a shaft for them at so much a yard, W. to provide all necessary labour, the defendants providing steam power and machinery, and two engineers, to be under the control of W. The plaintiff, one of W.'s workmen, was injured by the negligence of L., one of the defendant's engineers ; but it was held that the company were not liable for this injury, on the ground, that although L. was their general servant, yet, at the time of the injury, he was not actually employed in doing their work, and was under the immediate control of W., to whom he had been lent by them, and whose servant, therefore, he must be considered to have been. (See also Hodkinson v. L. 8f N. W. R. Co., 32 W. R. 662 ; and distinguish Jones v. Liverpool Corp., 14 Q. B. JD. 890.) LIABILITY TO STRANGERS FOR SERVANT'S TORTS. 65 (6) So where the servant was in the temporary employ of a third party under a contract between the master and such third party, the master was held free from responsibility for an accident caused by the servant's negligence {Donovan v. Laing, 8fc. Limited, (1893) 1 Q. B. 629). (7) Tort must be within the general scope of em- ployment. — The plaintiffs occupied offices beneath those of the defendant. In the defendant's office was a lavatory for his own use exclusively, and the use of which was expressly forbidden to his clerks. One of the latter, nevertheless, used it, and left the water running, whereby the plaintiff's offices were ^w-hl* flooded. Held, that the act o f the clerk was not fYoo^^r with in the scope of hisauthority, and that the de- fendantwaVnoTTTable (Stevens v. Woodward, 6 Q. B. D. 318). But where the clerk was allowed the use of the lavatory, the decision was contra (Ruddiman v. Smith, 60 L. T. 708 ; 37 W. R. 528 ; and see, as to fraud of an agent, Newlands v. Nat. Employers'' Ace. Ass. Co., 54 L. J., Q. B. 428 ; British Mutual Bhg. Co. v. Charnwood, 8fc. Co., 18 Q. B. D. 714 ; and Burnett v. S. L. Trams, ib. 815). ^U /t'k (8) On the other hand, in Limp us v. London ^ /c«^- £ General Omnibus Co. (11 W. R. 149 ; 7 L. T., N. S. '-*«* <- 641), the driver of an omnibus wilfully, and contrary L -s ' P^. to exp ress orde rs from his master, pulled across the f ^ ■ * s < road, in order to obstruct the progress of the plain- ^ ^ r tiffs' omnibus. In an action of negligence, it was held, that if the act of driving across to obstruct the plaintiffs' omnibus, although a reckless driving, was nevertheless an act done in the course of the driver's u. F 66 TORTS IN GENERAL. service, and to do that which he thought best for the interest of his master, the master was responsible. And Willes, J., said, " Of course, one may say that it is no part of the duty of a servant to obstruct another omnibus ; and in this case the servant had distinct orders not to obstruct the other omnibus. I beg to say that in my opinion tho?e instructions were perfectly immaterial. If they were disre- garded, the law casts upon the master the liability for the acts of his servants in the course of his employ- ment ; and the law is not so futile as to allow the master, by giving secret instructions to his servant, to set aside his own liability The proper question for the jury to determine is, whether what was done was in the course of the employment, and for the benefit of the master." Blackburn, J., also, quoting and approving the charge of the learned judge who tried the case, said, "If the jury came to the conclusion that he did it, not to further his master's interest, not in the course of his employ- ment as an omnibus driver, but from private spite, with an object to injure his enemy — who may be supposed to be the rival omnibus — that would be out of the course of his employment. That saves all possible objections." (9) The case of Poulton v. London and South \ Western 11. Co. (L. R., 2 Q. B. 534) seems, at first sight, to be inconsistent with the above case. There, a station-master having demanded payment for the carriage of a horse conveyed by the defendants, arrested the plaintiff, and detained him in custody until it was ascertained by telegraph that all was LIABILITY TO STRANGERS FOR SERVANT'S TORTS. 67 right. The railway company had no power what- ever to arrest a person, for non-payment of carriage^ and therefore the station-master, in arresting the plaintiff, did an act that was wholly illegal, not in the mode of doing it, hut in the doing of it at all. Under these circumstances, the court held that the railw ay company were not respon sible for the act of their station-master ; and Blackburn, J., said : " In Limpus v. General Omnibus Co., the act done by the driver was within the scope of his authority, though no doubt it was a wrongful and improper act, and, therefore, his masters were responsible for it. In the present case, an act was done by the station-master completely out of the scope of his authority, which there can be no possible ground for supposing the railway company authorized him to do, and a thing which could never be right on the part of the com- pany to do. Having no power themselves, they cannot give the station-master any power to do the act." And Mellor, J., said: "If the station-master had made a mistake in committing an act which he was authorized to do, I think in that case the com- pany would be liable, because it would be supposed to be done by their authority. Where the station- master acts in a manner in which the company them- selves would not be authorized to act, and under a mistake or misapprehension of what the law is, then I think the rule is very different, and I think that is the distinction on which the whole matter turns " (but see Moore v. Metropolitan R. Co., L. R., S Q. B. 36). (10) Again, a tramway company gave to their f2 (J 68 TORTS IN GENERAL. conductors printed instructions not to give passengers into custody without the authority of an inspector or timekeeper. The conductor of a car detained the plaintiff (a passenger) on a charge of attempting to pass false money. Held, in an action of false im- prisonment against the company, that they were not liable, notwithstanding the fact that the fifty-second section of the Tramways Act, 1870, empowers any servant or officer of a tramway company to detain a passenger attempting to defraud {Charleston v. Lond. Tramways Co., 36 W. R. 367). (11) So, again, where a barman wrongfully gave a customer into custody for an alleged attempt to pass bad money, it was held that, in the absence of evidence of authority, the master was not liable {Abrahams v. Deakin, (1891) 1 Q. B. 516; and see also Owston v. Bank of New South Wales, 4 App. Cas. 270). (12) In Gqffv. Great Northern R. Co. (3 E. 8f E. 672), on the other hand, the act was the arresting a man for the benefit of the company where there was authority to arrest a passenger for non-payment of his fare ; and the court accordingly held, that the policemen who were employed, and the station- master, must be assumed to be authorized to take people into custody whom they believed to be com- mitting the act, and that if there was a mistake, it was a mistake within the scope of their authority. (13) So, again, in Bay ley v. Manchester, Sheffield and Lincoln. R. Co. (L. R., 7 C. P. 415), the plaintiff, a passenger on the defendants' line, sustained injuries in consequence of being pulled violently out of a LIABILITY TO STRANGERS FOR SERVANT'S TORTS. 69 railway carriage by one of the defendants' porters, who acted under the erroneous impression that the plaintiff was in the wrong carriage. The defendants' bye-laws did not expressly authorize the company's servants to remove any person being in a wrong carriage, or travelling therein without having first paid his fare and taken a ticket, and they even contain certain provisions which implied that the passengers should be treated with consideration ; but, nevertheless, the court considered that it was within the probable scope of a porter's authority gently to remove any person in a wrong carriage, and as the porter had exercised his probable autho- rity violently, they held that the company was re- sponsible (see also Seymour v. Greenwood, G II. Sf JS r . 359 ; and Butler v. Manchester, Sheffield and Lincoln. B. Co., 21 Q. B. D. 207). (14) So where a bye-law of a railway company forbade any persons, except employees, to ride on baggage cars ; and enjoined the officials to strictly enforce the rule ; and one of the officials, while the train was in motion, ordered a passenger to get off one of the baggage cars ; and upon his failure to comply, kicked him off, whereby he fell under the wheels, and was greatly injured; it was held by the New York Court that the company was liable, on the ground that " it is not necessary to show that the master expressly authorized the particular act. It is sufficient to show that the servant was engaged at the time in doing his master's business, and was acting within the general scope of his authority ; and this, although he departed from the private in- 70 TORTS IN GENERAL. structions of the master, abused his authority, was reckless in the performance of his duty, and inflicted unnecessary injury" [Rounds v. Delaware, 8fc. Rail- road, 64 Neto York Rep. 129). Art. 20. — Ratification of Tort committed by a Servant. A tortious act done for another, by a person not assuming to act for himself, but for such other person, though without any precedent authority whatever, becomes the act of the principal if sub sequently ratifie d by him and, whether it be for his detriment or his advantage, to the same extent as if the same act had been done by his previous authority ( Wilson v. Tummcm, 6 M. 6f Gr. 242). t*dili"kkv This rule is generally expressed by the maxim, " Omjiis ratihabitio rctrotrahitur, et mandato priori (equi paratu r" and is equally appli cable to torts and to contracts. It should be observed that the act must have been done for the use or for the benefit of the principal (4 Inst. 317 ; Wilson v. Barker, 4 B. 8f Ad. 614 ; and judgment, Dallas, C.J., Hall v. Pickersgill, IB. fyB. 286). -v^ «. i yv* LIABILITY TO STRANGERS FOR SERVANT'S TORTS. 71 Art. 21. — Unauthorized Delegation by Servant. A master is not, in general, liable for the tortious acts of persons to^wliom his servant has, without authority, delegated his duties, and between whom and the" master the rela- tion of master and servant does not exist (sub- mitted, and see Jewell v. Grand Trunk Railway, 55 A r . //. 81). (1) Thus it is apprehended that if a master wrote to his groom and ordered him to take the carriage to such a place, and the groom, instead of taking the carriage himself, employed A. to do it for him, with- out having ever had any authority from the master to intrust A. with the carriage, and A. so carelessly drove the carriage as to injure B., no action would lie against the master. For the master never hired the groom for the purpose of employing others to do his work ; and therefore, in intrusting the carriage to A., he would be acting beyond the scope of his employment, and beyond his probable authority. (2) But if, on the other hand, the groom had taken A. with him, and had handed the reins to him, it is submitted that the master would be liable, because the handing of the reins to another whilst he was in the act of performing his duty would be a default in the performance of that duty, and not a complete retirement from its performance (see per Lord Abinger, Booth v. Mister, 7 C. fy P. 66, and Joel v. Morison, 6 C. 8f P. 503). 72 TORTS IN GENERAL. Such is a brief outline of the law relating to the responsibility of masters to third parties for the torts of their servants; but the learning on the subject is of so technical a character, and the distinctions as to when a servant is, and when not, acting within the scope of his employment, or even whether he be a servant at all, are so very refined, and the authorities are so conflicting, that a legal training is often neces- sary in order that the difference may be distinguished. I shall therefore content myself with the foregoing general rules (which are believed to be accurate so far as they go), leaving to other and larger works on the law of master and servant the task of quoting the numerous cases on the subject, and commenting upon the very subtle distinctions between them. Sub-sect. 2.— LIABILITY TO SERVANTS FOR INJURIES CAUSED BY FELLOW-SERVANTS. The liability of a master to recompense his servant for an injury resulting from the negligence of a fellow-servant, differs very materially from his liability to a third party for a similar injury, by reason of the rule of law that a master is not so liable where the injurer and the injured are engaged in a common employment, and the injury was inflicted in the course of that employment. This rule, known as the doctrine__of__common employment, is founded on the idea that the servant takes all the risks incident to his employment as part of the contract of service. However, the doctrine LIABILITY FOR TORTS OF FELLOW-SERVANTS. 73 has of late years got into very bad odour, and it was attempted by the E mploye rs' Liability Bill, 1893, to abolish it altogether, and to place servants on pre- cisely the same footing as other persons with regard to injuries suffered through the carelessness of a fellow-servant. That bill was, however, finally abandoned by Mr. Gladstone's government, because the House of Lords insisted upon allowing certain classes of workmen, under certain safeguards, to con- tract themselves out of the Act, and consequently the old law still remains in existence. There is, however, still in force a temporary statute called the Employers' Liability Act, 1880, which has been renewed from time to time, and which (unless further renewed) will expire at the end of 1894. This Act makes considerable alterations in the common law ; but it only applies to a limited class of workmen, and to a limited class of negligent acts. For these reasons, therefore, it is necessary that the student should first consider the common law liability of a master towards his servant, and then he may with advantage examine how far these rules are modified by the temporary statute above referred to. (1.) COMMON LAW LIABILITY. Art. 22. — General Immunity. (1) A master is not liable to his servant for damage resulting- from the negligence or un- 74 TORTS IN GENERAL. skilfulness of his fellow-servant in the course of their common employment, unless : — (a) The master has employed (or, semble, has continued the employment of) the latter, knowing him to be in- competent, or without satisfying K<6njjM*t* himself that he was competent for the duties required of him (see Laning v. N. Y. Cent. R. Co., 49 New York Reps. 521). . (b) The servant injured was not at the time acting in the master's employ- ment. (2) Common employment does not neces- sarily imply that both servants should be engaged in the same or even similar acts, so long as the risk of injury from the one is so much a natural and necessary consequence of the employment which the other accepts, that it must be included in the risks which have to be considered in his wages {Morgan v. Vale of Neath R. Co., L. R., 1 Q. B. 149 ; Allen v. New Gas Co., 1 Ex. D. 251). (3) The rule does not exempt a master from being liable for personal negligence causing injury to his servant (Ormond v. Holland, E. B. 6f E. 102 ; Ashvorth v. Slanwix, 30 L. J., Q. B.. 183), unless the servant knew LIABILITY FOR TORTS OF FELLOW-SERVANTS. 75 of, and presumably voluntarily acquiesced in, the danger (a) [Griffiths v. London 6f St. Katha- rine's Docks Co., 18 Q. B. D. 259). (1) Illustrations of general principle. — Thus, where a workman at the top of a building carelessly let fall a heavy substance upon a fellow- workman at the bottom, the master was held not to be responsible, , without proof of the incompetency of the workman causing the injury to discharge the duty in which he bad been employed ( Wigge tt v. Fox, 25 L. *}-. L£ an d- see Martin v. Commit' 's Quay Co., 33 W. R. 216 ; lute Co • and Griffiths v. London 8f St. Katharine's Dock Co., 13 Q. B. D. 259). (11) Doctrine of v olenti non fit inj uria. — But where a servant with a full appreciation of the risk which he is running assents to accept the risk, either ex- pressly or impliedly, he cannot recover ; for volenti non fit injuria. Therefore, where a labourer was killed through the fall of a weight, which he was raising by means of an engine to which he attached it by fastening on a clip, and the clip had slipped off, it ^^ ^ was held that there was no case to go to the jury in i^ifo.«v4***. 6 —r 1 r—i — • nals, a locomotive, or a tram. employers' liability act. 85 (2) The injured servant, or his represen- tatives, must give notice of his claim to the employer within six w eeks of the accident, A^ *~ unless, in case of death, the judge thinks / there was reasonable excuse for not giving it. ' (3) The action must be commenced by the injured servant within six mon ths, or by"" ^v^-? his personal representatives (if he is killed) - /2 " within tw elve m onths. (-4) The master may rely, by way of de- fence, on contributory negligence, and on the maxim volent t'non fit injuria [Thomas v. Quarter main, 1§ Q. B. D. G85) ; and also on any contract by which the workman has/ contracted himself out of the Act ( Griffiths v. \ Lord Dudley, 9 Q. B. D. 357). (5) The action must be brought in the County Court, but is removable, under very exceptional circ umstan ces^ to the Hi gh C ourt (see Munday v. Thames, Sfc. Co., 10 Q. B. D t 59). (6) The damage s are l imited to _ threj e j*^. years' .. average ear nings (see Borlick v. Head, 3 v«*<> **** 3± W.R. 102). **'*"* (1) Class of servants to which the Act applies. — It will be perceived that this Act applies only to a limited class of employees. Thus, a grocer's assistant, injured while lifting a heavy weight, is not a person ' Bu, to 86 TORTS IN GENERAL. engaged in manual labour within the meaning of the Act [Bound v. Lawrence, (1892) 1 Q. B. 206) ; nor is the driver of a tramcar {Cook v. North Met. Tramways Co., 18 Q. B. D. 683) ; nor an omnibus conductor (Morgan y.LojuL Gen. Omnibus Co., 13 Q. B. D. 832). (2) Defect or unfitness in ways, works, &c. — It will be perceived that the mere fact of a defect in, or unfitness of, plant, does not render the master liable, unless it be caused, undiscovered, or unremedied by hi s neg ligence or the n egligence _oj a servant whose duty it is to see t o the condition thereof. Thus, the mere fact that a machine is dangerous, does not render the master liable for an accident, unless the danger aiises from some defect in or unfitness of it for its purpose (JYalsh v. Whiteleij, 21 Q. B. D. 371). If it were otherwise, trade would be para- lysed, and all employments necessitating risk would be stopped. The employer must, however, use all due means to diminish the danger (see Heske v. Samuelson, 12 Q.B.D. 30; Foley -v. Garnett, 16 ib. 52; and Cripps v. Judge, 13 ib. 583) ; and if he omits to do so, he will be guilty of negligence which, coupled with the dangerous character of the machine, will be construed to render the latter defective [Morgan v. IlutcJiiits, 38 W. R. 412). As to the meaning of defects in ways, see McGiffen v. Palmer's 8fc. Co. (10 Q. B. D. 5). "Works" means works already com- pleted, and not works in process of construction (Howe v. Finch, 17 Q. B. D. 187). | (3) It maybe mentioned that the word " plant " I includes live stock, such as a vicious horse ( Yarmouth v. France, 19 Q. B. D. 647). employers' liability act. 87 (4) Negligence of superintendents. — Whore the plaintiff relies on the negligence being that of a person entrusted with superintendence, the latter must be a ge nuine superinte ndent, and not a mere fellow worker whose part in the joint labour necessi- tates his giving directions when to start or stop machinery (Shaffers v. Gen. Steam Nav. Co., 10 Q. B. D. 356; and KeUard v. Booke, 21 ib. 367) ; nor one who is a mere mouthpiece to carry the orders of the master himself to the other workers (Snotvden v. Baynes, 25 Q. B. D. 193). But, on the other hand, where a genuine superintendent voluntarily^ , assists in manual labour, that fact renders the master none the less liable for his negligence (Osborne v. Jackson, 11 Q. B. D. 619). A boy going about as mate to a carman may sue in respect of the latter's carelessness, as, prima facie, he is under his orders (MiUward v. Mid. By. Co., 14 Q. B. D. 68). To succeed under the latter part of this sub-section, the plaintiff must prove that there was negligence of a person in the employ of the defendant, to whose orders the plaintiff was bound to conform ; and that his injuries resulted from his having in fact conformed to those orders (Wild v. Way good, (1892) 1 Q. B. 783, dissenting from part of Lord Coleridge's judg- ment, in Howard v. Bennett, 58 L. J., Q. B. 129 ; and see also Moore v. Gimson, ib. 169). (5) Defective bye-law. — As to what does or does not constitute a defective bye-law, the reader is referred to Whatley v. Molhway (62 L. T. 639). (6) Negligence of railway servants having manage- ment of points, signals, locomotives, and trains. — A 88 TORTS IN GENERAL. person employed to shunt trucks by means of an hydraulic capstan, of which he had the management, may be a person having control of a train on a rail- way within the meaning of the Act, so as to render the railway company liable for his negligence {Cox {■h-.^.C: v. G. W. R. Co., 9 Q. B. D. 10G.) But, on the other hand, a person whose duty it is to oil, clean, /■ and adjust points, and signal wires, and apparatus, is not a person who has the management of points and signals within the meaning of the Act (G/'bbs v. >>4^; G w R Co ^ 12 q B D 208). The word rail- way is not confined to the railways of regular railway companies, but extends to temporary railways laid down by a contractor for the purpose of constructing works {Doughty v. Firbank, 10 Q. B. D. 358). (7) Notice of claim. — The contents and form of this notice are matters rather o f pro cedure than of law ; but, for the convenience of the practitioner, it h vui-Ja^ ma y }j e stated, that it should be i n wri ting {Moyle v. etc - Jenkins 8 Q. B. D. 118), and should state on the •/ . face of it the name and address of the injured servant, • „ eiddu*) an d the date and cause of the injury (Keen v. Milhoatt i^iUUn ttu-iuc. delivering it at, or sending it in a registered letter to, trTeplace of bu siness or residence of the employer. It need not, however, be technically accurate (Stone v. Hyde, 9 Q. B. D. 76; and see also Frevidi v. Gatti, 36 W. R. 670). ( 89 ) Chapter VII. OF THE LIMITATION OF ACTIONS FOR TORT. Reason for Limitation. — I have so far treated of the wrongs independent, or quasi independent, of con- tract, of which the law takes cognizance ; and I have shown how the law gives a remedy whenever it holds any act to be wrongful, in accordance with the maxim "nbijus ibi remedium es t." But although there is always a remedy, yet, for the sake of the peace of the kingdom, a man is not allowed to enforce his remedy at his own leisure, and after a long interval, in the course of which evidence may have been entirely swept away, which, if pro- duced, might prove the defendant's innocence. For this and other reasons, various statutes have been from time to time passed, which confine the right of action within certain periods after its com- mencement — periods which, as they differ in different actions, will be more particularly mentioned in the course of the second part of this work. At this stage, I propose to examine only such rules as apply to the limitation of all actions of tort. 90 TORTS IN GENERAL. Art. 25. — Commencement of Period. (1) When a statute limits the period within which an action is to be brought for a tort, then, if the cause of action is the Jnfringe- nient of a right, the action must be brought 1 within theprescribed period after the actual doing of the thing complained of. (2) But if the cause of action is not the infringement of a right, but merely damage resulting from a wrongful act or omission, the period of limitation is to be computed from the time when the party sustained the damage (Backhouse v. Bonomi, 9 II. L. C. 503 ; Mit- chell y. Darky Main Co., 11 App. Cas. 127). (3) And where a tort is fraudulently con- cealed, and the plaintiff has no reasonable means of discovering it, the statute only runs from the date of the discovery ( Gibbs v. Guild, 9 Q. B. D. 59). The meaning of this rule is, that where the tort is the wrongful infringement of a right, then as that constitutes per se a tort, so the period of limitation commences to run immediately from the date of the infringement. But, on the other hand, where the tort consists in the violation of a duty coupled with actual resulting damage, then, as the breach of duty is not of itself a tort, so the period of limitation does OF THE LIMITATION OF ACTIONS FOR TORT. 91 not commence to run until it becomes a tort by reason of the actual damage resulting from it. (1) Thus, where A. owned houses built upon land contiguous to land of B. 0. and D. ; and E., being the owner of the mines under the land of all these persons, so worked them that the lands of B. sank, and after more than six^jrea rs' interval (the pe riocU^r//W/> of limitatio n in ^act ions f or nan sing subsid ence) , ^/>mo/* ', their sinking caused an injury to A.'s houses: Held, that A.'s right of action was not barred, as the tort to him was the damage caused by the working/ of the mines, and not the working itself [Bac k"* ^ house v. Bo/iomi, sup.; Mitchell v. Darley Main Co., slip.). (2) But where a trespasser wrongfully worked and took away the plaintiff's coal, in consequence of which the surface of the plaintiff's land subsided, it was held that the statute commenced to run from the working and taking away of the plaintiff's coal, and not from the subsidence; on the ground that the working of the coal was a complete tort, aud that the subsidence was only a consequence of it (Spoor v. Green, L. JR., 9 Ex. 99). (3) In an action for wrongful conversion of goods (which is an injury to a right), the facts were as fol- lows : — A.'s furniture was seized under an execution by the sheriff, and eventually it was bought by A.'s friends, and left in his possession. A. enjoyed the use of it for more than six years, and died. Upon A.'s death it was claimed by these friends, and ad- versely by the widow, on the ground that the Statute of Limitations barred them from claiming it after *Jh *■• 92 TORTS IN GENERAL. they had allowed A. to keep it for six years : it was, however, held that the statute did not begin to run until the friends had claimed the furniture, for the /y \tort was the wrongful conversion of the goods, which /had only taken place when the widow refused to give them up {Edicards v. Clay, 28 Bene. 145). (4) A lease, belonging to the plaintiff, was fraudu- lently taken from him by his son, and deposited with B. to secure a loan made by B. to the plaintiff's son. The plaintiff was ignorant of this transaction. Sub- sequently, B. became bankrupt, and his trustee in bankruptcy assigned the leasehold premises for good consideration to the defendant. B. and the defen- / js^n dant were both ignorant of the fraud. The plaintiff then commenced an action against the defendant for conversion of the lease ; to which the defendant pleaded that the fraudulent deposit with B. was made more than six years before action brought, and that, consequently, the action was barred by the Statute of Limitations. The Court of Appeal, how- I ever, held that the statute only began to run when the plaintiff had a complete cause of action against the defendant, i. e., when he demanded the deed and was refused it, and not from the receipt of the deed by B. In giving judgment, Lord Esher, M. E., said, " I am of opinion that, in the present case, the Statute of Limitations does not apply ; it applies only to an action brought against the defendant in respect of a wrongful act done by the defendant him- self. The property in chattels, which are the subject- matter of this action, is not changed by the Statute of Limitations, though more than six years may OF THE LIMITATION OF ACTIONS FOR TORT. 93 elapse, and if the rightful owner recovers them, the other man cannot maintain an action against him in respect of them" {Miller v. Dell, (1891) 1 Q. B. 468; and see also Spademan v. Foster, 11 Q. B. D. 99). (5) It must, however, be borne in mind, that there is a great distinction between actions forjthe reco very of chattels, a nd act ions for the recovery of land. For th e Statutes of Limitation do not bar the riaht fo r. 6 \o. c hattel s after the prescribed peri od, but only ba r the^^^^i * plai)itiff^s__rcnicdy against the wrongdoer; whereas,^ ,$ ^ (the Real Property Limitation Acts bar and extin-^^ guish not merely the remedy bat also the right (see / 3 & 4 Will. 4, c. 27, s. 34, and 37 & 38 Vict. c. 57, s. 9). Consequently, if a plaintiff has allowed another to remain in possession of land, without acknowledgment, for twelve years, he will be barred, although he may never have demanded delivery up of possession (see Scott v. Nixon, 3 Dm. fy War. 388; Lethbridge v. Kirkman, 25 L. J., Q. B. 89 ; and Moulton v. Edmonds, 1 De G., F. # J. 250). Where, however, an intruder goes out of possession of land before acquiring a statutory title, the statute ceases to run, and the title of the true owner remains un- affected, even although he does not himself retake possession until after the expiration of the statutory period {Trustees, SfC Co. v. Short, 13 App. Cas. 793 ; 59 L. T. 677). 94 TORTS IN GENERAL. Art. 26. — Continuing Torts. Where the tort is continuing-, or recurs, a fresh right of action arises on each occasion (Whitehouse v. Felloivcs, 30 L. J., C. P. 305). (1) Thus, where an action is brought against a person for false imprisonment, every continuance of the imprisonme nt de die in_diem, is a newirnprison- ment ; and therefore the period of limitation com- <; >U U. mences to run from the last, and not the first day of w the imprisonment (Hardy v. Ryle, 9 B. 8f C. 608). (2) But where A. enters upon the land of B. and digs a ditch thereon, there is a direct invasion of B.'s rights, a completed trespass, and the cause of action for all injuries resulting therefrom commences to run at the time of the trespass. The fact that A. does not re-enter B.'s land and fill up the ditch does not make him a continuous wrongdoer and liable to re- ; peated actions as long as the ditch remains unfilled, even though there afterwards arises new and unfore- seen damage from the existence of the ditch (Kansas JPac. Ry. v. Mihhnan, 17 Kansas Rep. 224). (3) But where the defendants worked their mines too close to the plaintiff's land, and, in consequence, some cottages of the plaintiff were injured in 1868, of hkiisu\ and by reason of the same excavation, some more cottages were injured in 1882, it was held that the plaintiff was entitled to sue for the injuries suffered in 1882. For the tort did not consist in making the excavation, but in causing the plaintiff's land to subside ; and as often as it subsided a new OF THE LIMITATION OF ACTIONS FOR TORT. 95 | cause of action arose. The causa causans was, no doubt, the excavation, but the cause of action was the damage {Mitchell v. Darley Main Co., 11 App. Cos. 127). Art. 27. — Disability. Where a person is under disability, the statute only runs from the cesser of the dis- ability (21 Jac. 1, c. 16, s. 7; 3 & -1 Will. 4, c. 27, s. 16). But whenever the statute once begins to run, it continues to do so notwith- standing subsequent disability (Rhodes v. Smetlturst, 4 M. Sf W. 42 ; Lafond v. Ruddock, 13 C. B. 819). But no action to recover land or rent can be brought after thirty years, notwithstanding disability (37 & 38 Vict, c. 57, s. 5). By disa bility is meant infancy, lunacy, o r idiocy, and formerjv_coyerture ; but since the Married Women's Property Ac t, 1882, was passed, the latter is no longer disability, and where a tort was suffered by a married woman before that act, it has been held, that for the purposes of limitation, her right to sue first accrued on the passing of the act ( Wcldon v. Weal, 32 W. R. 828). 96 TORTS IN GENERAL. Chapter VIII. OF DAMAGES IN ACTIONS FOR TORT. The principles which govern the measure of damages in actions of tort are very loose ; and, indeed, as Mr. Mayne, in his excellent treatise, has pointed out, there are many cases of tort in which no measure can be given. It will be at once apparent, however, that, putting aside circumstances of aggravation or miti- gation, the compensation to be awarded in respect of an injury to property is capable of being far more accurately calculated than in respect of injury to person or reputation ; and, therefore, to some extent the principles of law are different in these two classes of cases, as will be seen from the following rules. Art. 28. — Damages for Personal Injury. There is no fixed rule for estimating ' damages in cases of injury to the person, re]Dutation, or feelings, and the finding of the jury will only be disturbed — \ (a) Where the damages awarded are out- ?*•*, \ rageously excessive (HacJrfev.Mone?/, OK DAMAGES IN ACTIONS FOR TORT. 97 2 Wils. 205 ; Praed v. Graham, 24 Q. B. D. 53 ; 59 L. J., Q. B. 230); (b) Where it appears that the jury acted under mistake or ill-feeling ; (c) Where they have given more than the plaintiff was, on his own showing, entitled to ; (d) Where the smallness of the award shows that they have either failed to take into consideration some essential element (Phillips v. L. <^y^v/ S. W. R. Co., 4 Q. B. D. 406), or have compromised the question (Britton v. S. Wales R. Co., 27 L. J., Ex. 355 ; Falvey v. Stanford, L. R., 10 Q. B. 54). In the words of an American court, "In actions sounding in damages, where the law furnishes no rule of measurement save the discretion of the jury upon the evidence before them, courts will not dis- turb a verdict upon the ground of excessive damages, unless it be so flagrantly improper as to evince pas- sion, prejudice, partiality, or corruption. Upon a mere matter of damages, where different minds might, and probably would, arrive at different re- sults, and nothing inconsistent with an honest exer- cise of judgment appears, the verdict should be left as the jury found it " (Miss. Cent. R. R. v. Caruth, 51 Miss. Rep. 77). U. H 98 TORTS IN GENERAL. (1) False Imprisonment. — Thus, where some work- ing men were unlawfully imprisoned for six hours only, being in the meantime well fed and cared for, and the jury nevertheless awarded 300/. to each of ' them, the court refused to set the verdict aside ; on the ground that it seemed to them probable that the jury considered the importance of the right of personal liberty rather than the position of the plaintiffs. (2) Seduction. — And so in actions for seduction, " although in point of form the action only purports to give a recompense for loss of service, we cannot shut our eyes to theTact that it is an action brought by a parent for an injury to her child, and the jury may take into their consideration all that she can feel 1 from the nature of the loss. They may look upon her as a parent losing the comfort as well as the ser- ' vice of her daughter, in whose virtue she can feel no consolation ; and as the parent of other children whose morals may be corrupted by her example " (per Ld. Eldon, Bedford v. M'Koicl, 3 Esp. 120). (3) Assault. — So in actions for assault and battery, the court will seldom interfere; and the jury may take the circumstances into consideration, and aggra- vate or mitigate the damages accordingly. Thus, to beat a man publicly, is a greater insult and /( //-/ [ injury than to do so in private, and is accordingly \ ground for aggravation of damages [TulUdge v. Wade, * 8 Wits. 18). y* (4) Defamation. — So for defamation, the damages are almost wholly in the discretion of the jury {Kelly v. Sherlock, L. JR., 1 Q. B. 686), and the court will OF DAMAGES IX ACTIONS FOR TORT. 99 not interfere with their verdict, unless, having regard to all the circumstances, the damages awarded are so large that no twelve reasonable men could have given them (Praed v. Graham, supra). I Art. 29. — Damages for Injur// to Property. (1) The damages in respect of injuries to property are to be estimated upon the basis of being compensatory for the deterioration in value caused by the wrongful act of the defendant, and for all natural and necessary ^ expenses incurred by reason of such act (see 7) crA c Rust v. Victoria Dock Co., 56 L. T. 216). (2) Where the plaintiff is merely the pos- sessory and not the real owner, he may, as against the defendant, recover the entire value ; but as against the real owner, only the value of his limited interest {Heydon and Smith's Case, 13 Co. 68). (1) Injury to Horse. — Thus, in the case of injury to a horse through the defendant's negligence, it has been held that the measure of damages is the keep \'otus t> of the horse at the farrier's, the amount of the farrier's bill, and the diffe rence b etween the_prior and subse quent value of th e horse ( Jones .Y r .£ oi/ee, 1 Stark. 493; and see Wilson v. Newport Dock Co., L. P., 1 Ex. 187). h2 100 TORTS IN GENERAL. (2) Conversion. — So, for the conversion of chattels, the full market value of the chattel at the date of the conversion, is, in the absence of special damage, the true measure. Thus, where the plaintiff purchased champagne, lying at the defendant's wharf, at fourteen shillings per dozen, and resold it at twenty-four shillings to the captain of a ship ahout to leave England, and the defendants wrongfully refused to ^ deliver up the wine, and converted it to their own rtf"/ use, it was held, in an action of trover, that although the defendants had no knowledge of the sale, or of the purposes for which the plaintiff required delivery of the champagne, yet the plaintiff was entitled as damages to the price at which he had sold it (France v. Gaudet, L. R., 6 Q. B. 199). (3) Trespass. — So, where coal has been taken, by working into the mine of an adjoining owner, the trespasser will be treated as the purchaser at the pit's mouth, and must pay the market value of the coal at the pit's mouth, less the actual disbursements (not including any profit or trade allowances) for severing and bringing it to bank, so as to place the owner in the same position as if he had himself severed and raised the coal (In re United Merthyr Coll. Co., L. R., 15 Eq. 46). Art. 30. — Consequential Damages. Where any special damages have naturally, and in sequence, resulted from the tort, they may be recovered : but not otherwise. OF DAMAGES IN ACTIONS FOR TORT. 101 The difficulty in cases under this rule, is to deter- mine what damages are the natural result, and what are too remote. (1) Loss of Business. — If, through the wilful or negligent conduct of another, one should receive corporal injury, whereby he is partially or totally prevented from attending to his business, the pecu- >y . ,, . . niary loss suffered in consequence may be recovered /■ s n . A {Phillips v. S, IF. Ry. Co., 4 Q. B. D. 406). But in a /^ r / c recent case, it has been held that mere mental shock due entirely to fright, and not arising from corporal injury, was too remote to afford a ground for damages ( Victorian Ry. Comms.v. Coultas, 13 App. Gas. 222 ; 57 L. J., P. C. 69 (a)). Money received by the plaintiff from an accidental insurance company cannot be taken into account (Bradburn v. G. W. Ry. Co., L. R., 10 Ex. 1). As to loss of freight caused by collision, see The Argentino (13 P. D. 191; 58 L. J., P. fy D. 1). (2) Medical Expenses. — So, the medical expenses incurred may be recovered if they form a legal debt owing from the plaintiff to the physician, but not otherwise [Dixon v. Bell, 1 Stark. 289 ; and see Spark v. Hcslop, 28 L. J., Q. B. 197). Seeing, how- ever, that counsel's fees are allowed as part of the costs of a successful litigant, this distinction seems somewhat absurd. (3) Loss of Property. — The plaintiff was travelling with other passengers in the carriage of a railway company, and, on the tickets being collected, there was found to be a ticket short. The plaintiff was (a) This case was recently dissented from by the Irish Ex. Div. in Bell v. G. N. Ry. Co., 26 L. R., Ir. 428. 3<\ 102 TORTS IN GENERAL. / c wrongly charged by the collector with being the defaulter, and, on his refusing to pay, was removed by the officers of the company, but without unnecessary / violence. In an action for assault, it was held, that the loss of a pair of race-glasses, which the plaintiff had left behind him in the carriage when he was removed, and which were not proved to have come into the possession of any of the company's servants, was not such a natural consequence of the assault as to be recoverable [Glover v. L. ty 8. W. B. Co., L. B., 3 Q. B. 25 ; and see as to remoteness, Sanders v. Stuart, 1 C. P. D. 326). I (4) Lord Campbell's Act. — The damages awarded under Lord Campbell's Act to the relatives of per- sons killed through the default of the defendant, should be calculated in reference to a reasonable ex- pectation of pecuniary benefit, as of right or other- wise, from the continuance of the life of the deceased (Franklin v. 8. E. B. Co., 3 //. 8f JSf. 211). But the jury cannot, in such cases, take into consideration the grief, mourning and funeral expenses to which the survivors were put. And this seems reasonable ; for, in the ordinary course of nature, the deceased r.fad ft-u, would have died sooner or later, and the grief, mourning, and funeral expenses would have had to be borne then, if not at the time they were borne (Blake v. Mid B. Co., 21 L. J., Q. B. 233 ; Dalton v. 8. E. B. Co., 27 L. J., C. P. 227). (5) And, on the same principle, where a deceased had made provision for his wife, by insuring his life in her favour, then, inasmuch as she is benefited by the accelerated receipt of the amount of the policy, the jury ought, in estimating the widow's loss, to deduct OF DAMAGES IN ACTIONS FOR TOUT. 103 from the future earnings of the deceased, not the amount of the policy moneys, but the premiums which, if he had lived, he would have had to pay out of his earnings for the maintenance of the policy {Grand Trunk R. Co. v. Jennings, 13 App. Cas. 800). (6) Injury to Trade. — So, in estimating the damages in an action for libelling a tradesman,^ the jury should take into consideration the pro- h-t'fff* spective injury which will probably happen to hisAV»^r/*« trade in consequence of the defamation (Gregory v. Williams, IC.SfK. 568). (7) Hiring Substitute. — In cases of wrongful con- version, if the owner of the chattel has been obliged to hire another in its place, the expense to which he has been put is recoverable {Ad. 403). (8) Trespass. — Where the defendant was in charge of the plaintiff's house, and having one day lost the key, he effected an entrance through the window by means of a ladder, and showed some strangers through the house, it was held to be a trespass ; for he was only authorized to enter in the ordinary way. Therefore, when some short time afterwards the house was entered through the same window by //„ «u ^ thieves following his example, and many things y fy,// f stolen, it was held to be the consequence of the de- fendant's wrongful entry, and that he was liable for the loss of the things stolen {Aucader v.. Milling, 2D. Sf R. 714). I, however, entertain little doubt that this case would not be followed in the present day, as the alleged damage cannot (with great submission to the learned judges who decided the case) be said to have been the natural result of the trespass, even if a trespass was committed. 104 TORTS IN GENERAL. (9) Infection. — A cattle-dealer sold to the plaintiff a cow, fraudulently representing that it was free from infectious disease, when he knew that it was not; and the plaintiff having placed the cow with V rhitx five others, they caught the disease and died. It was held that the plaintiff was entitled to recover as damages the value of all the cows, as their death was the natural consequence of his acting on the faith of the defendant's representation [Mullet \. Mason, L. P., 1 C. P. 559). (10) Collision. — In collision cases, the loss of earnings from a second voyage for which the ship was let, is not too remote ( The Argentino, 14 App. Cas. 519; GIL. T. 706). (11) So, where a steamer (wholly to blame) collided with a sailing vessel, and destroyed its instruments of_navigation, and in consequence of / that loss, the sailing ship ran ashore, and was lost I while making for port, it was held that the loss of the ship was the natural result of the collision, and that the steamer was liable [The City of Lincoln, 15 P. D. 15 ; 59 L. J., P. 8f D. 1). (12) Floodwater. — In Collins v. The Middle Level Commissioners [L. P., 4 C. P. 279) the facts were as follows : By a drainage act, the commissioners were to construct a cut, with proper walls, gates and sluices to keep out the waters of a tidal river, and also a culvert under the cut to carry the drainage from the lands on the east to the west of the cut, and to keep the same at all times open. In consequence of the negligent construction of the gates and sluices, the waters of the river flowed into the cut, and, bursting its western bank, flooded the adjoining OF DAMAGES IN ACTIONS FOR TORT. 105 lands. The plaintiff and other owners of lands on the east side of the cut, closed the lower end of the culvert, which prevented the waters overflowing their lands to any considerable extent ; but the occupiers of the lands on the west side, believing that the stoppage of the culvert would be injurious to their lands, re-opened it, and so let the waters through on to the plaintiff's lands to a much greater extent. It was held, that the commissioners were liable for the whole of the damage, as the natural result of their negligence. (13) Having been obliged to pay Damages to a Third Party. — So, again, a landlord, upon his tenant giving notice to quit, entered into a contract with a new j$ ra ^/i tenant. Upon the expiration of the notice, the first ftcj^ tenant refused to quit, and the new tenant not being/^.,/^ , able to enter in consequence, brought an action against the landlord for breach of contract. It was held, that the landlord might recover, in an action against the tenant, the costs and damages to which he had been put in the action against himself ; for they were the natural and ordinary result of the defendant's wrong {Bramley v. Chesterton, 2 C. B., N. 8. 605 ; and see Tindale v. Bell, 11 M. 8f W. 228). Art. 31. — Prospective Damages. (1) The damages awarded must include the probable future injury which will result to the plaintiff from the defendant's tort. 106 TORTS IN GENERAL. ltd (2) But where an act of the defendant is merely the causa causans, and the actual cause of action (/'. e., the tort) is injury to the plaintiffs property, then each such injury constitutes a fresh cause of action. (1) In Richardson v. Mellish (2 Bing. 240), Best, C. J., said : — " "When the cause of action is complete, when the whole thing has but one neck, and that neck has been cut off by one act of the defendant, it would be mischievous to say — it would be increasing litigation to say — ' You shall not have all you are entitled to in your first action, but you shall be driven to a second, third, or fourth for the recovery of your damages.' " A corollary to this rule is, that several actions cannot be brought in respect of the same injury. Therefore, where a bodily injury at first appeared slight, and small damages were awarded, but subsequently it became a very serious injury, it was held that another action would not lie ; for the action having been once brought, all damages arising out of the wrong were satisfied by the award in the action {Fetter v. Beat, 1 Ld. Raym. 339 — 692). (2) But if the tort be a continuing tort, the prin- ciple does not apply; for in that case a fresh cause of action arises de die in diem. Thus, in a continuing trespass or nuisance, if the defendant does not cease to commit the trespass or nuisance after the first action, he may be sued until he does. Whether, however, there is a continuiug tort, or merely a continuing damage, is often a matter of difficulty to determine. fin/tM y Jfittiy /*/*<* fi 7 OF DAMAGES IN ACTIONS FOR TORT. 107 (3) In the recent case of Mitchell v. Barley Main Co. (11 App. Cas. 127), the defendant worked his mines too close to the plaintiff's property, and in consequence some cottages of the plaintiff were in- jured in 1868, and were repaired by the defendant. In 1882, in consequence of the same workings which caused the damage of 1868, a further subsidence took place, and the plaintiff's cottages were again injured. The case turned on the question of whether the plaintiff was barred by the Statute of Limitations, but incidentally it was decided that the tort was not the excavation, but the causing the plaintiff's land to subside. The excavation was no doubt the remote cause of the tort (the causa causa us), but the tort itself was the infringement of the plaintiff's right of support, and consequently each separate subsidence was a distinct and separate cause of action. (4) So, also, where the same wrongful act causes damage to goods, and also damage to the person, it has been held that there were two distinct causes of i action, for which separate proceedings might be pro- secuted (Brunsdcn v. Ilumplireg, 14 Q. B. B. 141, Coleridge, C. J., dissentiente). -. ^UAU^- Art. 32. — Aggravation and Mitigation. The jury may look into all the circum- stances, and at the conduct of both parties, and see where the blame is, and what ought to be the compensation according to the way 108 TORTS IN GENERAL. the parties have conducted themselves [Davis v. L. Sf N. W. It Co., 7 W. E. 105). (1) Seduction under Guise of Courtship. — In seduc- tion, if the defendant have committed the offence under the guise of honourable courtship, that is ground for aggravating the damages ; not, however, on account of the breach of contract, for that is a separate offence, and against a different person. " The jury did right in a case where it was proved that the seducer had made his advances under the guise of matrimony, in giving liberal damages ; and if the party seduced brings an action for breach of promise of marriage, so much the better. If much greater damages had been given, we should not have been dissatisfied therewith, the plaintiff having re- ceived this insult in his own house, where he had civilly treated the defendant, and permitted him to pay his addresses to his daughter " (Wilmot, C. J., in TuWdge v. Wade, 3 Wils. 18). (2) On the other hand, the previous loose or im- moral character of the party seduced is ground for mitigation. The using of immodest language, for instance, or submitting herself to the defendant under circumstances of extreme indelicacy. (3) Plea of Truth in Defamation. — In actions for defamation, a plea of truth is matter of aggravation unless proved, and may be taken into consideration by the jury in estimating the damages [Warwick v. Fouttc$JL2 M. 8f W. 508). (4) Plaintiff's bad Character in Defamation. — Evi- dence of the plaintiff's general bad character is allowed J#l OF DAMAGES IN ACTIONS FOR TORT. 109 in mitigation of damages in cases of defamation ; for, as is observed in Mr. Starkie's book on " Evidence," " To deny this, would be to decide that a man of the worst character is entitled to the same measure of damages with one of unsullied and unblemished reputation. A reputed thief would be placed on the same footing with the most honourable merchant ; a virtuous woman with the most abandoned prostitute." Such evidence cannot, however, be given, unless the facts on which the defendant relies to support his contention are expressly pleaded, so as to enable the plaintiff to meet them if he can (see Judgment of Cave, J., in Scott v. Sampson, 8 Q. B. D. 491, and cases there cited) . But although evidence of general bad character is admissible if pleaded, evidence of rumours and suspicions to the same effect as the defamatory matter is not admissible, as they only in- directly tend to affect the plaintiff's reputation (ib.). (5) Plaintiff's irritating Conduct in Defamation. — In Kelly v. Sherlock {L. B., 1 Q. B. 686), the action was brought in respect of a series of gross and offensive libels contained in the defendant's newspaper. It appeared, however, that the first libel was written because the plaintiff preached, and pub- lished in the local papers, two sermons reflecting on the magistrates for having appointed a Roman Catholic chaplain to the borough gaol, and on the town council for having elected a Jew as their mayor. The plaintiff had, also, soon after the libels had commenced, alluded to the defendant's paper, in a letter to another paper, as " the dregs of provincial journalism," and he had delivered from the pulpit, 110 TORTS IN GENERAL. and published, a statement to the effect, that some of his opponents had been guilty of subornation of perjury in relation to a charge of assault of which the plaintiff had been convicted. The jury having returned a verdict for a farthing damages, the court refused to interfere with the verdict on the ground of its inadequacy, intimating that, although, on account of the grossness and repetition of the libels, the verdict might well have been for larger damages, yet it was a question for the jury, taking the plaintiff's own conduct into consideration, what amount of damages he was entitled to, and that the court ought not to interfere. (6) Imprisonment on False Charge of Felony. — In false imprisonment and assault, if the imprisonment has been upon a false charge of felony, where no felony has been committed, or no reasonable ground for suspecting the plaintiff, this will be matter of aggravation. (7) Battery in consequence of Insult. — But if an assault and battery have taken place in consequence of insulting language on the part of the plaintiff, this will be ground for mitigating the damages {Thomas v. Powell, 7 C. 8f P. 807). (8) Insolent Trespass. — Where a person trespassed upon the plaintiff's land, and defied him, and was otherwise very insolent, and the jury returned a verdict for 500/. damages, the court refused to inter- V jt«; fere, Chief Justice Gibbs saying, " Suppose a gentle- Tnan has a paved walk before his window, and a man intrudes, and walks up and down before the window, and remains there after he has been told to go away, OF DAMAGES IN ACTIONS FOR TORT. Ill and looks in while the owner is at dinner, is the trespasser to be permitted to say, ' Here is a half- penny for you, which is the full extent of all the mischief I have done '? Would that he a compen- sation ?" [Merest v. Harvey, 5 Taunt. 441 ; Reeves v. Penrose, 26 L. K, Jr. 142. (9) Wrongful Seizure. — And so where the defen- dant wrongfully seizes another's chattels, and exer- cises dominion over them, substantial damages will be awarded for the invasion of the right of owner- ship (Bai/lissv. Fisher, 7 Bing. 153). (10) Causing Suspicion of Insolvency. — And where the defendant took the plaintiff's goods under a false claim, whereby certain persons concluded that the plaintiff was insolvent, and that the goods had been^. seized under an execution, it was held that exem- plary damages might be given (Bracer v. Dae, 11 M. 8f W. 629). Art. 33. — Presumption of Damage against a Wrong-cloer. If a person who has wrongfully converted property, refuses to produce it, it will be pre- sumed as against him to be of the best de- scription (Armory y. Delamirie, 1 Sm. L. Ca. (1) Thus, in the above case, where a jeweller who had wrongfully converted a jewel which had been shown to him, and had returned the socket only, 112 TORTS IN GENERAL. refused to produce it iu order that its value might be ascertained, the jury were directed to assess the damages on the presumption that the jewel was of the finest water, and of a size to fit the socket ; for 1 Omnia pnesumnntur contra spoliatorem. (2) So, where a diamond necklace was taken away, and part of it traced to the defendant, it was held that the jury might infer that the whole thing had come into his hands [Mortimer v. Cradoch, 12 L. J., C. P. 166). Art. 34. — Damages in Actions of Tort founded on Contract. The damages in actions of tort founded upon contract must be estimated in the same way as they are estimated in breach of contract ; for a man cannot, by merely changing the form of his action, put himself in a better position (see Chinery v. Viall, 5 IT. $• N. 295 ; Johnson v. Stear, 33 L. J., C. P. 130). Therefore, since in breaches of contract the damages are limited to injuries which may reasonably be pre- sumed to have been foreseen by both parties at the time of contracting, a man cannot sue for extra- ordinary, though consequential, damages, unless those damages were within the contemplation of both par- ties at the time of making the contract, either by express intimation [Hadley v. Baxendalc, 9 Ex. 354 ; OF DAMAGES IN ACTIONS FOR TORT. 113 Sanders v. Stuart, 1 C. P. D. 326), or by implication from the surrounding circumstances (Simpson, v. L. 8c N. W. R. Co., 1 Q. B. D. 274 ; Jameson v. Mid. By. Co., 50 L. T. 426 ; Schultze v. G. E. By. Co., 19 Q. B. D. 30 ; and Waddell v. Blockey, 4 Q. B. D. 678). Art. 35. — Joint Tort-feasors. (1) Persons who jointly commit a tort may be sued jointly_or soy orally; and if jointly, the damages may be levied from both or either {Hume v. Oldacre, 1 St 252 ; Blair v. Deakin, 57 L. T. 522). j (2) A ju dgme nt against one of several tort- ' feasors is a bar to an action against the others, even although the judgment may remain unsatisfied (Brinsmead v. Harrison, L. B., 7 C. P. 547). (3) A release of one of several tort-feasors ( is a bar to an action against the others ; but a mere covenant not to sue one of them is not (see Duck v. Mayeu, (1892) 2 Q. B. 511). (4) If damages are levied upon one only, then (a) where the tort consists of an act or omission, the illegality of which he must be presumed to have known, he will have no right to call upon the others to contribute (Merry weather v. Nixon, 8 T. B. 186). But •' «>\ 114 TORTS IN GENERAL. (b) where the tort consists of an act not obviously unlawful in itself {e.g., trover by a person from whom the same goods are claimed by adverse claimants), he may claim con- tribution or indemnity against thgjparty really responsible for the tort ; and this right is not confined to cases where he is the agent or servant of the other tort-feasor {Dug dale v. levering, L. E., 10 0. P. 196; Adamson v. JerviSj 4 Bing. 72 ; Belts v. Gibbins, 2 A. Sf B. 57; Dixon v. Fawcus, 30 L. J., Q.B. 137). ( 115 ) Chapter IX. OF INJUNCTIONS TO PREVENT THE CONTINUANCE OF TOUTS. Definition. — An injunction is an order of the Court of_ Appeal, or the High Court of Justice, or any di vi- sion_orjudge of either of them, or of a county court (a), restraining the commission or continuance of some I act of the defendant. Interlocutory or perpetual. — Injunctions are either interlocutory or perpetual. An interlocutory injunc- tion is a temporary injunction, granted summarily on motion founded on an (affidavit, and J before the facts in issue have been formally tried and deter- mined. A perpetual injunction is one which is granted after the facts in issue have been tried and determined, and is given by way of final relief. Art. 36. — Injuries Remediable by Injunction. (1) Wherever a legal right, whether in regard to property or person, exists, a viola- («) A county court has now, in actions within its jurisdic- tion, power to grant an injunction against a nuisance, and to commit to prison for disobedience thereof {Ex parte Martin, 4 Q. B. D. 212; Martin v. Bannister, ib. 491). i2 11G TORTS IN GENERAL. tion of that right will be prohibited in all cases where the injury is such as_is not sus- ceptible of being adequately compensated by damages, or at least not without the necessity of a multiplicity of actions for that purpose (Aslatt v. Corporation of Southampton, 16 Ch. D. 143). (2) An injunction will not be granted where the injury is trivial in amount, or where the court, in its discretion, considers that damages should alone be given (b) [Kino v. Rudkin, 6 Ch. D. 160 ; Fritz v. Ilobson, 14 Ch. D. 542 ; and Warivich, Sfc. Canal v. Barman, 63 L. T. 670). (3) To entitle a plaintiff to an interlocutory injunction, the court must be satisfied that there is a serious question to be tried at the hearing, and that, on the facts before it, there is a probability that the plaintiff is entitled to relief [per Cotton, L. J., Preston v. Luck, 27 Ch. D. p. 506). An interlocutory injunction (b) This jurisdiction was first conferred on the Court of Chancery by Lord Cairns' Act (21 & 22 Vict. c. 27). That Act was, however, repealed by the Statute Law Revision Act, 1883; but sect. 5, sub-s. (b), seems to have preserved the jurisdiction, although it was apparently unnecessary, having regard to the powers given by the Judicature Acts to grant either an injunction or damages (see per Baggallay, L. J., Sayers v. Collyer, 28 Ch. D. 108, and Serrao v. Noel, 15 Q. B. D. 549). INJUNCTIONS TO PREVENT CONTINUANCE OF TORTS. 117 to restrain a libel will only be granted in the clearest cases {Bonnard v. Ferryman, (1891) 2 Ch. 269). (1) Thus, where substantial damages would be, or have been, recovered for injury done to land, or the herbage thereon, by smoke or noxious fumes, an in- ^_ junction will be granted to prevent the continuance of the nuisance ; for otherwise the plaintiff would ^ • Sk have to bring continual actions (Tipping v. St. Helens ■'■ . Smelting Co., L. E., 1 Ch. G6). (2) And so where a railway company, for the purpose of constructing their works, erected a mortar mill on part of their land close to the plaintiff's place of business, so as to cause great injury and annoyance to him by the noise and vibration, it wasT held that he was entitled to an injunction to restrain - the company from continuing the annoyance (Fen- ■> wick v. East London E. Co., L. E., 20 Eq. 544; but see Harrison v. Southward, 8fc. Water Co., (1891) 2 Ch. 409, in which the former case was dis- tinguished) . (3) As the atmosphere cannot rightfully be in- fected with noxious smells or exhalations, so it should not be caused to vibrate in a way that will wound the sense of hearing. Noise caused by the ringing of church bells, if sufficient to annoy and ^ 6 disturb residents in the neighbourhood in their homes or occupations, is a nuisance, and will be prohibited (Soltau v. Be Held, 2 Sim. iV". S. 133 ; Harrison v. St. Mark's Church, 15 Albany Law J. 248). 118 TORTS IN GENERAL. (4) So, where one has gained a right to the free access of light to his house, and buildings are erected which cause a substantial privation of light sufficient to render the occupation of the house uncomfortable, or to prevent the plaintiff from carrying on his accustomed business on the premises, an injunction will be granted if the deprivation of light is such as would support a claim for substantial damages. For, as was said by Sir ~W. Page Wood, V.-C, in Dent v. Auction Mart Co. (L. JR., 2 JEq. 246), "Having arrived at this conclusion with regard to the remedy which would exist at law, we are met with the further difficulty, that in equity we must not always give relief (it was so laid down by Lord Eldon and Lord Westbury) where there would be relief given at law. Having considered it in every possible way, I cannot myself arrive at any other conclusion than this, that where substantial damages would be given at law, as distinguished from some small sum of 51., 101., or 20/., this court will interpose, and on this ground, that it cannot be contended that those who are minded to erect a building that will inflict an injury upon their neighbour, have a right to pur- chase him out, without an act of parliament for that purpose." Sir Gr. Jessel, M. R., commenting upon the above passage in Aynsley v. Glover (L. R., 18 Eq. 552), says : "It seems to me that that gives a reason- able rule, whatever the law may have been in former times. As I understand it, the rule now is — and I shall so decide in future, unless in the meantime the Appeal Court shall decide differently, — that wherever an action can be maintained at law, and really sub- INJUNCTIONS TO PREVENT CONTINUANCE OF TORTS. 119 stantial damages, or perhaps I should say consider- able damages (for some people may say that 20/. is substantial damages), can be recovered at law, there the injunction ought to follow in equity ; generally, not universally, because I have something to add upon that subject." His Lordship then, commenting upon the power given to him of awarding damages in substitution for an injunction, proceeded as fol- lows: " It must be for the court to decide, upon con- sideration, to what cases the enactment (21 & 22 Vict. c. 27) should be held to apply. In the case of The Curriers' Company v. Corbett (2 D. fy Sm. 355), we have an instance in which a judge has said that the act ought to apply in some cases. I had one before me, in which, there being comparatively a very trifling injury, although sufficient perhaps to maintain an injunction, comparing that with the injury inflicted upon the defendant, I thought, under the special circumstances, damages should be given instead of an injunction. I am not now going, and I do not suppose that any judge will ever do so, to lay down a rule which, so to say, will tie the hands of the court. The discretion being a reasonable dis- cretion, should, I think, be reasonably exercised, and it must depend upon the special circumstances of each case whether it ought to be exercised. The power has been conferred, no doubt usefully, to avoid the oppression which is sometimes practised in these suits by a plaintiff who is enabled — I do not like to use the word ' extort,' but — to obtain a very large sum of money from a defendant, merely because the plaintiff has a legal right to an injunc- 120 TOUTS IN GENERAL. tion. I think the enactment was meant, in some sense or another, to prevent that course being suc- cessfully adopted. But there may be some other special cases to which the act may be safely applied, and I do not intend to lay down any rule upon the subject. If I had found by the evidence, that there was in this case a clear instance of very slight damage to the plaintiffs — that is, some 20/., or 30/., or 40/., but still very slight — I should be disposed to hold that that was a case in which this court would decline to interfere by injunction, having regard to the new power conferred upon me by Lord Cairns' Act to substitute damages for it" (and see also Smith v. Smith, L. P., 20 Eq. 505 ; Nat. Provincial Plate Glass Co. v. Prudential Ass. Co., 6 Ch. D. 757; Kino v. Pudkin, ib. 160; and Holland v. Worley, 26 Ch. D. 578). (5) And so it has been laid down in an American court, that injunctions are to prevent irreparable mis- chief, and stay consequences that cannot be ade- quately compensated ; their allowance is discretionary and not of right, calls for good faith in the plaintiff, and may be withheld if likely to inflict greater injury than the grievance complained of. It is an irre- 23arable injury to create intolerable smells near the homestead of a neighbour, or to undermine his house by excavations ; to cut him off from the street by buildings or ditches, or otherwise destroy the com- fortable, peaceful and quiet occupation of his home- stead ; also to break up his business, destroy its goodwill, and inflict damages that cannot be mea- sured, because the elements of reasonable certainty INJUNCTIONS TO PREVENT CONTINUANCE OF TORTS. 121 are wanting in computing them {Edwards v. Alloucz, 8fc, 38 Michigan Rep. 46). (6) Formerly (1) if the plaintiff was out of posses- sion, an injunction against a trespasser was refused, except in cases of fraud, collusion, or destruction of the estate; and it was necessary that an action to try the right should he pending. (2) If the plain- tiff was in possession, the right to an injunction depended upon the fact of the trespass being by a stranger, or under a claim of title {Stanford v. Hurl- stone, 9 Ch. App. 116). All such distinctions are, ' however, abolished by sec£. 25, sub-sect. 8 of the * Judicature Act, 1873 {Anglo-Italian Bank v. Dalies, 9 Ch. Zr2S6Tf and see Harrison v. Duke of Rutland, 4 * (1893) 1 Q. B. 154; and Micklcthcaite v. Vincent, 67 L. T. 225. (7) Where the sewage of a town was carried from a brook which, passing through a man's land, fed a lake also on such land, and the sewage thus dis- charged had for several years fouled the water of -, -r the lake, so that from being pure drinking water it gradually became quite unfit for drinking, an injunc- tion was granted {Goldsmid v. Tunbridgc Wells Im- provement Corns., L. R., 1 Eq. 161). (8) Again, deprivation of lateral or subjacent sup- port, in cases where a jury would give considerable damages, is sufficient ground for an injunction. So also, a mandatory injunction will be granted for the removal of an obstruction to a householder's access to a public highway {Ramuz v. Southend Local Board, 67 L. T. 169). (9) So infringements of trade marks, copyright, 11 122 TORTS IN GENERAL. and patent, right, aro peculiarly remediable by in- junction ; for not only are they continuing wrongs to proprietary rights, but damages never could properly compensate the persons whose rights are invaded. (10) It was formerly held that an injunction could not be granted to restrain the publication of a per- sonal libel, even where it injuriously affected pro- perty (Gee v. Pr it chard, 2 Swan. 402 ; Clark v. Free- man, 11 Beav. 112; Prudential Assurance Co. v. Knott, 10 Ch. App. 142). However, since the Judicature Act, 1873, the court has power to grant an injunc- tion wherever it may appear to be just or convenient (sect. 25 (8)). For some time the court was inclined to restrict this power to cases where a libel pre- judicially affected property (Thorleifs Cattle Food Co. v. Massam, 6 Ch. D. 582; 14 ib. 763) ; but, i n Aslatt v. Corporation of Southampton (16 Ch. D. 148), the late Sir George Jessel, M. R., said: — "I do not think that the interference of the court is absolutely con- fined to that now ; there may be cases in which the court would interfere even where personal status is the only thing in question." That view has since been confirmed, and it may now be considered settled that the court has jurisdiction to grant injunctions to restrain the publication of all libels (see per Lord Coleridge, C. J., in Bonnard v. Ferryman, (1891) 2 Ch. at p. 283; Quartz Hill, $c. Co. v. Beall, 20 Ch. D. 501 ; Liverpool, Sfc. Association v. Smith, 37 Ch. F>. I 170) ; or even oral slanders (Hermann Loog v. Bean, 26 Ch. D. 306). Thus, injunctions have been granted to restrain libels denying the validity of an alder- man's election (Aslatt v. Corporation of Southampton, INJUNCTIONS TO PREVENT CONTINUANCE OF TORTS. 123 supra), or imputing "sweating "to a manufacturer (Collard v. Marshall, (1892) 1 Ch. 571 ; and see also Pink v. Federation of Trades Unions, 67 L. T. 258 ; and Lee v. Gibbings, lb. 2G3). However, the court 'is extremely chary of granting interlocutory injunc- tions in cases of libel. As Lord Coleridge said in Bonnard v. Ferryman {supra) : " The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done ; and unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. . . . We entirely approve of, and desire to adopt as our own, the language of Lord Esher, M. E,., in Coidson v. Coulson (3 Times L. JR. 846) : ' To justify - ' the court in granting an interim injunction, it must come to a decision upon the question of libel or no libel, before the jury have decided whether it was a libel or not. Therefore the jurisdiction was of a delicate nature. It ought only to be exercised in the clearest cases, where any jury would say that the matter complained of was libellous, and where, if the jury did not so find, the court would set aside the verdict as un- reasonable' " (see also Salomons v. Knight, (1891) 2 Ch. 294). (11) The court has held that the writer of private letters has such a qualified property in them as will entitle him to an injunction to restrain their publi- cation by the party written to, or his assignees (Drew. Inj. 208 ; Pope v. Curl, 2 At. 341). And the party 124 TORTS IN GENERAL. written to has such a qualified right of property in them as will entitle him, or his personal representa- tives, to restrain their publication by a stranger, unless such right is displaced by some personal equity, or by grounds of public policy (Drew. Inj. 309 ; Granard v. Dunkin, 1 Ball 8f B. 207; Perceval v. PMpps, 2 V. fy B. 19). However, it does not now seem necessary to assume any such right of property in order to give the court jurisdiction, as an injunc- tion may be granted to prevent a wrong arising out of mere breach of confidence, e.g., publication by a photographer of a customer's portrait [Pollard v. Photo. Co., 40 Ch. D. p. 354). / Art. 37. — Threatened Injury. The court will not in general interfere until an actual tort has been committed ; but it may, by virtue of its jurisdiction to restrain acts which when completed will result in a ground of action, interfere before any actual tort has been committed, where it is satisfied that the act complained of will inevitably result in a nuisance or tresrjass (Kerr, Inj. 339). So where a man threatens, or begins to do, or insists upon his right to do, certain acts, the court will interfere before any actual damage or infringe- ment of any right has actually taken place, if the INJUNCTIONS TO PREVENT CONTINUANCE OF TOUTS. 125 circumstances are such as to enable it to form an opinion as to the legality of the acts complained of and the irreparable injury which will ensue {Palm or v. Paul, 2 L. J. Ch, 154 ; Elliott v. N. E. E. Co., 10 II. L. Cas. 333; Phillips v. Thomas, 62 L. T. 793). An injunction will not, however, be granted in a quia timet action unless the plaintiff makes out a strong case of probability that the apprehended mischief will in fact arise {Attorney- General v. Mayor • * of Manchester, (1893) 2 Ch, 87). Thus, where a / . proposed smallpox hospital was 250 yards from the / nearest house and 200 yards from the nearest road and the medical evidence was conflicting, it was held that in the absence of strong medical evidence that the proposed hospital would be a nuisance, no in- junction could be granted {lb. ; and see Fletcher v. Peaky, 28 Ch. D. 688 ; and see also Savory v. Lond. Elect. 8fc. Association, 8 Times Rep. 192 ; McMurray v. Caldwell, 6 lb. 76 ; and Picker v. Popham 8f Co., 63 L. T. 379 ; and Phillips v. Thomas, 62 lb. 793). Art. 38. — Public Convenience does not justify the continuance of a Tort. It is no ground for refusing an injunction that it will, if granted, do an injury to the public. Even where parliament has autho- ! rized a public body to carry out a public work, that does not authorize the body to carry it out in such manner or place as will cause a nuisance, if it can be carried out other- 126 TORTS IN GENERAL. | wise (see Truman v. Z. B. tV S. C. R. Co., 11 l App. Cas. 45). Thus, in the case of IIw- -Attorney- General y. Bir- mingham Corporation (4 Jf". $■ J. 528), where the defendants had poured their sewage into a river, and so rendered its water unfit for drinking and incapable of supporting fish, it was held that the legislature not having given them express powers to send their sewage into the river, their claim to do so, on the ground that the population of Birmingham would be injured if they were restrained from carrying on their operations, was untenable (see also Spokes v. The Banbury Board of Health, L. B., 1 Eq. 42 ; Goldsmid v. Tunbridge Wells Improvement Corns., sup. ; and Hill v. Met. Asylums Board, 6 App. Cas. 193). The same rule is observed in the United States ( Weir's Appeal, 74 Penn. St. Rep. 230, and Meigs v. Lester, 23 New Jersey Eq. 199). But where parliament has autho- rized works which cannot be carried out without the creation of a nuisance, the parliamentary authority is a good answer to an action (see Truman v. L. B. 8f S. C. B. Co., ubi sup.; and Harrison v. Southward, 8fc., Water Co., (1891) 2 Ch. 409). Art. 39. — Mandatory Injunctions. Where an injunction is asked, not merely prohibiting an act, but ordering some act to be done, it in general requires a stronger case to be made out than where a mere prohibi- ; INJUNCTIONS TO PREVENT CONTINUANCE OF TORTS. 127 tion is asked for (Deere v. Guest, 1 Mijl. £f C. 516; Durrell v. Pritchard, L. R., 1 Ch. 250; Clarke v. Clark, L. R., 1 Ch. 16). The court lias power to grant it on an interlocutory application, but will not do so unless the matter is very urgent (Bonner v. G. W. R. Co., 24 Ch. D. 10). (1) Tims, where a man has actually huilt a house which interferes with his neighbour's ancient lights, the court wil l not order him to take it clown, except - in cases in which extreme, or, at all events, very serious, damage would ensue if its interference were withheld. For, in such case, the injury to the defen- '< ■ dant by the removal of his building would generally be out of all comparison to the injury to the plaintiff, ' and that is a consideration which ought to have great weight (see Nat. Prov. Plate Glass Co. v. Prudential Ass. Co., 6 Ch. D. 761). (2) And so where an injunction was asked, order- ing the defendants to pull down some new buildings, on two grounds, namely, 1st, that a right of way was obstructed by the new buildings; and, 2ndly, that the new buildings obstructed the light and air ; it was held that no injunction ought to be granted, because, as was said by the Lord Justice Turner, " as to none of these grounds does it seem to me that there is any such extreme or serious damage as could justify the mandatory injunction which is asked. As to the first ground, the right of way is not wholly stopped. The question is one merely of 128 TORTS IN GENERAL. the comparative convenience of the right of way as it formerly existed, and as it now exists. As to the second ground, I think that the diminution of light and air to the plaintiff's houses is not such as would warrant us in granting the relief which is asked" (Durrell v. Pritchard, sup.). But where, in a light and air case, the defendant, after receiving notice of motion for an injunction, put on a number of men who worked night and day, and ran up his building to a height of nearly forty feet before he received notice that the injunction had been granted, it was held by the Court of Appeal that he ought to be ordered to restore the status quo ante by pulling down the building at once, without reference to the ques- tions to be decided at the trial (Daniel v. Ferguson 3 (1891) 2 Ch. 27 ; 39 W. R. 599 ; and see Lawrence v. Morton, 38 W. R. 555). Art. 40. — Delay in seeking Relief. A person who has not shown due diligence in applying to the court for relief, will, in general, be debarred from obtaining an in- terlocutory injunction ; but he will not be thereby debarred from obtaining an injunc- tion at the hearing of the cause, unless his delay Has been of such long duration as wholly to have deprived him of the right which he originally had (per Lord Langdale, in Gordon v. Cheltenham R. Co., 5 B. 233). ( 129 ) Chapter X. THE EFFECT OF THE DEATH OR BANK- RUPTCY OF EITHER PARTY. ^ 7 v*yu Art. 41. — Death generally destroys the Right of Action. (1) As a general rule, the right to sue, and the liability to be sued, for torts, ceases with the life of either party. (2) This rule does not apply where the tort consists of : — (a) The appropriation by the defendant of I property, or the proceeds or value of [ ' property, belonging to the plaintiff {Phillips v. Homfray, 24 Cli. D. 439); or"~ (b) An injury to real or personal property I committed hy_tke_deceased w ithin six ( calendar months of his death (3 & 4 Will."47c742, s. 2 ; see Kirk v. Todd, '7 ' 21 Ch. D. 484)0); or (a) Must be brought -within six months of constitution of a personal representative. U. K 4c {■ 130 TOUTS IN GENERAL. ( c) An in j ury to real property of jhe decea sed* committed within six calendar months of his death (Ib.)(b)\ or (d) An injury to goods and chattels (in- cluding choses in action) of the deceased (4 Edw. 3, c. 7; 25 Edw. 3, c. 5); or (e) An injury causing the death of the deceased, if he or she leaves a wife, husband, parent, or child (9 & 10 Vict. c. 93, s. 1) (c). (1) The rule is usually expressed in the form of a Latin maxim, " actio personalis moritur cum persona." Thus, if one 'is assaulted or libelled, or assaults or libels another, and dies ; in the one case the assaulter or libeller is acquitted, and in the other the assaulted or libelled party is left without any remedy, however severely he may have been injured. (2) The case of HatchanH. Mege (18 Q. B. D. 771) is an excellent example ot the rule under considera- tion. There it was held that a claim for falsely and maliciously publishing a statement, calculated to injure the plaintiff's right of property in a trade .mark, was put an end to by the death of the plaintiff after the commencement of the action only so far as (b) Must be brought within twelve months of death. (c) As to this Act, commonly called Lord Campbell's Act, vide infra, under the Chapter on Negligence. Strictly, such actions are not survivals of a cause of action belonging to the deceased, but are remedies for a statutory tort of a very special nature. EFFECT OF DEATH, ETC. OF EITHER PARTY. 131 it was a claim for libel; but so far as the alleged tort •was in the nature of slander of title, the action survived, and could be continued by his personal representative, who would be entitled to recover on proof of special damage (and see also Daly v. Dublin, Sfc. By. Co., 30 L. Ii. Ir. 514). It may be observed that, under paragraph (b), where an action is actually pending if the defendant dies pendente lite, the action dies with him, unless the tort was committed within the s ix m onths immediately preceding his death {Kirk v. Todd, ubi supra). Art. 42. — Effect of Bankruptcy . (1) The right of action belonging to one who becomes bankrupt, is not affecte d, by his bankruptcy, unless it causes actual loss to his estate, in which case the right passes to his trustee (see Wright v. Fairfield, 2 B. Sf Ad. 727 ; Beckham v. Drake, 2 H. L. C. 579; Brctver v. Dew, 11 31. 6f W. 625; Hodgson v. Sidney, L. R., 1 Ex. 313 ; Ex parte Vine, 8 Ch. D. 364). (2) A right of action for tort against one who becomes bankrupt, is not destroyed by the bankruptcy, nor can the plaintiff prove in the bankruptcy for compensation (46 & 47 Vict. c. 52, s. 30, sub-s. 2, and s. 37; k2 132 TORTS IN GENERAL. Watson y. Holliday, 20 Ch. D. 780 ; 52 L. J., Ch. 543 ; fix parte Stone, 37 W. R. 767). (1) Thus a bankrupt may, even during the con- tinuance of the bankruptcy, sue another for libel or assault, or for seduction {Beckham v. Drake, supra) ; and may, it is conceived, keep any damages which he may recover for his own use and benefit {Ex parte \ Vine, supra). (2) And so where the tort, although one in respect of property, does not cause any actual damage to it, but merely interferes with the plaintiff's abstract right, the right of action remains in him and does not pass to the trustee {Brewer v. Bete, supra). (3) But where a tort in respect of property causes actual damage, so as to inflict loss on the bankrupt's creditors, the right of action passes to the trustee, and the bankrupt loses the right of suing for the abstract tort to his right {Brewer v. Bew, supra ; and Hodgson v. Sidney, supra), unless there were two distinct causes of action {Bb.). PART II. RULES RELATING TO PARTICULAR TORTS. ( 135 ) Chapter I. TORTS FOUNDED ON MALICE {a). Sect. I. — Of Libel and Slander. Art. 43. — Definitions of Libel and Slander. (1) Libel is a false, defamatory and mali- cious writing, picture, or the like, tending to injure the reputation of another. (2) Slander is a false, defamatory and malicious v erbal statem ent tending to injure the reputation of another. (3) A libel is of itself an infringement of a right, and no actual damage need be proved in order to sustain an action. Slan- der, on the other hand, is not of itself an infringement of a right, unless damage en- sues, either actually or presumptively. V Analysis of libel and slander. — It will be perceived that in order to found an action, whether for libel or slander, four distinct factors must be present. (a) Malice is the conscious violation of law to the prejudice of another. 136 PARTICULAR TORTS. (1) The imputation conveyed by the writing, picture or words must be false, for truth (b) is a good defence to an action, or, in technical language, is a justifica- tion (Watfrin v. Hall, L. R., 3 Q. B. 400 ; Gourley v. Plimsoll, L. P., 8 C. P. 362 ; Leyman v. Latimer, 3 Ex. D. 352). (2) The imputation must be de- famatory. (3) The imputation must have been published. (4) The imputation must have been either expressly or implied/// malicious. And in the case oF slander, but not of libel, a fifth factor must exist, viz., actual damage must be proved, unless it can be implied from the nature of the defamatory words. In the succeeding articles, ques- tions which occur as to the nature of defamatory imputations, publication, and malice, and, in the case of slander, the nature of the resulting damage, will be more fully elucidated. It suffices, at this point, to say that if any one of the first four factors above enumerated in case of libel, or of the whole five in case of slander, is absent, no tort has been com- mitted. As to injunctions to restrain libels, the reader is referred to p. 122, supra, and to the case of Monson v. Tussaad, decided by the Court of Appeal at the end of January, 1894, which will be reported in (1894) 1 Q. B. (b) It must be observed, however, that if truth be pleaded, I ' it must be strictly proved ; for general evidence of reputation, showing that the plaintiff was credited by the public with misconduct such as that charged in the libel, is of no avail (see Wood v. Lord Durham, 21 Q. B. I). 501 ; 57 L. J., Q. B. 547 ; 59 L. T. 142). OF LIBEL AND SLANDER. 137 Art. 44. — What is defamatory. (1) Defamatory words or pictures or effi- gies are such as impute conduct or qualities tending to disparage or degrade the plaintiff {Digby v. Thompson, 4 B. Sr Ad. 821); or to expose him to contempt, ridicule, or public hatred, or to prejudice his private character or credit (Fray v. Fray, 34 L. J., C. P. 45) ; or to cause him to be feared or avoided (P Anson v. Stuart, 1 T. R. 748 ; Walker v. Broyden, 19 C. B., JY. S. 65). (2) A statement disparaging in intention, and so understood by the person to whom it was published, is none the less actionable because, if taken literally, it would not be defamatory. (1) Illustrations of directly defamatory words. — Thus, describing another as an infernal villain is a disparaging statement sufficient to sustain an action (Bell v. Stone, 1 B. 8f P. 331) ; and so is an imputation of insanity (Morgan v. Lingen, 8 L. T., N. S. 800) ; or insolvency, or impecuniousness (Met. Saloon Omnibus Co. v. Haickins, 28 L. J., Ex. 201 ; Eaton v. Johns, 1 Bowl., N. S. 602) ; or even of past impecuniousness (Cox v. Lee, L. R., 4 Ex. 284) ; or of gross misconduct (Clement v. Chivis, 9 B. 8f C. 172); or of cheating at dice (Greville v. Chapman, 5 Q. B. 744) ; or of ingratitude (Cox v. Lee, sup.). •e » * i /*. .'< ; n * ' h ft ' sc5-^ /t r , 138 PARTICULAR TORTS. (2) So, reflections on the professional and com- mercial conduct of another are defamatory ; as, for instance, to say of a physician that he is a quack ; and even to advertise pills as prepared by him (con- trary to the fact) would probably be a libel ( Clark v. Freeman, 11 Bear. 117). So, also, calling a news- paper proprietor "a libellous journalist" is defama- tory {Wakley v. Cooke, 4 Ex. 518). (3) So, again, it is libellous to call even an ex- convict a felon, as one who has endured the punish- ment for felony is, by 9 Geo. 4, c. 32, s. 3, no longer a felon in point of law (Let/man v. Latimer, 3 Ex. D. 352). (4) Illustrations of indirectly defamatory words. — A statement may be none the less defamatory because it is in the form of an ironical compliment. Thus, if one said of another that he was so valuable a citizen that the government had sent him to Australia for a considerable period, at the public expense, meaning thereby, and beiDg understood to mean, that he had been transported, that would clearly be defamatory. (5) So, inserting the plaintiffs names under the head of " first meetings under the Bankruptcy Act " is libellous, the innuendo being that the plaintiffs had become bankrupt, or taken proceedings in liqui- dation (Shepheardv. Whitaker, L. JR., 10 C. P. 502). (6) So, again, there may be facts known to the person publishing the libel or slander, and the person to whom it is published, which make an apparently innocent statement bear a secondary, and decidedly defamatory, construction. For instance, a statement that the speaker saw the plaintiff at Portland some OF LIBEL AND SLANDER. 139 years since, is primarily innocent enough ; but if the surrounding circumstances were such as to convey to the person to whom the words were addressed the insinuation that the speaker had seen the plaintiff working at Portland as a convict, the mere absence of a direct statement to that effect would not be sufficient to excuse the speaker. It must, however,; be borne in mind that where a secondary meaning is to be imputed, it is necessary that the facts should be known both to the person who makes the state^ ment and to the persons to whom it is published ; because, if facts are known to the latter from which they might reasonably suppose that the document is defamatory, but those facts are not known to the person who wrote it, if he were held liable he would be made liable for doing that which he could have no reason to suppose would injure anybody, the language used being such as in its ordinary sense would not be defamatory of anybody. Again, if there are facts known to the person who makes the statement, which, if known to the persons to whom it is made, might reasonably lead them to suppose that it was used in an ironical sense, yet, if those facts are not known to the persons to whom it is made, that which is stated, although stated inadver- C^L tently or maliciously, could produce no effect upon r their minds. Though the act might be negligent or wrongful on the part of the person making the state- ment, the person who received it would have no reasonable ground for understanding it in any evil sense [Capital § Countifx Bank v. Haiti/, 5 C. P. D. 515). *^** (7) So, where a trade journal published a list 140 PARTICULAR TORTS. headed " County Court Judgments," in which appeared a judgment against the plaintiff, which had, in point of fact, been discharged, although it remained on the county court register, it was held that, although it was true that there was such a judgment, yet there was evidence from which the jury might infer an innuendo that it remained un- discharged, and that consequently the plaintiff was a person in bad credit ( Williams v. Smith, 22 Q. B. D. 134.) If, however, the trade journal had ap- pended a note, that its readers were not to assume that the judgments in the list remained unsatisfied, the decision would have been the other way (Searles v. Scarlett, (1892) 2 Q. B. 56). (8) The exhibition of the waxen effigy of a person who has been tried for a murder and acquitted, in company with the effigies of notorious criminals, may be defamatory ; the innuendo being that, although not found guilty, he was a criminal himself. (See judgment of Court of Appeal in Monson v. Tussaud, decided on 29th January, 1894, not yet reported, but probably will be in (1894) 1 Q. B.) Art. 45. — Publication. The making known, knowingly or negli- gently, of a libel or slander to any person other than the object of it y . is publication in its legal sense. (1) " Though, in common parlance, that word [publication] may be confined to making the contents known to the public, yet its meaning is not so limited in law. The making of it known to an individual OF LIREL AND SLANDER. 141 is indisputably, in law, a publishing" (Rex y.Burdett, 4 B. 8f Aid. 143). Publication, therefore, being a question of law, it is for the jury to find whether the facts by which it is endeavoured to prove publication are true ; but for the court to decide whether those facts constitute a publication in point of law (Street v. Licensed Victuallers' Society, 22 W. R. 553 ; Heart v. Wall, 2 C. P. D. 146). (2) Telegrams and post cards. — If the libel be con- tained in a telegram, or be written on a post card, that is publication, even though they be addressed to the party libelled ; because the telegram must be read by the transmitting and receiving officials, and the post card will in all probability be read by some person in the course of transmission (Robinson v. Jones, 4 L. R. Jr. 391; Williamson v. Freer, L. R.,9 C. P. 393). (3) Dictating libel. — So, dictating a libellous letter to a typewriter, and giving it to an office boy to make a press copy, is publication. (Pullman v. Hill 8f Co., (1891) 1 Q. B. 524). (4) Newsvendors. — But the vendor of a newspaper in the ordinary course, though he is prima facie liable for a libel contained in it, isjsscused if he can prove that he did not know that it contained a libel ; that his ignorance was not due to any negligence on his / own part ; and that he did not know, and had no ground for supposing, that the newspaper was likely to contain libellous matter (Emmens v. Pottle, 16 Q. B. JD. 354). If he proves these facts, he will not be deemed to have published it. (5) Husband and Wife. — There is, also, an excep- tion to the rule, in the case of a husband communi- 142 PARTICULAR TORTS. eating a libel or slander to his wife. Such a commu- nication is not a " publication " of the defamatory statement, because, in the eye of the law, husband and wife are one person (Wennhak v. Morgan, 20 Q. B. D. 635). The converse does not, however, hold good, and if a defamatory statement be made to the wife_of the plaintiff, that is a sufficient publication to sustain an action (Wenman v. As// } 13 C. B. 836). Art. 46. — Malice and Privileged Communications. (1) Where the words or picture are defama- tory, malice is generally implied; and the existence of express malice, that is to say, a conscious violation of the law to the prejudice of another (per Campbell, C. J., Ferguson v. Earl of Kinnoull, 9 CI. Sf F. 321), is only a matter for inquiry, when the words com- plained of were spoken on a justifiable occa- sion (WatJcin v. Hall, L. B., 3 Q. B. 396; Spill v. Ifaule, L. B., 4 Ex. 232), or where the defamation consisted in falsely impeach- ing- a man's right to property, — a form of defamation commonly known as " slander of title" (Wren v. Weild, L. B., 4 Q. #. 730). "(2) Where a communication is made upon any subject-matter in which the party com- municating has an interest, or in reference to which he has a duty, either public or private, legal, moral, or social, such com- <1 OF LIBEL AND SLANDER. 143 munication, if made to a person having a ! corresponding interest or duty, rebuts the inference of malice (in some cases absolutely, ^ and in others only prima facie) , and is privi- leged (Laughton v. Bishop of Sodor and Alan, L. E., 4 P. 0. 495 ; Datvkins v. Lord Paulet, L. E., 5 Q. B. 94 ; limit v. G. N. Bail Co., (1891)2 Q. B. 189). (3) Where the occasion is only prima facie, and not absolutely, privileged, the plain tiff may rebut the inference of privilege by proving a malicious motive, such as anger or indifference~"fb the truth, but the onus of proof lies on the plaintiff (Jenoure v. Delmege, (1891) App. Ca. 73). But if the defendant made the statements believing them to be true, he will not lose the protection arising from the privileged occasion, although he had no reasonable ground for his belief \ (Clark v. Molyneux, 3 Q. B. D. 237). (4) The question whether a communication / / is privileged is for the judge, and that of/ \ express malice for the jury (Cook y. Wildes J I 1 5 K6f B. 328). (1) Parliamentary proceedings. — Speeches in Par- , liament are absolutely and irrebuttably privileged ! (Stoclcdcrfe v. Hansard, 9 A. 8f E. 1 ; Dillon v. Balfour, 20 L. R. Ir. 601) ; and a faithful report in a public r 144 PARTICULAR TORTS. newspaper, of a debate of either House of Parliament, containing matter disparaging to the character of an individual which had been spoken in the course of the debate, is not actionable at the suit of the person whose character has been called in question ( Wason v. Walter, L. R., 4 Q. B. 73. See also 51 & 52 Vict. c. 64, s. 4). Statements of witnesses before Parlia- mentary Committees are also privileged {Go fen v. Donnelly, 6 Q. B. D. 307). (2) Judicial proceedings. — Statements of a judge I acting judicially, whether relevant or not, are abso- lutely privileged {Scott v. Stansfeld, L. R., 3 Ex. 220) ; and so are those of counsel, however irrelevant and however malicious {Munster v. Lamb, 11 Q. B. I). \ 588). Solicitors acting as advocates have a like privilege {Jb., and Maehay v. Ford, 29 L. J., Ex. 404). Statements of witnesses can never be the subject of > an action {penman v. Netherclift, 2 C. P. I). 53 ; and Lilley v. Eoney, 01 L. J., Q. B. 727) ; and a military man giving evidence before a military court of in- quiry which has not power to administer an oath, is entitled to the same protection as that enjoyed by a witness under examination in a court of justice {Da ivkins v. R okeby, L. R., 7 II. L. 744 ; 23 W. R. 931). If the evidence is false, the remedy is by \ indictment {Henderson v. Broom head, 28 L. J., Ex. 360). I (3) Speeches at County Councils, &c. — In speeches before local boards; County Councils, and the like, although the occasion is privileged, the privilege is not (as in the case of Parliament) absolute, and the speaker is only protected in the absence of express OF LIBEL AND SLANDER. 145 malice. The privilege may be rebutted by showing that from some indirect motive, such as anger, or gross and unreasoning prejudice with regard to a particular subject-matter, the defendant stated what he did not know to be true, reckless whether it was true or false {Royal Aquarium Co. v. Parkinson, (1892) 1 Q. B. 431 ; and Pittard v. Oliver, (1891) 1 Q. B. 474). (4) Newspaper reports of legal proceedings. — Fair and accurate reports of trials (unless obscene or de- moralizing) published in a newspaper contemporane- ously with the proceedings are privileged (51 & 52 Yict. c. 64, s. 3) ; and the same rule applies to a report of an ex parte application for a summons, made to a magistrate in open court (lumber v. Press Association, (1893) 1 Q. B. 65). And a report of a trial published by a private person is probably prima, facie privileged in the absence of express malice. But, on the other hand, dicta of Lord Halsbury and Lord Bramwell in the recent case of Macdougall v. Knight (14 App. Cas. 194), lay it down that a report of the judge's summing up, or judgment only, is not a fair report of a trial, and is only privileged if, in point of fact, the summing up or judgment gave reasonable opportunity to the reader to form a correct conclusion. It has also been held, that a true report of proceedings in a court of justice, sent to a news- " paper by a person who was not a reporter on the staff, was not absolutely privileged, and that if it ^ ^^., was sent for a malicious motive an action would lie (Stevens v. Samj)son, 5 Ex. D. 53). — v 146 PARTICULAR TORTS. 1(5) Reports of quasi judicial proceedings. — Reports of their proceedings published by quasi judicial bodies, bond fide and without any sinister motive, are privi- '. leged. For instance, where the General Council of \ Medical Education and Registration (who are em- powered by statute to strike the names of persons off the register of qualified medical practitioners) struck off the plaintiff's name, and, in their annual published report, stated the circumstances which induced them to do so, it was held that in the absence of express malice the publication was privileged [Allbut v. General Council, fyc., 37 W. R. 771). The Court of Appeal intimated that the same principle would apply to reports of the proceedings of all bodies entrusted by Parliament with duties in which the public are interested, e. g., county councils and the like. If, however, the statement is published maliciously, the privilege is gone, as there is no absolute privilege in such cases [Royal Aquarium Co. v. Parkinson, (1892) 1 Q. B. 431). (6) Newspaper reports of meetings, and publication of public notices, &c. — By section 4 of " The Law of Libel Amendment Act, 1888," it was enacted that a fair and accurate report published in any newspaper of the proceedings of a public meeting, or (except ;where neither the public nor any newspaper reporter is admitted) of any meeting of a vestry, town council, school board, board of guardians, board or local authority, or any committee appointed by any of the above-mentioned bodies, or of any meeting of any commissioners, select committees of either House of Parliament, justices of the peace in quarter sessions OF LIBEL AND SLANDER. 147 assembled for administrative or deliberative purposes, and the publication at the request of any government office or department, officer of state, commissioner of police or chief constable, of any notice or report issued by them for the information of the public, [ shall be privileged, unless it shall be proved that such report or publication was published or made maliciously. But the protection intended to be afforded by that section is not available if the defen- ■ dant has refused to insert in the newspaper in which the matter complained of appeared, a reasonable explanation or contradiction by, or on behalf of, the plaintiff. Nor is it available to protect fair and accurate reports of statements made to the editors of newspapers by priva te pers ons as to the conduct of a I public officer [Davis v. Shepstone, 11 App. Cas. 187). / (7) Bona fide complaints. — A complaint addressed to an authority having power to dismiss the party complained of, is prima facie privileged (/. e., the * occasion is privileged). But if the complaint is 1 made maliciously the privilege is taken away 1 (Procter v. Webster, 16 Q. B. D. 112 ; Stuart v. Bell, (1891) 2 Q. B. 341). / (8) Confidential advice. — So advice given, in confi- | dence, at the request of another, and for his protec- I tion, is privileged ; and it seems that the presence of k a third party makes no_difference (Taylor v. Hawkins, 16 Q. B. 308 ; Clark v. Molyneux, sup. ; Manly v. Witt, 25 L. J., C. P. 294 ; 18 C. B. 544 ; Lawless v. Anglo-Egyptian Co., L. R., 4 Q. B. 262 ; Jones v. Thomas, 34 W. R. 104). But it seems doubtful Vhether a voluntary statement is equally privileged l2 148 PARTICULAR TORTS. (see Coxhead v. Richards, 15 L. J., C. P. 278 ; and Fryer v. Kinnersley, 33 L. J., C. P. 96 ; but see Dam v. Sncad, L. P., 5 Q. P. 608). Thus the character of a servant given to a person requesting it, is privileged (Gardener v. Slade, 18 L. J., Q. P. 334) ; and so, also, is the character of a person who states that she is a fit recipient of charity, given to, and at the request of a person willing to bestow such charity, by the secretary of the Charity Organization Society (Waller v. Loch, 7 Q. P. D. 619). The character of a candidate for an office, given to one of his canvassers, was held to be privileged (Cowles v. Potts, 34 L. J., Q. P. 247). And it has been held by the Supreme Court of New Zealand that defamatory words bona fide spoken of a mayor at a towns meeting convened for the purpose of con- sidering municipal business, but at which there were other persons present besides ratepayers, were privi- leged (Uodges v. Glass, 1 Ollivier Pell 8f Fitzgeralds* (New Zealand) 8. C. Peps. 66.) (9) Statements made by one having an interest to one having a corresponding interest. — A privileged occasion arises, if the communication is of such a nature that it can be fairly said that he who makes it has an interest in making it, and that those to whom ir~ia maile have a corresponding interest in having the communication^nade to them. Thus, where the defendants (a railway company) dismissed the plaintiff (one of their guards), on the ground that he had been guilty of gross neglect of duty, and published his name in a monthly circular addressed OF LIBEL AND SLANDER. 149 to their servants, stating the fact of, and the reason for, his dismissal, it was held that the statement was made on a privileged occasion, and that the defen- dants were not liable. For, as Lord Esher, M. R., said, " Can any one doubt that a railway company, if they are of opinion that some of their servants have been doing things which, if they were done by their other servants, would seriously damage their business, have an interest in stating this to their servants? And how can it be said that the servants to whom that statement is made have no interest in hearing that certain things are being treated by the company as misconduct, and that if any of them should be guilty of such misconduct, the consequence would be dismissal from the company's service " {Hunt v. G. N. R. Co., (1891) 2 Q. B. 189 ; and see Hamon v. Falle, 4 App. Cas. 247). (10) Imputations made to persons not having a corre- sponding interest. — However, imputations, which, if made to persons having a corresponding interest, would be privileged in the absence of express malice, cease to be so if spread broadcast. Thus, imputations circulated freely against another in order to injure him in his calling, however bond fide made, are not | privileged. For instance, a clergyman is not privi- / leged in slandering a schoolmaster about to start a I school in his parish {Gilpin v. Fowler, 9 Ex. 615). So, the unnecessary transmission by a post office telegram of libellous matter, which would have been privileged if sent by letter, avoids the privilege (Williamson v. Freer, L. B., 9 C. P. 393). But, on the other hand, it has been held that where by the 150 PARTICULAR TORTS. defendant's negligence a privileged communication, intended to be made to A., was in fact placed in an envelope directed to B., whereby the defamatory- matter was published to B., yet the defendant was not liable, there being no malice (Tompson v. Dash- wood, 11 Q. B. D. 43). (11) Criticism. — It was at one time considered, that criticisms on matters of public interest, such as books, works of art, plays, the acts of public men, and the like, were privileged communications, and that proof of actual malice was necessary in order to give rise to an action by the person criticised. This is, however, no longer the law. The true rule, as laid down by the Court of Appeal in Merival^jr^^arson (20 Q. B. D. 275), is, that where an action of libel is brought in respect of a comment on a matter of public interest, the case is not one of privilege pro- ' perly so called, and it is not necessary in order to I give a cause of action, that actual malice should be proved. The question is one for the jury, whether the disparaging statements go beyond the limits of fair criticism. In other words, " is the article, in the opinion of the jury, beyond that which any fair man, however prejudiced or however strong his opinion may be, would say of the work in question. Every latitude must be given to opinion and to prejudice, and then an ordinary set of men, with ordinary judg- ment, must say whether any fair man would have made such a comment on the work. It is very easy to say what would be clearly beyond that limit ; if, for instance, the writer attacked the private character of the author. But it is much more difficult to say v: OF LIBEL AND SLANDER. 151 what is within the limit. That must depend upon the circumstances of the particular case. . . . Mere exaggeration, or even gross exaggeration, would not make the comment unfair. However wrong the opinion expressed may be in point of truth, or how- ever prejudiced the writer, it may still be within the prescribed limit " (per Lord Esher, M. E., in MerU vale v. Carson, sup., overruling Henwoodv. Harrison, L. P.,7 C. P. 606, and following Campbell v. Spottis- woocle, 3B.$S. 769). Lord Tenterden, in a passage in his judgment in Maclcod v. Waldey (3 C. $ P. 313), quoted with approval by Lord Justice Bowen in the above case, said : " Whatever is fair, and can be reasonably said , of the works of authors or of themselves as connected ' with their works, is not actionable unless it appears that, under the pretext of criticising the works, the defendant takes an opportunity of attacking the character of the author." Under these principles, not only books and works of art, but even tradesmen's advertisements may be fairly criticised (Paris v. Levy, 30 L. J., C. P. 11). So, too, fair criticism is allowed upon the public life of public men, or men filling public offices ; such as the conduct of public worship by clergymen (Kelhy v. Tinting, L. P., 1 Q. B. 699) : provided such criticism does not touch upon their private lives (Gathercole v. Miall, 15 M. $ W. 319 ; Odgcr v. Mortimer, 28 L. T. 472) . And the same rule applies to fair criticism of the past exploits of one who is endeavouring to push a scheme of national import- ance (Henwood v. Harrison, L. P., 7 C. P. 606). 152 PARTICULAR TORTS. But although the acknowledged or proved public acts of public men may be lawfully criticised, that gives no right to publish false and defamatory state- ments offyct, unless, of course, they are published in the course of parliamentary or judicial proceedings {Davis v. Shepstone, 11 App. Cas. 187). And in the United States it has been laid down, that while a citizen has the right to criticise the official conduct of a public man with satire and ridicule, he cannot in such criticism attack his private character (Hamilton v. JEno, 10 iV. T. Weekly Dig. 403). So fair criticism is allowed on the conduct of persons at a public meeting (Davis v. Duncan, L. JR., 9 C. P. 396). \ Art. 47. — Actual Damage essential to Action for Slander. (1) Actual damage being essential to an action for oral defamation, it is generally necessary to prove it ; and in that case the I loss complained of must be such as mi^ht fairly and reasonably have been anticipated from the slander (Lunch v. Knight, 9 II. L. 0. 577). (2) But damage will be presumed where the slander imputes a criminal offence pun- ishable by imprisonment (Webb v. Beavan, OF LIBEL AND SLANDER. 153 11 Q. B. D. 609), unfitness for society; (Bloodworth v. Gray, 7 M. Sf G. 334), or misconduct in, or want of some necessary qualification for, the plaintiff's profession or trade or office of profit (Foidger v. Newcomb, L. B., 2 Ex. 327), or some conduct which might cause him to be deprived of an office iof honour [Alexander v. Jenkins, (1892) 1 Q. B m 797). (1) Damage must be natural, but not necessarily legal, consequence of slander. — It was at one time considered that the special damage must be the legal and natural consequence of the words spoken, and consequently, that it was not sufficient to sustain an action of slander to prove a mere wrongful act of a third party induced by the slander, such as that he had dismissed the plaintiff from his employment, before the end of the term for which they had con- tracted ( Vicars v. Wilcocks, 2 Sm. L. C. 534). How- ever, that view of the law can no longer be considered Lccurate, having been dissented from in several cases, •articularly in Lumley v. Gye (2 E. 8f B. 216), and \y ncJi v. K night (sup.). In the latter case Lord "Wensleydale said : — " To make the words actionable by reason of special damage, the consequence must be such as, taking human nature as it is, with its infirmities, and having regard to the relationship of the parties concerned, might fairly and reasonably have been anticipated and feared would follow from the speaking of the words, not what would reason- 154 PARTICULAR TORTS. ably follow, as we might think ought to follow. . . . In the case of Vicars v. Wilcocks, I must say that the rules laid down by Lord Ellenborough are too restrictive. I cannot agree that the special damage must be the natural and legal consequence of the words, if true. Lord Ellenborough puts an absurd case, that a plaintiff could recover damages for being thrown into a horse-pond as a consequence of words spoken ; but, I own, I can conceive that, when the public mind was greatly excited on the subject of some base and disgraceful crime, an accusation of it to an assembled mob might, under particular circum- stances, very naturally produce that result, and com- pensation might be given for an act occurring as a consequence of an accusation of that crime." (2) Damage caused by plaintiff himself. — If the damage be immediately caused by the plaintiff him- self, he cannot sue. For instance, where the plaintiff (a young woman) told the slander to her betrothed, who consequently refused to marry her, it was held that no action would lie against the slanderer {Speight v. Gosnay, 60 L. J., Q. B. 231). (3) Imputation of unchastity. — Formerly, words imputing unchastity to a woman were not actionable without proof of special damage. And it was even held that where, by reason thereof, she was excluded from a private society and congregation of a sect of Protestant Dissenters, of which she had been a member, and was prevented from obtaining a certifi- cate, without which she could not become a member of any other society of the same nature, such a result was not such special damage as would render the OF LIBEL AND SLANDER. 155 words actionable (R oberts ^ R oberts. 33 L. J., Q. B. 249 ; and see Chamberlain v. Boyd, 11 Q. B. D. 407; and Alhopp v. Allsopp, 5 II. ty iV. 534). However, --*y the Slander oi Women Act, 1891 (54 & 55 Vict. c. 51), this scandalous state of the law has been altered, and it is enacted that words spoken and published after the passing of that Act which impute unchastity or adultery to any woman or girl, shall not require special damage to render them action- able : provided that the plaintiff shall not recover (more costs than damages, unless the judge certifies that there was reasonable cause for bringing the action. (4) But, on the other hand, an action brought by a trader, alleging that defendant falsely and mali- ciously spoke and published of his wife, who assisted him in his business, certain words accusing her of having committed adultery upon the premises where he resided and carried on his business, whereby he was injured in his business, and certain specified and other persons who had previously dealt with him, ceased to do so, was maintainable on the ground that the injury to his business w r as special damage, the natural consequence of the words. Held, also, that the special damage might be proved by general evidence of the falling off of his business, without showing who the persons were who had ceased to deal with him, or that they were the persons to whom the statements were made (Riding v. Smith, 1 Ex. Die. 91 ; 24 W. R. 487). ' There has always been a custom in the City of London Courts enabling a woman whose chastity had 156 PARTICULAR TORTS. been slandered, to maintain an action, though she could prove no special damage. (5) Examples of damage implied from imputation of crime. — The words, " You are a rogue, and I will prove you a rogue, for you forged my name," are actionable per se [Jones v. Heme, 2 Wils. 89). And it is immaterial that the charge was made at a time when it could not cause any criminal proceedings to be instituted. Thus the words " You are guilty " [innuendo of the murder of D.] are, after the verdict of not guilty, a sufficient charge of murder to support an action (Peake v. Oldham, W. Bl 960). But if words charging a crime are accompanied by an express allusion to a transaction which merely amounts to a civil injury, as breach of trust or con- tract, they are not actionable {per Ellenborough in Thompson v. Barnard, 1 Camp. 48 ; and per Kenyon, Christie v. Cornell, Peake, 4) . Nor are words imputing an impossible crime, as " Thou hast killed my wife," who, to the knowledge of all parties, was alive at the time (Snag v. Gee, 4 Pep. 16 ; Heming v. Power, 10 M. $ W. 569). (6) The allegation, too, must be a direct charge of punishable crime (Lemon v. Simmons, 57 L. J. , Q. B. 260). Thus, saying of another that he had forsworn himself is not actionable per se, without showing that the words had reference to some judicial inquiry (Holt v. Schole field, 6 T P. 691). So where a declaration alleged that the defendant called the plaintiff a " welcher (meaning a person who dishonestly appro- priates and embezzles money deposited with him) " ; and the evidence showed that a " welcher " is a per- OF LIBEL AND SLANDER. 157 son who receives money which has been deposited to abide the event of a race, and who has a pre- determined intention to keep the money for himself, it was held that, as the word did not necessarily impute the offence of embezzlement, it did not imply a criminal offence, and so was not action- able without special damage (Blackman v. Bryant, 27 L. T. 491, Ex.). (7) So words merely imputing suspicion of a crime are not actionable without proof of special damage (Simmons v. Mitchell, 6 App. Cas. 156). (8) Examples of damage implied from imputation of / unfitness for society. — Again, to allege the present pos- \ session of an infectious, or even a venereal, disease is actionable, but a charge of past infection is not ; for it shows no present unfitness for society (see Carsldke v. Mappledoram, 2 T. R. 473 ; Bloodworth v. Gray, 7 M.tyG.Zte). (9) Examples of damage implied from imputation of unfitness for business. — It is quite clear that, as regards a man's business, or profession, or office, I if it be an office of profit, the mere imputation of want of ability to discharge the duties of that office, is sufficient to support an action. It is not necessary that there should be imputation of immoral or dis- graceful conduct, the reason being that, in all those cases, the law presumes such a probability of pecu- niary loss from such imputation, in that office, or employment, or profession, that it will not require special damage to be shown. But, with regard to offices that are not offices of profit, the loss of 158 PARTICULAR TORTS. which would therefore not involve necessarily a pecuniary loss, the law is different, and the mere imputation of want of ability or capacity, is not actionable ; and the imputation to be actionable must /be one which, if true, would show that the plaintiff ought to be, and could be, deprived of his office by reason of the misconduct charged against him. The implied damage, in fact, is the risk of deprivation of the office of honour or credit which he holds (see per Lord Herschell, L. C, in Alexander v. Jenkins, (1892) I Q. B. 797). Thus, words imputing drunkenness to a master mariner whilst in command of a ship at sea are actionable per se (Irwin v. Brandwood, 2 H. 8f C. 960 ; 33 L. J., Ex. 257). And similarly where a clergyman is beneficed or holds some ecclesiastical office, a charge of incontinence is actionable ; but it is not so if he holds no ecclesiastical office (Gallway v. Marshall, 23 L. J., Ex. 78). (10) So to say of a surgeon " he is a bad character ; none of the men here will meet him," is actionable (Southee v. Benny, 17 L. J., Ex. 151 ; 1 Ex. 196.) ' Or of an attorney that " he deserves to be struck off I the roll" (Phillips v. Jansen, 2 Esp. 624). But it is not ground for an action to say " he has defrauded his creditors, and been horsewhipped off the course at Doncaster," because this has no reference to his profession (see also Jenner v. A' Beckett, L. R., 7 Q. B. II ; 41L.J.,Q.B.U; and Miller v. David, L. R., 9 C. P. 118). But this seems a curious refinement. A similarly absurd distinction has been taken between saying of a barrister " He hath as much law as a OF LIBEL AND SLANDER. 159 jackanapes " (which is actionable per se) and " He hath no more wit than a jackanapes " (which is not actionable). The point being that law is, but wit is not, essential in the profession of a counsellor (see per Pollock arguendo, 2 Ad. 8f Ell. 4). (11) With regard to slander upon persons holding mere offices of honour, it has been held that an imputation of drunkenness against a town councillor is not actionable without proof of special damage. For such conduct, however objectionable, is not such as would enable him to be removed from, or deprived of that office [Alexander v. Jenkins, sup.). On the other hand, the American Courts have held that to say of a magistrate (apparently an unpaid one), that " He is a damned fool of a justice," is actionable per se {Spiering v. Andrea, 30 Am. Laiu Rep. 744). Art. 48. — Repeating Libel or Slander. (1) Whenever an action will lie for slander or libel, it is of no consequence that the de- fendant was not the originator, but merely a repeater, or printer and publisher of it. (2) If the damage arise simply from the repetition, the originator will not be liable (Par Jcins v. Scott, 1 Hurl, fy Colt. 153; Watkin v. Hall, L. R., 3 Q. B. 396) ; except (a) where the originator has authorized the repetition 160 PARTICULAR TORTS. {Rendition v. Maltby, Car. Sf M. 402); or (b) where the words are spoken to a person who is under a moral obligation to com- municate them to a third person {Derry v. Handle?/, 16 L. T., N. S. 263). (1) In that case, Cockburn, C. J., observed, " Where an actual duty is cast upon the person to whom the slander is uttered to communicate what he has heard to some third person, as when a communication is made to a husband, such as, if true, would render the person the subject of it unfit to associate with his wife and daughters, the slanderer cannot excuse himself by saying, ' True, I told the husband, but I never intended that he should carry the matter to his wife.' In such case the communication is privileged, and an exception to the rule to which I have referred ; and the originator of the slander, and not the bearer of it, is responsible for the consequences." (2) But where A. slandered B. in C.'s hearing, and C, without authority, repeated the slander to D., per quod D. refused to trust B. : it was held that no action lay against A., the original utterer, as the damage was the result of C.'s unauthorized repetition and not of the original statement ( Ward v. Weeks, 4 Moo. 8fP. 808). (3) Printing slander. — So the printing and pub- lishing by a third party of oral slander (not per se actionable), renders the person who prints, or writes and publishes the slander, and all aiding or assisting him, liable to an action, although the originator, who OF LIBEL AND SLANDER. 161 merely spoke the slander, will not be liable (McGregor v. T/i unites, 3 B. 8f C. 35). (4) Upon this principle the publis her, as well as the author of a libel, is liable ; and the former cannot exonerate Tiiniself by naming the latter. For " of what use is it to send the name of the author with a libel that is to pass into a part of the country where he is entirely unknown ? The name of the author of a statement will not inform those who do not know his character whether he is a person entitled to credit for veracity or not " (per Best, J., Crcspigny v. Wellesley, 5 Bing. 403). Art. 49. — Libels by Newspaper Proprietors. (1) In an action for libel against the pro- prietor or editor of any newspaper or other periodical, the defendant, in addition to pleading the privileges conferred on news-v paper proprietors and editors by the 3rd and 4th sections of the Statute 51 6f 52 Vict, c. 64 (supra, pp. 145 and 146), may plead that Ithe libel was inserted without malice and without gross negligence ; and that at the earliest subsequent opportunity he inserted in such or some other publication a full apology ; or, if such publication was pub- lished at intervals exceeding a month, that M 162 PARTICULAR TORTS. . he offered to publish such apology in any paper the plaintiff might name. And upon filing such plea, the defendant may pay a sum into court by way of amends (6 £f 7 Vict. c. 96, s. 2). See Hawkesley v. Brad- shawe, 5 Q. B. D. 22. (2) In any such action as aforesaid, the defendant shall be at liberty to give in evi- dence in mitigation of damages, that the plaintiff has already recovered or brought actions for damages, or has received or agreed to receive compensation in respect of a libel or libels to the same purport or effect (44 $f 45 Vict. c. 60, s. 6)(«). I Art. 50. — Limitation of Actions for Defamation. An action for slander must be commenced within two years next after the cause of action arose, and an action for libel within six years. (a) The Act gives very exhaustive definitions of "News- , paper" and "Proprietor." As to the consolidation of several ! actions brought against different persons for the same libel, ' see 51 & 52 Vict. c. 64, s. 5. OF MALICIOUS PROSECUTION. 163 Section II. — Of Malicious Prosecution. Art. 51. — Definition. (1) Malicious prosecution consists of the malicious institution against another of un- s uccessfu l criminal, or bankruptcy, or liqui- dation proceedings, without reasonable or probable cause (set 1 Churchill v. diggers, 3 Ell. cV Bl. 937; Johnson v. Emerson, L. R., G Ex. 329; and Quartz Hill, Sfc. Co. v. Eyre, 11 Q. B. D. 674). (2) Malicious prosecution causing actual damage to the party prosecuted is a tort, for which he may maintain an action. It will he seen from the above article, that in order to sustain an action for malicious prosecution, five factors must co-exist, viz. : — (1) a prosecution of the plaintiff by the defendant ; (2) want of reason- able and probable cause for that prosecution ; (3) malice, express or implied ; (4) the determination of the prosecution in favour of the party prosecuted ; and (5) loss or damage caused to that party by the prosecution. If any one of these five factors are absent, no action will he. It is, therefore, desirable to examine each one of these elements in detail. /"A ** ■ fa* ! < ** f. rv /,/ I ! m2 164 PARTICULAR TORTS. Art. 52. — Prosecution by the Defendant. The prosecution must have been instituted by the defendant against the plaintiff, and !not merely by the authorities on facts fur- nished by the defendant. Thus, if a person bond fide lays before a magistrate a state of facts, without making a specific charge of crime, and the magistrate erroneously treats the matter as a felony, when it is in reality only a civil injury, and issues his warrant for the apprehension of the plaintiff, the defendant who has complained to the magistrate is not responsible for the mistake. For he has not instituted the prosecution, but the magistrate (Wj/afi v,-- White, 29 L. J., Ex. 193; Cooper v. Booth, 3 JEsp. 144). And the same rule applies where one lays an information before a jus- tice under the Criminal Law Amendment Act, 1885, s. 10 (Lea v. Cliarrington, 23 Q.B. D. 272; and Hope v. Erered, 17 ib. 338). Art. 53. — Want of Reasonable and Probable Cause. (1) The onus of proving the absence of reasonable and probable cause for the prose- cution rests on the plaintiff ( List er v. Pp. mi- man, L. R., 4 H. L. 521 ; Abrath v. JST. E. R. Co., 11 App. Cas. 247). OF MALICIOUS PROSECUTION. 165 find the fact s on which the question of reasonable and probable cause depends ; but the judge determines whether « those facts do constitute reasonable and prob- j able cause. (3) No definite rule can be laid down for the exercise of the judge's judgment (Lister v. Perry man, L. B., 4 II. L. 521); but the de- fendants will be deemed to have had reason- able and probable cause for a prosecution where (a) they took reasonable care to in- i form themselves of the true facts ; (b) they h onestl y, although erroneously, believed in their information ; and (c) thatjnf ormation, if true, would have afforded a prima facie case for the prosecution complained of (see Abrath v. N. E. R. Co., ubi sup.). (1) In the case of Lister v. Perry man {ubi sup.), Lord Chelmsford said : " There can be no doubt since the case of Panton v. Williams (2 Q. B. 169), in which the question was solemnly decided in the Exchequer Chamber, that what is reasonable and probable cause in an action for malicious prosecution, or for false imprisonment, is to be determined by the judge. In what other sense it is properly called a question of law, I am at a loss to understand. No definite rule can be laid down for the exercise of the judge's judgment. Each case must depend on its own circumstances, and the result is a conclusion 166 PARTICULAR TORTS. / drawn by each judge for himself, whether the facts found by the jury, in his opinion, constitute a defence ^ to the action. The verdict in cases of this descrip- /tion, therefore, is only nominally the verdict of a jury." (2) In Broad v. Ham (5 Bing. N. C. 725), Tindal, , C. J., said : "There must be a reasonable cause, such I as would operate on the mind of a discreet man ; 1 there must be also a probable cause, such as would operate on the mind of a reasonable man ; at all ' events, such as would operate on the mind of the party making the charge, otherwise there is no prob- able cause for him." . (3) A man who makes a criminal charge against another, cannot absolve himself from considering whether the charge is reasonable and probable, by delegating that question to an agent, even although that agent be presumably more capable of judging. I Thus, the opinion of counsel as to the propriety of instituting a prosecution, will not excuse the defen- dant if the charge was in fact unreasonable and improbable. For as Heath, J., said in Hewlett v. Crucliley (5 Taunt. 283), "it would be a most per- nicious practice if we were to introduce the principle that a man, by obtaining the opinion of counsel, by applying to a weak man or an ignorant man, might shelter his malice in bringing an unfounded prose- cution." (4) With regard to the amount of care which a prosecutor is bound to exercise before instituting a prosecution, it would seem that although he must not act upon mere tittle tattle or rumour, or even OF MALICIOUS PROSECUTION. 167 upon what one man has told his immediate informant, without himself interviewing the first-mentioned man, yet where his immediate informant is himself cog- nizant of other facts, which, if true, strongly confirm the hearsay evidence, that will be sufficient to justify the prosecutor in acting, without first going to the source of the hearsay (Lister v. Perry man, L. H., 4 H. L. 521). But as circumstances are infinite in variety, it is quite impossible to lay down any guid- ing principle as to what steps a person ought reason- ably to take for informing himself of the truth before instituting a prosecution. Art. 54. — Malice. (1) In an action of malicious prosecution, malice is generally implied, upon proof of f f absence of reasonable and probable cause for instituting the prosecution complained of (Johnstone v. Sutton, 1 T. R. 544). (2) A prosecution, though in the outset unmalicious, may become malicious, if the prosecutor, having acquired positive know- ledge of the innocence of the accused, pro- ceeds malo animo in the prosecution (per Cockburn, C. J., Fitzjohn v. Mackinder, 30 L. J., C. P. 264). (3) And where a person has not instituted, but only adopts and continues proceedings, 168 PARTICULAR TORTS. the same principle applies ( Weston v. Bec?mn, 27 L. J., Ex. 57). (1) Thus, where the defendant, at the time of the prosecution of the plaintiff, showed that he had a consciousness of the innocence of the accused, it was held evidence of malice (see Shrosbery v. Osmaston, 37 L. T. 792). (2) So, too, where one is assaulted justifiably, and institutes criminal proceedings for the assault ; if in the opinion of the jury, he commenced such pro- ceedings, knowing that he was wrong and had no just cause of complaint, malice may be presumed {Ilinton v. Heather, 14 M. 8f W. 131). (3) So, too, it may be presumed, if it be shown that the defendant knew that the plaintiff against whom he had charged a theft, took the goods under an erroneous belief that he had a legal right to do so {Huntley v. Simpson, 27 L. J., Ex. 134). (4) So, where the prosecutor of another says that he is prosecuting him in order to stoj) his mouth, it is evidence that he knew him to be innocent, and therefore that the prosecution was malicious {Healop v. Chapman, per Maule, J., 23 L. J., Q. B. 49). (5) But where the defendant has honestly and bona fide instituted the prosecution, he is not liable, although owing to a defective memory he has wrongly accused the plaintiff {Hicks v. Faulkner, 8 Q. B. D. 167). (6) Whether malice may be implied in a corpora- tion, having regard to its want of individuality, is not free from doubt. In Edwards v. Mid. JR. Co. (6 Art. 55. — Failure of the Prosecution. It is necessary to show that the proceeding alleged to have been instituted maliciously, and without reasonable or probable cause, has terminated in favour of the plaintiff, if, from its nature, it be capable of such a ter- mination (Basebe v. Matthews, L. H., 2 C. P. OF MALICIOUS PROSECUTION. 169 Q. B. D. 287), it was held by Fry, J., that a corpora- tion was capable of malice. On the other hand, in Abrath v. N. E. R. Co. (11 App. Cos. 247), Lord Bramwell strongly supported the opposite view, but this was only a dictum, and not necessary to the determination of the case ; and if a virtuous master is liable for the malice of his servant (as to which, see Part I., Chapter VI., Sect. III., supra), it is difficult to see why an impersonal corporation should not be. (7) Where, through the defendant's perjury, the judge of the county court, believing the plaintiff to have perjured himself, committed him for trial, and bound over the defendant to prosecute him, which he did, but unsuccessfully ; it was held, that the plaintiff had a good cause of action against the defendant ; because, although the defendant had not initiated the proceedings, yet he might have dis- charged his recognizance by appearing and telling the truth (Fitzjohn v. Mac/cinder, 30 L. J., C. P. 170 PARTICULAR TORTS. 684 ; and as to bankruptcy proceedings, Met. Bank v. Poole?/, 10 App. Cos. 210). This rule, which at first sight appears somewhat harsh, is founded on good sense, and applies even where the result of the prosecution cannot be appealed (Basebe v. Matthews, ubi sup.). As Compton, J., said, in Castrique v. Behrens, 30 L. J., Q. B. 168, " there is no doubt on principle and on the authorities, that an action lies for maliciously, and without reasonable and probable cause, setting the law of this country in motion, to the damage of the plaintiff. . . . But in such an action it is essential to show that the proceeding alleged to be instituted maliciously, and without probable cause, has terminated in favour of the plaintiff, if from its nature it be capable of such termination. The reason seems to be that, if in the proceeding complained of, the decision was against the plaintiff, and was still unreversed, it would not be consistent with the principles on which law is ad- ministered for another court, not being a court of appeal, to hold that the decision was come to without reasonable and probable cause." Art. 56. — Damage. In order to support an action for malicious prosecution, it is necessary to show some damage resulting to the plaintiff from the OF MALICIOUS PROSECUTION. 171 prosecution complained of (Byne v. Moore, 5 Taunt. 187). The damage need not necessarily be pecuniary. " It may be either the damage to a man's fame, as if the matter he is accused of be scandalous, or where he has been put in danger to lose his life, or limb, or liberty ; or damage to his property, as where he is obliged to spend money in necessary charges tOj acquit himself of the crime of which he is accused " (Mapne's Treatise on Damages, p. 345). In this case, as in slander, the damages must be the reasonable and probable result of the malicious prosecution, and not too remote. N.B. — There are certain torts analogous to mali- cious prosecution which occur too rarely to require notice in an elementary work of this kind. One of these is malicious arrest, which consists in wilfully putting the law in motion to effect the arrest of another uncle r civil process without cause. Arrest under civil process is, however, now so rarely possible that this form of tort may be almost deemed obsolete. Another wrong of the same nature is ca using in jury to another by an abuse of legal procedure (see Grainger v. Hill, 4 Bincj. N. C. 212). This, again, is rarely brought before the courts, and the student who desires information regarding it is referred to larger works. 172 PARTICULAR TORTS. Section III. — Of Maintenance. Art. 57. — Definition. (1) Maintenance is a malicious assistance, by money or otherwise, proffered by a third person to either party to a suit, to enable him to prosecute or defend it. (2) Malice is implied on proof of officious assistance ; but it may be rebutted by show- ing (a) that the maintainer had a common interest in the action with the party main- tained ; or (b) that the maintainer was actu- ated by motives of charity, bond fide believing that the person maintained was a poor man oppressed by a rich one. (1) Thus, in the well-known case of Bradlaugh v. Neicdegate (11 Q. B. D. 1), the plaintiff, having sat and voted as a member of Parliament without having made and subscribed the oath, the defendant, who was also a member of Parliament, procured C. to sue the plaintiff for the penalty imposed for so sitting and voting. C. was a person of insufficient means to pay the costs in the event of the action being un- successful : Held, that the defendant and C. had no common interest in the result of the action for the penalty, and that the conduct of the defendant in respect of such action amounted to maintenance, for which he was liable to be sued by the plaintiff. (2) So, advancing money to a man to enable him OF MAINTENANCE. 173 to maintain a suit, on the terms that, if the suit be successful, the maintainer shall not only have a return of the money advanced with interest, but also a bonus of 250/., is illegal, and (it is conceived) would give the defendant in the action a right to sue the maintainer (see James v. Kerr, 40 Ch. D. 449; Hutley v. Hutley, L. B., 8 Q. B. 112 ; Hilton v. Woods, 4 Eg. 432). (3) But, on the other hand, as a general rule, there is no doubt, that where there is a common interest believed on reasonable grounds to exist, maintenance, under those circumstances, would be justifiable. The oldest authorities all lay down this qualification, and, by the instances they give, show the sort of interest which is intended, f A master for a servant, or a servant for a master, an heir, a brother, a son-in-law, a brother-in-law, a fellow commoner defending rights of common, or a landlord defending his tenant in a suit for tithes (per Lord Coleridge, C. (1) Negligence consists in the omission to • do something which a reasonable man would do, or the doing something which a reason- [ able man would not do (Blyth v. Birm. Water Co., 26 L. Talbot Co., (1891) App. Cas. 499 ; The Moorcock, 14 P. D. 64 ; but see Tredegar Co. v. Owners of Calliope, (1891) App. Cas. 11). (5) On the other hand, a water company whose 1 apparatus was constructed with reasonable care, and to withstand ordinary frosts, was held not to be liable ~ for the bursting of the pipes by an extraordinarily severe frost [Blythe v. B. W. W. Co., sup.). (6) And so, where the defendants' line was mis- placed by an extraordinary flood, and by such misplacement injury was done to the plaintiff, it was held that no action could be maintained against the defendants {Withers v. The North Kent R. Co., 27 L. J., Ex. 417). (7) Again, a valuable greyhound was delivered by his owner to the servants of a railway company, who were not common carriers of dogs, to be carried; and the fare was demanded and paid. At the time of 202 PARTICULAR TORTS. delivery the greyhound had on a leathern collar, with a strap attached thereto. In the course of the journey, it being necessary to remove the greyhound from one train to another which had not then come up, it was fastened by means of the strap and collar to an iron spout on the open platform of a station, and, while so fastened, it slipped its head, ran on the line, and was killed : Held, that the fastening the greyhound by the means furnished by the owner himself, which at the time appeared to be sufficient, was no evidence of negligence (Richardson v. N. E. R. Co., L. R., 7 C. P. 78; and see also Cobb v. G. W. R. Co., (1893) 1 Q. B. 459). (8) Moreover, in order to give rise to an action for negligence founded on tort, it must be proved that the injury suffered ought reasonably to have been anticipated by the defendant as the result of his negligence. If he could not reasonably have fore- seen it, he will not be liable. Thus, where a con- tractor was engaged in making an excavation with a i steam crane, and a person came and looked on idly, and, in consequence of a defect in the crane, he was killed, it was held that there was no evidence to sus- tain an action by his widow. As Lord Esher, M.R., put it : " There was no evidence to show that the defendant's workmen had reason to expect the deceased to be at the spot where he met with his death. There was no contract between the defendant and the deceased ; the defendant did not undertake with the deceased that his servants should not be guilty of negligence ; no duty was cast upon the defendant to take care that the deceased should OF NEGLIGENCE. 203 not go to a dangerous place " (Batchelor v. Fortcscuc, 11 Q. B. D. 474 ; and see also to same effect, ToU hausen v. Davies, 58 L. J., Q. B. 98). It must be, however, borne in mind that, in both these cases, the injury was suffered on the defendant's premises, where a man may do things freely which he would I not be able to do with impunity on or adjacent to a' public highway, or another person's property. (9) Dangerous animals. — So, if a man knoicing fo keeps dangerous animals, he is answerable for any injury_they may commit, and that, too, though he has done his best to secure their safe keeping. In other words, lie who keeps an animal of the above description (May v. Burdcti, 9 Q. B. 101), knowing it to be so, does that which, in the eyes of the court, a reasonable man would not do (Cox v. Burbidge, 13 j Com. B., N. 8. 430). If the animal is by nature dangerous, no actual knowledge of its previous disposition is necessary, for in that case a man must absolutely guarantee that his precautions are ade- quate, and he would only be excused if the animal escaped by the malice of a third party or by the act of God (see Filbum v. People's Palace Co., the case of a tame elephan t, 25 Q. B. D. 258 ; 38 W. R. 706) ; h but if the animal is naturally domestic, then actual knowledge (technically called " scienter ") of his fierceness must be proved (P. v. Auggins, 2 Ld. Raym. 1583). It is not necessary, in order to sus- tain an action against a person for negligently keeping a ferocious dog, to show that the animal/ has actually bitten another person before it bit the plaintiff : it is enough to show that it has, to the 1 hn 1 k C: 204 PARTICULAR TORTS. knowledge of its owner, evinced a savage disposition, by attempting to bite ( Worth v. Gilling, L. P., 2 C. P. 1 ; and. see also Simson v. General Omnibus Co., L. P., 8 C. P. 390, a case of a kicking horse). It has been held that, if the owner of a dog appoints a servant to keep it, the servant's knowledge of the animal's disposition is the knowledge of the master, for it is knowledge acquired by him in relation to a matter within the scope of his employment {Baldwin v. Casella, L. R.,7 Ex. 325). But where the com- plaint is made to a servant, who has no control over the defendant's business, nor of his yard where his dog was kept, nor of the dog itself, the knowledge of the servant would not necessarily be that of the master (Stiles v. The Cardiff Steam Navigation Co., 33 L. J., Q. B. 310 ; and see Appkbee v. Percy, L. P., 9 C. P. 647). Exception.— By 28 & 29 Yict. c. 60, s. 1, scienter of a dog's disposition, which has injured sheep or cattle, need not be proved. It has been held that horses are to be included under the term cattle (Wright v. Pearson, L. P., 4 Q. B. 582). Nor is it necessary to show a scienter where the action is founded on the breach of a contract to use reasonable care, and not upon any breach of duty as the owner of a mischievous animal (Smith v. Cook, 1 Q. B. D. 79). (10) For further examples of negligence the student is referred to Holmes v. Mather, L. P., 10 Ex. 261 ; Firth v. Bowling Iron Co., 3 C. P. D. 254 ; Harris v. Mobbs, 3 Ex. D. 268 ; Clark v. Chambers, 3 Q. B. D. 327 ; Parry v. Smith, 4 C. P. D. 325 ; White v. France, OF NEGLIGENCE. 205 2 C. P. D. 308 ; Manzoni v. Douglas, 6 Q. B. D. 145. As to the manner of estimating damages in cases of injuries arising from railway accidents, see the case of Phillips v. L. $ 8. W. R. Co. 5 C. P. D. 280. 0-*. From the above rule and illustrations, it will be seen that the term negligence is quite a relative e xpressio n (a), and that in deciding whether a given act is, or is not, negligent, the circumstances attend- ing each particular case must be fully considered. ) " A man," it has been said, "who traverses a crowded thoroughfare with edged tools, or bars of iron, must take especial care that he does not cut or bruise others with the things he carries. Such person would ■ be bound to keep a better look out than the man who merely carried an umbrella ; and the person who carried an umbrella would be bound to take j more care in walking with it than a person who had nothing at all in his hands." Art. 68. — Contributor// Negligence. (1) Though negligence, whereby actual damage is caused, is actionable, yet if the damage would not have happened had the («) The student must also distinguish carefully between negligence giving rise to pure torts, and negligence arising out of the performance of contrac ts. In the latte r class of eases, very often a person is taken to warrant. the safety of what he has to do under the contract. / 206 PARTICULAR TORTS. plaintiff himself used ordinary care, the plaintiff cannot recover from the defendant. (2) But where the plaintiff's own negli- gence is only remotely connected with, and not a necessary factor of the accident, and the defendant might by the exercise of ordinary care have avoided the accident, the plaintiff will be entitled to recover. General illustrations. — (1) This rule is well illus- trated by two cases, in each of which the damnum was the same. In Fordham v. L. B. Sf 8. C R. Co. (L. IL, 4 C. P. 619), the facts were these: The guard of one of the defendants' trains, forcibly closed the door of one of the carriages without giving any warning, whereby the hand of the plaintiff, who was entering the carriage, was crushed. It was held, that the jury were justified in finding that the guard was \ guilty of negligence, and that there was no contri- butory negligence on the part of the plaintiff. (2) Where, however, the plaintiff, on entering a railway carriage, left his hand on the edge of the door half a minute after so entering, and the guard gave due warning before shutting the door, it was held that the act was attributable to the plaintiff's contri- butory negligence, in leaving his hand carelessly upon a door which he must have known would be immediately shut. But for that fact no accident would have happened {Richardson v. Metropolitan R. Co., L. R., 3 C. P. 374 n., and see Batchelor y. For- tescuc, 11 Q. B. D. 474). OF NEGLIGENCE. 207 (3) And so, in cases of collision between carringes, the question is, whether the disaster was occasioned wholly by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the disaster, by his own negligence, or want of common and ordinary care, that, but for his default in this respect, the disaster would not have ~T~ /, happened. In t he former case here^oye.^. l atter not (Tuff v. Wurman, 27 L. J.^C. P. 322) ; ^ and for further illustrations of the rule, see Sketton v. L. $ N. W. P. Co., L. P., 2 C. P. 631 ; Stublep v. L. Sf JST. W. P. Co., L. P., 1 Ex. 13; Stapley v. L. B. 8f S. C. P. Co., L. P., I Ex.21; Cliff v. Mid. P. Co., L. P., 5 Q. B. 258 ; Ellis v. G. W. P. Co., L. P., 9 C. P. 551 ; Armstrong v. Lane. 8f York. P. Co., L. P., 10 Ex. 47 ; and Davey v. L. $ S. W. P. Co., 12 Q. B. D. 70. (4) Illustrations where negligence of plaintiff no excuse. — If, however, although the plaintiff has been guilty of some want of care, it does not appear that the accident would not have happened if he had used ordinary care, he will be entitled to recover (Radley v. L. $ iV. W. P. Co., 1 App. Cas. 754 ; see also Dublin, Wickloic, and Wexford P. Co. v. Sh/ttcr//, 3 App. Cas. 1155 ; Watkins v. G. W. P. Co., 46 L. J., C. P. 817). The law on this point was thus summarized by "Willes, J. : "If both parties were equally to blame, and the accident the result of their joint negligence, the plaintiff could not be entitled to recover. If the negligence and default of the plaintiff was in any degree the proximate cause of the damage, he could not recover, however great may 208 PARTICULAR TORTS. have been the negligence of the defendant. But if the negligence of the plaintiff was only remotely connected with the accident, then the question is, whether the defendant might not, by the exercise of ordinary care, have avoided it" (T/iJfv. Warman, 27 L. J., C. P. 322). Therefore, where the plaintiff left his ass with its legs tied in a public road, and the defendant drove over it, and killed it, he was held to be liable ; for he was bound to drive care- fully, and circumspectly, and had he done so he might readily have avoided driving over the ass (Mi v. Mann, 10 31. 8f W. 549). (5) The plaintiff, a passenger on board a steam- boat, was injured by the falling of an anchor, caused by the defendant's steamboat striking the steamboat in which the plaintiff was a passenger. It was no defence to say that the accident arose in part from the negligent stowage of the anchor, or that the plaintiff was in a part of the vessel where he ought not to have been [Greenland v. Chaplin, 5 Ex. 243.) (6) For many years it was thought, that where a person voluntarily engaged another person to carry him, he so identified himself with the carrier as to be precluded from suing a third party for negligence in cases where the carrier was guilty of contribu- tory negligence {Thorogood v. Bryan, 8 C. B. 115). However, this doctrine was overruled by the House of Lords, in the case of The Bernina (13 App. Cas. 1), and there is no longer any inference of law that the driver of an omnibus, or coach, or cab, or the engineer of a train, or the captain of a vessel, and their respective passengers, are so far identified as to affect OF NEGLIGENCE. 209 I the latter with auy liability for the former's con- tributo ry n egligence (Matthews v. Loud. Tr. Co., 58 L. J. Q. B. 12). (7) Contributory negligence in infants. — It was formerly thought that, where the plaintiff was a child of tender years, it was no defence to an action of negligence to prove that he himself had con- tributed to his injury (Lunch v- Nurdin. . 1 Q. B. 29). But it seems to be now clearly-settled-, that the prin- ciple of contribut ory negligence applies to all case s, whether the plaintiff can be considered of an age to know the nature of the act he is doing, or otherwise (Singletoii~v. Eastern Counties 11. Co., 7 C. B. iV. S. 287 ; Abbot v. Macfie, Hughes v. Macfie, 2 R. fy C. 744; 33 L. J., Ex. 177). Thus, where the defen- dant exposed jp. a public place for sale, Tmfenced and without superintendence, a machine which might be set in motion by any passer-by, and which was dangerous when in motion ; and the plaintiff, a boy four years of age, by the direction of his brother, seven years old, placed his finger within the machine, whilst another boy was turning the handle which moved it, and his fingers were crushed : Held, that the plaintiff could not maintain any action for the injury (Manga n v. Attcrton, L. B.,1 Ex. 239). But it appears that what would amount to contributory negligence in a grown-up person, may not be so in a child of tender years (per Kelly, C. B., Lay v. M. R. Co., 34 L. T. 30). (8) It would seem that where an infant is incapable of taking care of himself, he cannot recover if the person in whose charge he was, was guilty of con- TJ. P 210 PARTICULAR, TORTS. tributory negligence (Waite v. JV. E. R. Co., El. B. 8fE. 719). " Art. 69. — Onus of Proof. (1) In general, the onus of proving- negli- gence is on the plaintiff (Ilammack v. While, 11 C. B., iV. S. 588; Toomey v. L. Sf B. R. Co., 3 ibid. 146); and of provin g contributory n egli- gence on the defendant [Dublin, Wicklotv, 6fc. R. Co. v. Blatter y, 3 App. Gas. 1169 ; Wakelin v. L. ty S. W. R. Co., 12 App. Cm. 41). (2) But where a thing is solely under the management of the defendant or his servants, and the accident is such as, in the ordinary course of events, does not happen to those having the management of such things, and using proper care, it affords prima facie evi- dence of negligence (Scott v. London, Sfc. Dock Co., 34 L. J., Ex. 220; Byrne v. Boadle, 2 Hurl. Sf C. 722). (1) Eunaway horse. — Thus, where a horse of the defendant suddenly bolted without any explainable cause, and, swerving on to the footpath, collided with and injured the plaintiff, it was held that the plaintiff had not produced any evidence of negligence sufficient to entitle him to recover. For it is no negligence to drive a horse along a public street, and horses will occasionally run away without any negli- OF NEGLIGENCE. 211 gence of the driver (Mdnsoni v. Douglas, G Q. B. D. 145). (2) Accident capable of two explanations. — So where the dead body of a man was found on the defendants' railway near to a level crossing, the man having been killed by a train which bore the .usual head-lights, but did not whistle, it was held / that, in an action by the widow, there was no evi- / dence of negligence on the defendants' part. For, as Lord Halsbury said, " One may surmise, and it is but surmise and not evidence, that the unfortunate man was knocked down by a passing train while on the level crossing ; but assuming in the plaintiff's favour that fact to be established, is there anything to show that the train ran over the man rather than that the man ran against the train?" {Wakelinv. L. 8f S. IF. B. Co., 12 App. Cos. 41 ; and see also ' Bavey v. L. 8f 8. W. R. Co., 12 Q. B. D. 70.) (3) Accident prima facie due to negligence. — On the other hand, where a person was walking in a public street and a barrel of flour fell upon him from a window of the defendant's house, it was J held sufficient primd facie evidence of negligence to JP^w I cast on the defendant the onus of proving that the I accident was not attributable to his want of care. i For barrels do not usually fall out of windows in the absence of want of care {Byrne v. Boadle, 33 L. J., Ex. 13 ; Scott v. Lon don, Sfc . Dock Co., sup.). But where the defend ant was gratuitously driving the plaintiff, and the kingbolt of the carriage broke and the horses consequently bolted, and the plaintiff was injured, it was held that there wa s no sufficie nt evi- 212 PARTICULAR TORTS. dence of negligence to render the defendant liable. For, as Lord Chelmsford, referring to cases such as that last cited, said : " This case is very different. There is nothing more usual than for accidents to happen in driving without any want of care or skill on the part of the driver " (Moffatt v. Bateman, L. It., 3 P. C. 115). In short, the question must always depend on the nature of the accident. In general, ■ where an accident may he equally susceptible of two explanations, one involving negligence, and the other not, the plaintiff must give some evidence of want of care. But where the probability is that the accident could only have had a negligent origin, the presump- tion will be the other way. Art. 70. — Duties of Judge and Jury. Whether there is reasonable evidence, to be left to the jury, of negligence occasioning the injury complained of, is a question for the judge. It is for the jury to say whether, and how far, the evidence is to be believed [Met. R. Co. v. Jackson, 3 App. Cas. 193). That is to say, the judge should not leave the case to the jury merely because there is a scintilla of evidence, but should rather decide whether there is reasonable evidence of negligence, and then leave it to the jury to find whether the facts which afford that reasonable evidence are true. The law is thus summarized in the above important case. " The OF NEGLIGENCE. 213 | judge has a certain duty to discharge, and the jurors I have another and a different duty. The judge has 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 submitted to them, negligence ought to be inferred. It is, in my opinion, of the greatest | importance, in the administration 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 j ury , 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 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. To take the instance of actions against railway companies : a company might be unpopular, unpunctual and irre- gular in its service, badly equipped as to its staff, unaccommodating to the public, notorious, perhaps, / for accidents occurring on the line, and when an | action was brought for the consequences of an acci- dent, jurors, if left to themselves, might, upon ' evidence of general carelessness, find a verdict against the company in a case where the company was really blameless. It may be said that this would be set right by an application to the court in banco, on the ground that the verdict was against evidence ; but it is to be observed that such an application, even if 214 PARTICULAR TORTS. successful, would only result in a new trial. And on a second trial, and even on subsequent trials, the same thing might happen again." See also Lee v. Nixey, 63 L. T. 285. Art. 71. — Limitation. An action for damage incurred by another's negligence must be commenced within six years. Art. 72. — Actions by Personal Representatives of Persons killed by Torts (a). (1) Whenever the death of a person is caused by a wrongful act, neglect or default of another which would (if death had not ensued) have entitled the party injured to maintain an action in respect thereof, then the wrongdoer is liable to an action, even although the circumstances amount in law to a felony (9 & 10 Vict. c. 92, s. 1). (2) Every such action must be for the (a) It will be observed that the Act applies not only to deaths caused by negligence, but to deaths however tortiously caused. As, however, cases under the Act usually arise out of negligence, it has been thought most convenient to treat of the Act under the preseut section. OF NEGLIGENCE. 215 benefit of the wife, husband, parent and child of the deceased, and must be brought by and in the name of the executor or administrator of the deceased person ; and in every such action the jury may give such damages as they may think j)roportioned to the injury resulting from such death, to the parties respectively for whom and for whose benefit such action is brought ; and the amount so recovered, after deducting the costs not recovered from the defendant, is divided amongst the before-mentioned parties , in such shares as the jury by their verdict , may direct (sect. 2). I (3) Not more than one action lies for the same cause of complaint, and every such action must be commenced within one year after the death of the deceased (sect. 4). (4) Where there is no executor or adminis- trator, or (if there is) no action is brought by him within six months, the action may be brought in the name or names of all or any of the persons for whose bcncritTlie personal representative could have sued (27 & 28 Vict. c. 95, s. 1, and see Holler an v. Bagnell, 4 L. E., Ir. 740). In respect to actions brought under the provisions of this statute (commonly known as Lord Campbell's 216 PARTICULAR TORTS. Act), which establishes a statutory exception to the common law maxim " actio personalis moritur cum persona" the following points must be reinem- \ bered — (1) The personal representatives (or should they not sue, the parties mentioned in the last clause of the rule) can only maintain the action in those cases in which, had the deceased lived, he himself could have done. So that, if the deceased were guilty of such contributory negligence as would have barred him from succeeding, those claiming as his repre- sentatives can stand in no better position (Py>n v. G. N. R. Co., 4B.8r S. 396). (2) Every such action must be brought for the benefit of the wife, husband, parent and child of the deceased. Parent includes a grand-parent aud a step-parent. The word child, a grand-child and a step-child, and a child en ventre sa mere (The George and Richard, L. R,, 3 Adm. 466 ; 24 L. T. Ill {a) ), but no t a basta rd (Dickinson v. JS T . E. R. Co., 2 II. 8f C. 735). The jury apportion the damages amongst these persons in such shares as they may think . proper. (3) The persons for whose benefit the action is brought must have suffered some pecuniary loss by i the death of the deceased (Fran/din v. S. E. R. Co.. (<■/) The reader must not be misled by this case into con- cluding that an action in rem against a sbip may be main- tained under the Act (see Seward v. The Vera Cruz, 10 App. Gas. S9). (y\r^ OF NEGLIGENCE. 217 3 Hurl. fy iV. 211). " Pecuniary loss " means "some substantial detriment in a worldly point of view." Thus, loss of reasonably anticipated pecuniary benefits, loss of education or support is sufficient {Pym v. G. N. B. Co., sup. ; Franklin v. 8. E. B. Co., sup.) ; as where the plaintiff was old and infirm and had been partly supported by his son, the deceased {Hetherington v. N. E. B. Co., 9 Q. B. D. 160). Even loss of mere gratuitous liberality {Bait on v. 8. E. B. Co., 27 B. J., C. B. 227), or loss to the personal property of the deceased by medical ex- penses is sufficient (Bradshaw v. Banc, and York. B. Co., B. B., 10 C. B. 189 ; but see Leggott v. G. N. B. Co., 1 Q. B. B). 599). Grief, mourning, and funeral expenses, however, cannot be taken into account (per Bramwell, Osborn v. Gillctt, B. B., 8 Ex. 88) ; nor can a person recover compensation where the pecuniary advantage he has lost arose from a contract bt'twei n himself and the deceased, and not from_his relationship to him (Sykes v. iV. E. B. Co., 44 B. J., C.B. 191). (4) If the deceased obtained compensation during his lifetime, no further right of action accrues to his representatives on his decease (Bead v. G. E. B. Co., v B. B., 3 Q. B. 555). But see Bah/ v. Dublin, $c, By. Co., 30 B. B., Br. 514, where the Irish Courts de- / cided contra). (5) The death must be actually caused by the wrongful act for which compensation is sought. (6) The action must be brought within twelve calendar months after the death of the deceased. (7) Where a deceased has made provision for his 218 PARTICULAR TORTS. wife, by insuring his life in her favour, then, inasmuch as she is benefited by the accelerated receipt of the amount of the policy, the jury ought, in estimating the widow's loss, to deduct from the future earnings of the deceased not the amount of the policy moneys, but the premiums which, if he had lived, he would have had to pay out of his earnings for the maintenance of the policy. (Grand Trunk R. Co. v. Jennings, 13 App. Cas. 800.) ( 219 ) Chapter III. TORTS FOUNDED ON MISUSE OE ABUSE OF PROPERTY PUBLIC OR PRIVATE. Art. 73.-7 Definition of Nuisance. A nuisance is a misuse or abuse of a man's own property or projmetary rights, or an unauthorized use of public property, causing either danger to the public (in which case it is called a public nuisance), or merely damage to a private citize n (in which case it is called a pri vate nuisance), and not necessarily depending for its wrongful cha- racter on malice or negligence, and not amounting to trespass. (1) Thus the storing of water on a man's own land in large quantities, and allowing it, either with or without negligence, to escape on to the land of his neighbour, is a private nuisance. (2) So setting up a noisy or a noisome factory in a residential neighbourhood may be a public or pri- vate nuisance according to the number of people annoyed. (8) Again to dig a hole in a highway is an unautho- 220 PARTICULAR TORTS. rized interference with the property of the public which constitutes a public nuisance. The law with regard to nuisances mainly depends upon the maxim sic utere tuo ut alienum non Iceda s. Not that that maxim can receive a literal translation, for a man may do many acts which may injure others (ex. gr., build a house which may shut out a fine view theretofore enjoyed by a neighbour) ; but I such acts are necessarily incidental to the ownership of property. The acts referred to in the maxim are acts which go beyond the recognized legal rights of a proprietor ; acts, so to speak, ultra vires, which are an abuse of the legal rights enjoyed by a proprietor. Torts arising out of nuisances may be conveniently divided into : — (1) those in which the damnum con- sists of some bo dily injury ; and (2) those in which it consists of some injury to property ; and each of these will be separately treated in the two following sections. Section I. — Of Bodily Injuries caused by Nuisances. Art. 74. — When actionable. A person who commits a nuisance either public or private, whereby bodily injury is caused to a fellow citizen, is liable to an action for damages. (1) Excavations. — Thus, where a man makes an excavation adjoining a highway, and keeps it un- OF BODILY INJURIES CAUSED BY NUISANCES. 221 fenced, lie will bo liable for any injury occasioned to a person falling into it {Barnes v. Ward, 9 C. B. 392 ; Bishop v. Trustees of Bedford Char., 28 L. J., Q. B. 215). (2) Noxious fumes. — And to keep anything in- jurious to the health of persons living near, such as a foul cesspool, or to carry on any noisome or noxious employment, is a nuisance. For cases on " Noxious Fumes," see Tipping v. St. Helens Smelting Co., L. II., 1 C/t. 00; Crump v. Lttmhert, L. R., 3 Eq. 409 ; Salvin v. N. Brancepeth Coal Co., L. Ii., 9 Ch. 705; Malt on Board of Health v. Malton Manure Co., 4 Ex. I). 302. (3) Statutory nuisances. — Certain acts have been declared nuisances by statute, and private damage caused by them is of course actionable. Thus by 24 & 25 Vict. c. 100, s. 31 (re-enacting 7 & 8 Geo. 4, c. 18), the setting of spring-guns, man-traps, or j other engines calculated to kill or do grievous bodily harm to a trespasser is made a misdemeanor, and even a trespasser hurt thereby may recover ; for although it would be partly owing to his own mis- conduct, yet if the defendant might, by acting rightly, have avoided doing the injury, the plain- tiff's contributory misconduct is no excuse. But this. Act does not apply to the setting of traps or guns/ in the night in dwelling-houses for the protection! thereof. So by the General Highway Act, 5 & 6 Will. 4, c. 50, s. 70, it is made illegal for any person to sink any pit, or erect any steam or other like engine, gin, or machinery attached thereto, within twenty-five 222 PARTICULAR TORTS. yards from any part of a carriage or cart way, unless concealed within some building, or behind some fence, so as to guard against danger to passengers, horses, or cattle. It also prohibits the erection of windmills within fifty yards, and fires for burning ironstone, limestone, or making bricks or coke, within fifteen yards of a carriage or cart way. Sect. 72 prohibits the letting-off of fireworks or firearms within fifty fee t of the centre of the way, as also the laying of things upon it or obstructing it in any way. By virtue of this Act any corporal injury caused to an individual by the non-observance of duties I thereby created, is actionable, even though the per- son injured were trespassing at the time (within twenty-five yards of the way). But if the Act has been complied with, any injury, caused by any of the things therein mentioned, would be no ground of action, there being no injuria or wrongful act. Thus, where the defendants were owners of waste land bounded by two highways, and worked a quarry outside the prohibited distance in such land, and the plaintiff walking over the waste, fell into the quarry and broke his leg, it was held that no action lay, the plaintiff being a mere trespasser (Hounsell v. Smith, 29 L. J., C. P. 203 ; and see Binks v. S. Y. R. Co., 32 L. J., Q. B. 26 ; Hard- castle v. S. Y. B. Co., 28 L. J., Ex. 139). And so, by the civil law, a trespasser could not recover for injuries suffered by reason of the dan- gerous business of the landowner, for extra culpam esse inteUigitur si scorsum a via forte vel in medio /undo OF BODILY INJURIES CAUSED BY NUISANCES. 223 ccedehat, quia in loco nu Hi extra nco jus fuerat versa ndi (Inst., lib. iv., iii. 5). (4) Ruinous premises. — To permit promises ad- joining a highway, or the land of another, to fall into a ruinous condition is a public nuisance entitling a person injured thereby to damages (Toddy. Ptiylit, 30 L. J., C. P. 21 ; see also Gicinncll v. Earner, L. P., 10 C. P. 658 ; Nelson v. Liverpool Brewery Co., 2 C. P. P. 311 ; Tarry v. Ashton, 1 Q. B. D. 314). Art. 75. — Nuisances created by Ruinous Premises, (1) As between landlord and tenant, there is no impli ed, obligatio n on the part of the former that the property let is in a safe con- dition (Keats v. Cadoyan, 20 L. J., C. P. 76 ; ~ , Hart v. Windsor, 12 M. cy W. 68 ; ErsJcine v. L Adeane, 42 L. J., Ch. 835 ; L. E., 8 Ch. 756). (2) With regard to third parties, the tenant is the person responsible for any injury resulting from the premises let being* out of repair, and the landlord will also be responsible if he has done any act authorizing the continuance of the dangerous state of the house (per Bovill, C. J., Pretty v. BicJcmore, L. P., 8 C. P. 404; Brodcr v. Saillard, 2 Ch. D. 692 ; Humphries v. Cousins, 2 C. P. D. 239 ; Firth v. Bowling Iron Works Co., 3 224 PARTICULAR TORTS. C. P. D. 254 ; Silverton v. Marriott, 59 L. T. 61). Where there is a weekly tenancy, the law does not imply a re-letting at the end of each week, so as to make the landlord liable for dangerous nuisances [Bower v. Anderson, W. N. (1893), p. 196, overruling Sandford v. Clarke, 21 Q. B. D. 398). (3) These rules, however, only apply to the property actually let; and, where the landlord retains control of the approaches (ex. gr., a staircase common to a lot of flats), he, and not the tenant, is responsible both to tenants :i and strangers for injuries caused by want of repair {Miller v. Hancock, (1893)2 Q. B. 177). (1) Falling chimneys. — Thus, if, in consequence of disrepair, a chimney falls and injures the tenant's family, yet he has no remedy, unless the landlord has contracted to keep the house in repair, or unless there was fraud on his part in industriously con- cealing the defect from the tenant {Gott v. Gaud//, 23 L. J., Q. B. 1 ; Keats v. Cadogmi, 20 L. J., C. P. 76). (2) Dangerous coal-cellar plate. — The defendant let premises to a tenant who covenanted to keep them in repair. Attached to the house was a coal-cellar , under the footway, with an aperture covered by an iron plate, which was, j?l the time of the demis e, out I of repair and dangerous. A passer-by, in conse- quence, fell into the aperture, and was injured : OF BODILY INJURIES CAUSED BY NUISANCES. 225 Held, that the obligation to repair, being, by the lease, cast upon the tenant, the landlord was not liable for this accident. And Keating, J., said, " In order to render the landlord liable in a case of this sort, there must be some evidence that he authorized the continuance of this coal shoot in an insecure state ; for instance, that he retained the obligation to repair the premises : that might be a circumstance to show that he authorized the con- tinuance of the nuisance. There was no such obli- gation here. The landlord had parted with the possession of the premises to a tenant, who had entered into a covenant to repair " (see also Gwinnett v. Earner, L. R., 10 C. P. 658, and Rich v. Basterfield, 16 L. J., C. P. 273 ; and comp. Roswell v. Prior, 12 Mood. 639). (3) And in Todd v. Flight (30 L. J., C. P. 21 ; 9 C. B., N. S. 377), where the declaration contained an allegation that the defendant let the houses when the chimneys were known by him to be ruinous and in danger of falling, that he kept and maintained them in that state, and that the tenant teas under no obliga- tion to repair, and the case was tried on demurrer, and the allegation was therefore assumed to be true, it was held that the landlord was liable. (4) In Nelson v. The Liverpool Brewery Co. (25 W. R. 877), Lopes, J., laid it down, that the owner of premises demised to a tenant is not liable for an injury sustained by a stranger, owing to the premises being out of repair, unless he has either contracted to do the repairs, or has let the premises in a ruinous and improper condition. It is, however, humbly sug- V. Q 226 PARTICULAR TORTS. gested that the last alternative is not accurate, except where the tenant has not undertaken the repairs (see remarks of Brett, L. J., in Gwinnell v. Earner, sup.) ; and the dictum is not a complete summary of the law, inasmuch as there may he possible cases where the landlord may prevent the tenant from repairing a nuisance, by threatening an action for waste. Art. 76. — Nuisances on Roads. When a person expressly or impliedly permits others to come on to roads on his land, he is liable for any injury caused to them by a nuisance thereon or near to the same, but not if they stray from such paths and trespass on the adjoining ground. (1) Private roads. — Thus, a person permitting the use of a pathway to his house, holds out an invitation to all having occasion for coming to the house, to use his footpath, and he is responsible for neglecting to fence dangerous places. And so, also, a shopkeeper, I who leaves a trap-door open without any protection, is liable to a person lawfully coming there, who suffers injury by falling through such trap-door (Tindal, 0. J., Lancaster Canal Co. v. Parnaby, 11 A. 8f E. 243 ; Barnes v. Ward, 9 C. B. 420 ; 19 L. J., C. P. 200 ; Gautrei v Mgertbn, L. R., 2 C. P. 371 ; Chapman v. Rotkwell, 27 L. J., Q. B. 315 ; Lax y . Mayor of Darlington, 5 Ex. D. 28). OF BODILY INJURIES CAUSED I5Y NUISANCES. 227 But where a person, straying from the ordinary approaches to a house, trespasses where thero is no path, and falls into an unguarded pit, he has no remedy for any injury suffered thereby, as the hurt is in such case caused by his own carelessness and misconduct, and accordingly the principle of con- tributory negligence applies (Wilde, 13., Bokh v. Smith, 31 L. J., Ex. 203). (2) Railways. — Railway companies are responsible for the state of their works, and are liable to any person injured by the faulty construction or want of repair, of their bridges, embankments, &c. (Grote v. Chester and 'Holyhead R. Co., 2 Ex. 251 ; Kearney v. L. B. § S. Coast R. Co., L. R., 6 Q. B. 759 ; Lay v. Mid. Rail. Co., 34 L. T. 30 ; and as to tramways, see Sadler v. South Staffordshire, fyc, Tramways Co., 23 Q. B. Die. 17). But if the ruinous state has been caused by a vis major or act of God, (as where a railway gives way through an extraordinary flood,) the company is not liable, provided their line is constructed so firmly as ; to be capable of resisting the foreseen, though more >y than ordinary, attacks of the weather ( Withers v. North Kent R. Co., 27 L. J., Ex. 417 ; G. W. R. Co. of Canada .v. Fawcett, 1 Moore, P. C. C, JV. S. 120; Murray v. Met. R. Co., 27 L. T. 762). (3) Canals. — So, too, canal companies are bound to take reasonable care to make their canal as safe as possible to those using it [Lane. Canal Co. v. Parnaby, 11 A. Sf E. 243). (4) Public roads. — Similar principles apply to public roads ; so that where a local authority permits a road to get into a dangerous state, they are liable if any q2 / ZA [MTU lK/'^<)/ 228 PARTICULAR TORTS. person is thereby injured {Kent v. Worthing Local Board, 10 Q. B. D. 118). / Art. 77. — Nuisances causing Injuries to Guests. Mere guests, licensees and volunteers are considered as temporary members of the host's family, and can therefore only recover for injuries caused to them by hidden dangers which they did not know of, but of which the host knew or ought to have known. But visitors on business which concerns the occupier of premises, may maintain an action for any injury caused by the unsafe state of the premises (see Ivay v. Hedges } 9 Q. B. D. 80). (1) Guests.— In Southcote v. Stanley (1 H. 8f N. 247), the plaintiff was a guest of the defendant's, and when leaving the house a loose pane of glass fell from the door as he was pushing it open and cut him. It was held, that the plaintiff being a guest, was for the time being one of the family and could not recover for an accident, the liability to suffer which he shared in common with the rest of the family. (2) Persons coming on business. — But where, on the contrary, a workman came on business to the de- fendant's manufactory, and there fell down an un- guarded shaft, the defendant was held to be liable ; although it would have been otherwise had the OF BODILY INJURIES CAUSED BY NUISANCES. 229 plaintiff been one of his own servants, for it was not a hidden danger {Indermaur v. Dames, L. P., 1 C. P. r / 274 ; 2 ib. 311). . ^-" (3) The plaintiff, a licensed waterman, having complained to the person in charge that a barge of the defendants was being navigated unlawfully, was referred to the defendants' foreman. "While seeking the foreman, he was in j ured by the falling of a bale fa '• of goods so placed as to be dangerous, and yet to give no warning of danger : Held, that the defendants were liable {White v. France, 2 C. P. D. 308). (4) Nuisances on railway stations. — So, in the case of railway companies, the company must take great care^to ensure the safety of persons coming to their station, and if through want of light or proper directions any such person is injured, he may main- tain an action against the company. Thus, where the plaintiff, having a return ticket, arrived at the wrong side of the station, and there being no proper crossing and no directions, crossed the line in order to get to his train, and in doing so, on account of the C. /] ill-lighted condition of the station, fell over a switch and was injured, it was held that an action lay against the company [Martin v. G. JS r . P. Co., 24 L. J., C. P. 209 ; Shepherd v. Mid. P. Co., 20 W. P. 705). *-*■ Art. 78. — Limitation. Actions for injuries to the person caused by nuisances must be brought within the 230 PARTICULAR TORTS. period of six years next after the cause of action arose. Exception. — Where the injury has caused death, any action brought by the personal representative, under Lord Campbell's Act, must be commenced within twelve calendar months from the death (see supra, p. 185). Sect. II. — Of Injuries to Property caused by Nuisances. Sub-sect. I.— NUISANCES TO CORPOREAL HEREDITAMENTS. Art. 79. — General Liability. Any nuisance, public or private, whereby sensible injury is caused to the property of another, or, whereby the ordinary physical comfort of human existence in such property is materially interfered with, is actionable. (1) Fumes. — Thus, in the case of Tipping v. St. Helm* Smelting Co. (L. £., 1 Ch. 66)",'"the fact that the fumes from the company's works killed the plaintiff's shrubs, was held sufficient to support the action ; for the killing of the shrubs was an injury to the property. (2) IToisy trade. — So, too, it was said, in Crump v. Lambert (L. E., 3 Eq. 409), that smoke unaccom- panied with noise, or with noxious vapour, noise OF INJURIES TO TROPERTY CAUSED BY NUISANCES. 231 alone, and offensive vapours alone, although not injurious to health, may severally constitute a nuisance ; and that the material question in all such ' cases is, whether the annoyance produced is such as materially to interfere with the ordinary comfort of human existence. (3) And so, again, in Walter v. Selfe (4 B. G. 8f Sni. 322), Vice-Chancellor Knight Bruce said : "Both on principle and authority, the important point next for decision may properly, I conceive, be put thus : Ought this inconvenience to be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among English people?" (and see Soltau v. Be Hel d, 0-u. 2 Sim., X. S. 133 ; and Inchbald v. Robinson, L. R., 4 Ch. 38S ; and see Robinson v. Kilvert, 41 Ch. 1). 88 ; 58 L. J., Q. B. 392 ; 61 L. T. 58). (4) Noisy Entertainments. — So, too, the collection of a crowd of noisy and disorderly people, to the annoyance of the neighbourhood, outside grounds in which entertainments with music and fireworks are being given for profit, is a nuisance, even though , the entertainer has excluded all improper characters, and the amusements have been conducted in an orderly way {Walker v. Brewster, L. JR., 5 Eq. 25; and see also Inchbald v. Robinson, L. R., 4 Ch. 388). (5) A proprietary club was established for pugilistic encounters, which caused the collection of large and 232 PARTICULAR TORTS. noisy crowds outside the club. The club was kept open until three o'clock a.m., and, as the members left, great noise was caused by cabs being whistled for, and by such cabs driving up to and away from the club. In an action against the club proprietor for an injunction, brought by the owners, lessees, and | occupiers of an adjoining house : Held, that the nuisance thus caused, was the reasonable and prob- able consequence of the defendant's acts, and that the injunction must be granted (Bellamy v. Wells, 00 L. J., Ch. 156 ; 63 L. T. 635 ; and see also Barber v. Bcnley, (1893) 2 Ch. 447 ; and Jenkins v. Jackson, 40 Ch. D. 71.) (6) So the letting-off of rockets, and the establish- ment of a powerful band of music playing twice a week for several hours within one hundred yards of a dwelling-house, are nuisances {lb.). (7) On the other hand, the piano appears, like the dog, to be a licensed nuisance according to English law. Thus, the giving of numerous music lessons by the defendant in a house separated from the plaintiff's house by a thin party wall, varied by practising and siDging, and evening musical entertainments, was held not to be a nuisance for which an injunction y would be granted ; and moreover, the Court restrained the plaintiff from making noises by way of reprisal {Christie v. Bavey, (1893) 1 Ch. 316). (8) Dangerous substances. — So, if a person allows substances which he has brought on his land to escape into his neighbour's, an action lies without proof of negligence. Thus, as we have seen {supra, p. 18), one who brings or collects water upon his land, m OF INJURIES TO PROPERTY CAUSED BY NUISANCES. 233 does so at his peril, for if it escape and injure his neighbour, he is liable, however careful he may have been ( Fletcher v. JRykn ds, L. 11, 3 //. L. 330 ; Fletcher*}*. v. Smith, 2 App. Ca. 781), unless the escape was caused by something quite beyond the possibility of his control, as the act of Grod or malice of a third party [Nichols v. Maryland, 2 Ex. Div. 1 ; Box v. Jubb, \ Ex. Div. 77) ; but where the water is naturally upon the land, the owner is only liable for negligence in keeping it. Nor is a mine owner liable because, by reason of his operations, water naturally percolates into the mines of his neighbours ( Wilson v. Waddell, 2 App. ? - Ca. 95). On the same ground, a landowne r is no t liable because the seed of thistles, permitted to grow on his land, is blown by the wind on to the land of - his neighbour {Giles v. Walker, 24 Q. B. D. 656).^ And so, also, where water is brought upon land, or /';:-. into a house, by the defendant, but for the joint use of himself and the plaintiff, the latter cannot com- plain of any damage (not attributable to the defen- dant's negligence) which its escape may cause to him [Anderson v Oppenhcimer, 5 Q. B. D. 602). (9) It has even been held in a recent case ( Whalley v. L. 8f Y. JR. Co., 13 Q, B. D. 131) that even if a AIvUa person has not brought the dangerous substance on I ^ to his land, he is yet liable if he takes active means to j shift the danger from himself to his neighbour. In V" that case, by reason of an unprecedented rainfall, a quantity of water accumulated against one of the sides of the defendants' embankment so as to en- danger its stability. To prevent this the defendants cut trenches in the embankment, and so let the water 234 PARTICULAR TORTS. flow on to the plaintiff's land, and injured it. It was held that although the defendants had not "brought the water on their land, they had no right to protect ■• their property by transferring the mischief from their / own land to that of the plaintiff. They would have been entitled, no doubt, to prevent the water getting against their embankment, but they had no right, when once it was there, to transfer it to their neigh- bour, any more than the owner of a natural lake could drain it on to his neighbour's lands. (10) Other examples. — Other examples of nuisance to corporeal hereditaments, are overhanging eaves from which the water flows on to another's property {Battishill v. Reecl, 25 L. J. C. P. 290) ; or over- hanging trees, or pigstys creating a stench, erected near to another's house. And it would seem that noisy dogs, preventing the plaintiff's family from sleeping, are nuisances, if the jury find that such discomfort is caused ; although, where the jury find that no serious discomfort has arisen, the court will not interfere (Street v. Gugicell, Selwyn's N. P., 13^ ji ,.ed. 1090). So, also, a small-pox hospital, so con- t. ducted as to spread infection to adjoining lands, is a nuisance (Hill v. Metropolitan Asylums Board, 6 App. Ca. 193). Art. 80. — Reasonableness of Place. Where an act is proved to interfere with the comfort of an individual, so as to come within Art. 79, it cannot be justified by the OF INJURIES TO PROPERTY CAUSED BY NUISANCES. 235 fact that it was clone in a reasonable place (Banfordy. Turnley, 31 L. J., Q. B. 286; Hill ! v. Metropolitan Asylums Board, supra). But ; what would be a nuisance in one locality may not be one in another (St. Helens Smelting Co. v. Tipping, 11 //. L. C. 650). (1) The spot selected may he very convenient for the defendant, or for the public at large, hut very inconvenient to a particular individual who chances to occupy the adjoining land ; and proof of the benefit to the public, from the exercise of a particular trade in a particular locality, can bo no ground for depriving an individual of his right to compensation in respect of the particular injury lie has sustained from it. Thus, where the defendants put up a stove in their hotel, the heat of which rendered the cellar of the* r adjoining house unfit for storing wine, it was held that it was a proper case for an injunction, although the defendants were acting reasonably in the use of" their premises {Reinhardt v. Mentasti, 42 Ch. Dir. 685, where the cases are discussed). (2) In St. Helens Smelting Co. v. Tipping (supra), Lord Westbury said : " In matters of this description, it appears to me that it is a very desirable thing to mark the difference between an action brought for a nuisance upon the ground that the alleged nuisance jj produces material injury to the property, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort. With regard to the latter, — 236 PARTICULAR TORTS. namely, the personal inconvenience and interference with one's enjoyment, one's quiet, one's personal free- dom, anything that discomposes or injuriously affects the senses or the nerves, — whether that may or may not he denominated a nuisance, must undoubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs. If a man lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in the immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabitants of the town, and the public at large. If a man lives in a street where there are numerous shops, and a shop is opened next door to him which is carried on in a fair and reasonable way, he has no ground of complaint be- cause, to himself individually, there may arise much discomfort from the trade carried on in that shop. But when an occupation is carried on by one person in the neighbourhood of another, and the result of that trade or occupation or business is a material injury to property, then unquestionably arises a very different consideration. I think that in a case of that description, the submission which is required from persons living in society to that amount of dis- comfort which may be necessary for the legitimate and free exercise of the trade of their neighbours, would not apply to circumstances, the immediate result of which is sensible injury to the value of the property." And Lord Cranworth said (referring to a case which he had tried when a Baron of the OF INJURIES TO PROPERTY CAUSED BY NUISANCES. 237 Exchequer) : " It was proved incontestably that smoke did come, and in some degree interfere with a certain person ; but I said, ' You must look at it, not with a view to the question whether abstractedly that quantity of smoke was a nuisance, but whether it was a nuisance to a person living in the town of Shields: " Art. 81. — Plaintiff coming to the Nuisance. It is no answer to an action for nuisance, that the plaintiff knew that there was a nuis- ance, and yet went and lived near it [Hole v. Barlow j 27 L. J., C. P. 208). Or in the words of Mr. Justice Byles in the above case, " It used to be thought that if a man knew that there was a nuisance and went and lived near it, he could not recover, because it was said it is he that goes to the nuisance, and not the nuisance to him. That, however, is not law now." The justice of this is obvious from the consideration, that if it were other- wise, a man might be wholly prevented from building upon his land if a nuisance was set up in its locality, because the nuisance might be harmless to a mere field, and therefore not actionable, and yet unendur- able to the inhabitants of a dwelling-house. Un 238 PARTICULAR TORTS. Art. 82. — Hon- far Rigid to commit a nuisance can he acquired. The right to carry on a noisome trade in derogation of the rights of another may be gained by statute, custom, grant, or presc rip- tion, but the right to carry on a trade which creates a public nuisance can only be acquired by clear statutory authority (see Elliotson v. Feetham, 2 Biiuj. N. C. 134 ; and see Flight v. Thomas, 10 A. 6f E. 590). (1) Thus, a railway company were by their Act authorized, among other things, to carry cattle, and also to purchase by agreement any lands not exceed- ing in the whole fifty acres, in such pla ces an should be deemed eligible, for the purpose of providing additional stations, yards, and other conveniences, for receiving, loading, or keeping any cattle, goods, or things, conveyed, or intended to be conveyed, by the railway. Under this power, the railway company bought land adjoining one of their stations, and used it as a yard for their cattle traffic. The noise of the cattle and drovers was a nuisance to the owners of houses near to the station, which, but for the Act, would clearly have entitled them to maintain an action. It was, however, held, that the purpose for which the land was acquired, being expressly autho- rized by the Act, and being incidental and necessary to the authorized use of the railway for the cattle traffic, the company were entitled to do what they did, and OF INJURIES TO PROPERTY CAUSED 15 Y NUISANCES. 239 were not bound to choose a site more convenient to other persons. In giving judgment Lord Halsbury said : "It cannot now be doubted, that a railway company constituted for the purpose of carrying passengers, or goods, or cattle, are protected in the use of the functions with which Parliament has entrusted them, if the use they make of those functions necessarily involves the creation of what would otherwise be a nuisance at common law." His Lordship, on the construction of the particular Act, came to the conclusion that the powers of the Act did necessarily involve the creation of a nuisance by the company somewhere along their line, and gave to the company the absolute discretion as to the locality, and accordingly held that the parties injured had no remedy (L. 8f B. B. Co. v. Truman, 11 App. Gas. 45. And see also Jlarrison v. Soiit/ncar/c, Sfc. Water Co., (1891) 2 Ch. 409; 04 L. T. 864.) (2) The last-mentioned cases must, however, be carefully distinguished from that of Met. Asylum District Board v. Hill (6 App. Cas. 193(a)). There it appeared, that by their act the Metropolitan Asylum District Board were authorized to purchase lands and erect buildings, to be used as hospitals. But it did not by direct or imperative provision order these things to be done. The Board erected a smallpox hospital, which was, in point of fact, a (a) As to the evidence necessary to sustain a quia timet action fdr an injunction to prohibit a proposed smallpox hospital, see Att.-Gen. v. Mayor of Manchester, (1893) 2 Ch. 81 ; 62 L. J. Ch. 459 ; 68 L. T. 608. / 240 PARTICULAR TORTS. nuisance to owners of neighbouring lands. On these j facts it was held, that the Board could not set up the i statute as a defence. Lord Blackburn, in the course of his judgment, laid it down, that on those who seek to establish that the legislature intended to take away the private rights of individuals lies the burden of showing that such an intention appears by express words or necessary implication. And Lord Watson affirmed that where the terms of a statute are not imperative but permissive, the fair inference is that the legislature intended that the discretion, as to the use of the general powers thereby conferred, should be exercised in strict conformity with private rights. It is somewhat difficult to reconcile this last dictum with the decision in the L. fy B. R. Co. v. Truman, and possibly it requires to be diluted. The distinc- tion, however, between the two cases was pointed out by Lord Selborne (11 App. Cas. 57) as follows : — "In that case (Met. Asylum District Board v. Hill), the establishment of a smallpox hospital within certain local limits was not specially authorized, as the construction of the London and Brighton Railway for the purpose (among other things) of the loading, carriage, and unloading of cattle, and other animals was here. If it had been, I do not think that this House would have considered the case of any adjacent land in a situation not defined, which the Board might have been authorized to purchase by agree- ment for the enlargement, as they might think desirable, of the hospital premises, different from that of the hospital itself. In that case, no use of any land which must necessarily be a nuisance at OF INJURIES TO PROPERTY CAUSED BY NUISANCES. 2 ll common law was authorized ; it was not shown to be impossible that lands might be acquired in such a situation, and of such extent, as to enable a smallpox hospital to be erected upon them without being a nuisance to adjoining land. Here there can be no question that the legislature has authorized acts to be done for the necessary and ordinary purposes of the railway traffic (e.g., those complained of in Rex v. Pease, 4 B. Sf Ad. 30) which would be nuisances at common law, but which being so authorized are not actionable." His Lordship then came to the conclu- sion, that the powers for making cattle yards were ejusdem generis with the other ordinary powers of the company, and that as the exercise of the ordinary powers necessarily created nuisances (e. g., smoke, noise, and so on) which were not actionable, so the exercise of the power in question necessarily created nuisances which were therefore not actionable. (3) It has since been laid down broadly, that the liability of a corporation created by statute is governed by the statute. Its powers, if exercised at all, must be exercised with care. In the absence of contrary intention, its duties and liabilities are the same as those imposed upon a private person doing the same thing [Sanitary Commrs. of Gibraltar v. Orfila, 15 App. Cat. 400 ; and see also Rapier v. Lond. Tramways Co., 68 L. T. 645 ; and Heron v. Rathmines Commrs., (1892) App. Cas. 498). v. 242 PARTICULAR TORTS. Sub-sect. 2.— NUISANCES TO INCORPOREAL HER ED IT A ME NTS. Introductory. — A servitude is a duty or service which one piece of land is bound to render, either to another piece of land, or to some person other than its owner. Property to which such a right is attached is called the dominant tenement, that over which the right is exercised being denominated the servient tenement. Servitudes are either natural or conventional. Natural servitudes are such as are necessary and natural adjuncts to the properties to which they are attached (such as the right of support to land in its natural state), and they "apply universally throughout the kingdom. Conventional servitudes, on the other / . . . ' hand, are not universal, but must always arise either by custom, prescription, or express or implied grant. The right to the enjoymeut of a conventional . servitude is called an easement or a profit a prendre, according as the right is "merely a right of user or a right of acquisition. The easements known to our law are numerous. Mr. Gale, in his excellent treatise on Easements, gives a list of no less than twenty- five "amongst other" in- stances. In an elementary work such as this, however, it is only possible to treat of those torts which most often occur in practice. I shall therefore confine myself to torts affecting — (1) rights of support for land, (2) rights of support for buildings, (13) rights to the free access of light, and possibly air, (4) rights \ to the use of water, and (5) rights of way. With OF INJURIES TO PROPERTY CAUSED BY NUISANCES. 243 regard to profits d prendre, I propose only to notice disturbances — (1) of rights of common, and (2) of fisheries. I shall also shortly refer to disturbance of the peculiar incorporeal right, called a Ferry. Art. 83. — Disturbance of Right of Support for Land without Buildings. (1) Every person commits a tort, who so uses liis own land as to deprive his neigh- bour of the subjacent or adjacent support of minerals necessary to retain such neighbour's land in its natural and unencumbered state (B ac.khmi^Tr^ 'Rnnn ini. 9 //. L. C. 503 ; Dirm. ?**- Corp. v. Allen, 6 Ch. D. 284). But there is no right to the support afforded by sub- terranean water (Popplewell v. Uod/rinson, L. B., 4 Ex. 248). (2) In order to maintain an action for disturbance of this right, some appreciable >, damage must be shown [Smith v. T/iacIcerah^J] L. fi.,1 C. P. 564), or, where an injunction is claimed, some irrepjarable damage must be threatened {Birm. Corp. v. Allen, supra). (3) The right of support may be destroyed 1 or prevented from arising by covenant, grant or reservation, but the language of the instru- ment must be clear and unambiguous (Bo?v- r2 244 PARTICULAR TORTS. botham v. Wilson, 8 II. L. C. 348 ; Aspden v. Seddon, L. E., 10 Ch. Apj). 394, and cases there cited). (1) The right arises ex jure naturse. — In Humphreys v. Brogden (15 Q. B. 7'6'J ; 20 L. J., Q. B. 10), Lord Campbell (in delivering the judgment of the court) said : " The right to latera l support from adjoining ' soil is not, like the support of one building upon another, supposed to be gained by grant, but is a right of property passing with the soil. If the owner of two adjoining closes conveys away one of them, \ the alienee, without any grant for that purpose, is entitled to the lateral support of the other close the very instant when the conveyance is executed, as much as after the expiration of twenty years or any longer period. Pari ratione, where there are separate freeholds, from the surface of the land and the mines belong to different owners, we are of opinion that the owner of the surface, while unencumbered by buildings and in its natural state, is entitled to have it supported by the subjacent mineral strata. Those strata may, of course, be removed by the owner of them, so that a sufficient support is left ; but if the surface subsides and is injured by the removal of these strata, although the operation may not have been conducted negligently nor contrary to the custom of the country, the owner of the surface may maintain an action against the owner of the minerals for the damage sustained by the subsidence. Unless the surface close be entitled to this support from the close underneath, corresponding to the lateral sup- port to which he is entitled from the adjoining OF INJURIES TO PROPERTY CAUSED RY NUISANCES. 245 surface close, it cannot be securely enjoyed as pro- perty, and under certain circumstances (as where the mineral strata approach the surface and are of great thickness) it might be entirely destroyed. We like- wise think, that the rule giving the right of support to the surface upon the minerals, in the absence of any express grant, reservation or covenant, must be laid down generally, without reference to the nature of the strata, or the difficulty of propping up the surface, or the comparative value of the surface and the minerals." (2) The servitude not extended to remote owners by reason of adjacent owner weakening the support. — But a servitude cannot be created by the act of a third party in cases where, but for that act, no ser- vitude would have existed. Between the land of the plaintiffs and that of the defendants, who were the owners of a colliery, there was an intermediate piece of land, the coal under whicli had been worked out some years before by a third party. The effect of the cavity was, that when the defendants worked their coal, subsidence was caused in the surface of the plaintiff's land. It was admitted that if the intermediate land had been in its natural state no injury would have been caused to the plaintiffs by the defendants' workings. Held, that the plaintiffs had no right of action against the defendants. And Sir Gr. Jessel, M. E., said : — " It appears to me that it would be really a most extraordinary result that the man upon whom no responsibility whatever originally rested, who was under no liability what- ever to support the plaintiffs' land, should have that & y. Mm 24 G PARTICULAR TORTS. liability thrown upon him, without any default of his own" {Corporation of Birmingham v. Allen, 6 Ch. D. 290). Exception. — Companies governed by the Railway Clauses Consolidation Act, 1845, do not acquire any such rig-lit to subjacent support, by purchasing the surface ; and the owners of the mines may, after having given notice to the company, so as to give them the opportunity of purchasing the mines, work \ them with impunity in the ordinary way (G. W. B. Co. v. Bennett, L. B., 2 //. L. 29). But neither will an action lie against the company for any damage suffered by the mine owner, although perhaps he may demand compensation under the act (see Dunn v. Birm. Canal Co., L. B., 8 Q. B. 42). Art. 84. — Disturbance of Support of Buildings. (1) A tort is not committed by one, who so deals with his own property, as to take away the support necessary to uphold his neighbour's luildincjs, unless a right to such support has TDeen gained by grant, express or implied [Partridge v. Scott, 3 M . Sf W. 220 ; Brown v. Boh ins, 4 II. &? N. 186 ; N. E. 11. Co. v. Elliott, 29 L. J., "Ch. 808) ; or by twenty years' uninterrupted user, peaceable, open, and without deception [Dalton v. Angus, 6 App. Cos. 740). OF INJURIES TO PROPERTY CAUSED BY NUISANCES. 247 (2) But the owner of land may maintain an action for a disturbance of the natural right to support for the surface, notwith- standing buildings have been erected upon it, provided the weight of the buildings did not cause the injury {Brown v. Robins, 4 H. Sf JS T . 1 SG ; Strot/an v. Knowles, 6 lb. 45-4). (1) Eight not ex jure naturee. — Thus, in Partridge v. Scott (ubi sup.), it was said that "rights of this ,' sort, if they can be established at all, niust, we think, have their origin in grant. If a man builds a house at the extremity of his land, he does not thereby acquire any easement of support or otherwise over the land of his neighbour. He has no right to load his own soil, so as to make it require the support of his neighbour's, unless he has some grant to that effect." So again, as between adjoining houses, there is no obligation towards a neighbour, cast by J law on the owner of a house, merely as such, to keep it standing and in repair ; his only duty being to prevent it from being a nuisance, and from falling on to his neighbour's property {Chandler v. Robinson, 4 Ex. 163). (2) Implied grant. — But where, on the other hand, houses are" built by the same owner, adjoining one another, and depending upon one another for support, and are afterwards conveyed to different owners, > there exists, by a presumed grant and reservation, a right of support to each house from the adjoining ones {Richards v. Rose, 9 Ex. 218). And it is appre- 248 PARTICULAR TORTS. hended that the same rule would apply where the owner of a detached house sold it, while retaining the adjacent land. (3) Right acquired by twenty years' user. — So again, a grant of a right of support for buildings is gained by uninterrupted user for twenty years, if the enjoyment is peaceable and without deception or (concealment, and so open that it must be known that some support is being enjoyed by the plaintiff's build- ing (Da If on v. Angus, 6 App. Cos. 740). This case, which was twice argued before the House of Lords sitting with the judges as assessors, is the leading authority on the question of support to houses, and the student should carefully study the various judg- ments. Whether, however, the right rests upon the doctrine of a lost grant (a) , or upon prescription at common law, or upon the provisions of the Prescrip- tion Act, is a question upon which the learned judges and law lords differed ; but the law lords all agreed that, even if the right is founded on the presumption of a lost grant, the presumption is i ^.solute , and cannot be rebutted by showing that no grant has in fact been made. (4) The right established in Dalton v. Angus to a right of support for an ancient building by the (a) As to the theory of "lost grant," which is a presump- tion of law that an easement or profit enjoyed for a long period must have had a legal origin, or else it would have been stopped by the owner of the servient tenement, the reader is referred to the opinion of Bo wen, J., in Dalton v. . Angus, 6 App. Cas. at p. 777. OF INJURIES TO PROPERTY CAUSED BY NUISANCES. 249 adjacent land, equally applies to support enjoyed from an adjacent building, even although both buildings were erected by different owners {Lemaitre v. Davis, 19 Ch. Div. 281, where Hall, V.-C, con- sidered that the right arose under the Prescription Act). (5) Where natural right to support of site infringed, the consequent damage to a modern house may be recoverable. — Even although no right of support for a building has been gained, yet if the act of the defendant would have caused the site of the building to subside even if the building had not been there, the defendant will be liable, not merely for the damage done to the land, but also for the injury caused to the building. For he will have committed a wrongful act (viz., an act causing the subsidence of his neighbour's land), and will consequently be liable for all damages which might reasonably have been anticipated as the consequence of that act (Slroi/an v. Knoicles, 6 //. fy iV. 454 ; and see Sunt v. Peake, 29 L. J., Ch. 785). Art. 85. — Disturbance of Bight to Light and Air. (1) There is no right, ex jure naturce, to the free passage of light to a house or building, but such a right may be acquired by (1) ex- 4 press or implied grant from the contiguous proprietors; (2) by reservation (express or 250 PARTICULAR TORTS. implied) on the sale of the servient tenement; or (3) by actual enjoyment of such light for the full period of twenty years without inter- .ruption submitted to or acquiesced in for one year after the owner of the dominant I tenement shall have had notice thereof, and of the person making or authorizing such '•interruption (2 & 3 Will. 4, c. 71, ss. 3 and 4). (2) Xo right to the free access of air to land or buildings at large can be gained, ■ except by express grant (Bryant v. Lefever, 4 C. P. Div. 172). But (semble) a right to the free access of air through a particular defined channel, or through a particular aperture, may be acquired by implied grant, or by twenty years' uninterrupted user (Bass v. Gregory, 25 Q.B. Div. 481 ; Ilally. Lichfield Brewery Co., 49 L. J., Ch. 655; Bent v. Auction Mart Co., L. li., 2 Eq. 238; but see contra per Cotton, L. J., in Bryant v. Zcfever, supra). (3) Where a right to light has been acquired, no person will be allowed to interrupt it, unless he can show that, for whatever purpose the plaintiff might wish to employ the light, there would be no material interference with it by the alleged obstruction (Yates v. Jack, L. B., 1 Ch. 295; OF INJURIES TO PROPERTY CAUSED BY NUISANCES. 251 and sec per Best, C. J., in Back v. Stacey, 2 C. Sf F. 465, and Dent v. Auction Mart Co., L. R.j 2 Eq. 245 ; Rolson v. Whittingham^ L. E., 1 Ch. 412, and Theed v. Debenham, 2 Ch, D. 1G5). (4) The question whether there has been a material obstruction depends on the facts of each case {Parker v. First Avenue Hotel Co., 24 Ch. D. 282). (5) Where a new building has been erected on the site of one in respect of which a right to the access of light had been gained, then, \ in order to entitle the owner of the new building to access of light, it must be shown that some defined part of an ancient window admitted access of light through the space occupied by a defined part of an existing window (Fendarves v. Munro, (1892) 1 Ch. 611 ; Scott v. Fape, 53 L. T. 598). (1) Implied grants of right. — Implied grants of easements are generally founded on the maxim, " A man cannot derogate from his own grant." There- fore if one grants a house to A., and keeps the land adjoining the house in his own hands, he cannot I build upon that land so as to darken the windows of the house, unless he has expressly reserved the : right to do so (ffaynes v. King, (1893) 3 Ch. 439) J And if he have sold the house to one and the land to i another, the latter stands in the grantor's place as 252 PARTICULAR TORTS. regards the house (see per Bayley, J., Canham v. Fisk, 2 Or. Sf J. 128 ; Swansborough v. Coventry, 9 Bing. 309 ; Davies v. Marsha//, Drew Sf Sm. 557 ; Frewen v. Phillips, 11 C. B., JS T . S. 449 ; Wilson v. Queen's Club, (1891) 3 Ch. 522 ; Myers v. Catterson, 43 C. Z>. 470 ; Bailey v. /cite, 64 L. T. 789 ; and Corbet v. Jiwes, (1892) 3 Ch. 137). (2) And so, where two separate purchasers buy two unfinished houses from the same vendor, and, at the time of the purchase, the windows are marked out, this is a sufficient indication of the rights of each, and implies a grant (Compton v. Richards, 1 Pr. 27 ; Glare v. Harding, 27 L. J., Ex. 286 ; Russell v. Watts, 10 App. Cas. 590). And the same rule appears to apply where two devisees take under the will of the same testator {Phillips v. Low, (1892) 1 Ch. 47 ; and see Tawes v. Knowles, 37 W. R. 675). (3) Similarly, where two lessees claim under the same lessor, it is said that they cannot, in general, encroach on one another's access to light and air (Couttsv. Gorham, Moo. 8f Mai. 396; Jacomb v. Knight, 32 L. J., Ch. 601). But it would seem that this statement of the law is too wide, as it is difficult to see what right the second lessee can have against the first, for no act of his can be a derogation from the second demise. And, indeed, it has been distinctly held, that where the grantor sells the land but retains the house, there is no duty upon the grantee of the land to abstain from building upon it, and the grantor cannot prevent him ; for to do so would be, as much as in the preceding case, a derogation from his own OF INJURIES TO PROPERTY CAUSED BY NUISANCES. 253 grant {White v. Bass, 31 L. J., Ex. 283; Wheehlon v. Burrows, 12 Oh. D. 31). (4) Again, if the owner of the dominant tenement authorizes the owner of the servient tenement, either verbally or otherwise, to do an act of notoriety upon his land, which, when done, will affect or put an end to the enjoyment of the easement, and such act is done, the licensor cannot retract. Thus, where A. had a right to light and air across the area of B.; and gave B. leave to put a skylight over the area, which B. did : it was held that A. could not retract his licence, although it was found that the skylight obstructed the light and air. For it would be very unreasonable, that after a party has been led to incur expense in consequence of having obtained a licence from another to do an act, that other should be per- mitted to recall his licence ( Winter v. Brockicell, 8 East, 309; Webb v. Paternoster, Palmer, 71). (5) Reservation of light seldom implied. — But although by the grant of a part of a tenement there will pass to the grantee all those continuous and apparent easements over the other part of the tene- ment which are necessary to the enjoyment of the part granted, and have been hitherto used therewith ; yet as a general rule there is no corresponding im- plication in favour of the grantor, though there are certain exceptions to this, as in the case of ways of necessity. A workshop and an adjacent piece of land belonging to the same owner were put up for sale by auction. The workshop was not then sold, but the piece of land was. A month after the con- 254 PARTICULAR TORTS. veyance the vendor agreed to sell the workshop to another person. The workshop had windows over- looking and receiving their light from the piece of land first sold. The purchaser of the piece of land proposed to build thereon so as to obstruct the light of the workshop windows. On an action being brought to restrain him, it was held that as the common vendor had not, when he conveyed the piece of land expressly reserved the access of light to his windows, the purchaser thereof could build so as to obstruct them, and that whatever might have been the case had both lots been sold at one auction, there was under the circumstances no implied reser- vation of light over the piece of land first sold (Wheeldon v. JSurrows, ubi sup.). (6) On the other hand, although there may be no reservation of the right to light in express terms, yet, if looking at the whole transaction, the nature of the property, and so on, a reservation of the right to light appears to be reasonably implied, the Court will give effect to it. (See and consider circumstances in Russell v. Watts, 10 App. Cos. 590.) (7) Right gained by prescription. — To gain a right by prescription under the statute 2 & 3 Will. 4, c. 71, s. 3, there must be an uninterrupted us er for twent y years without the written consent of the owner of the servient tenement. As, however, by sect. 4, nothing is to be deemed an interruption unless submitted to for a year after notice, it has been held that enjoy- ment for nineteen years and 330 days, followed by an interruption of thirty-five days just before the OF INJURIES TO PROPERTY CAUSED BY NUISANCES. 255 action was commenced, was sufficient to establish the right {Flight v. Thomas, 11 A. 8f E. 688). (8) The interruption, to defeat the right, must be the interruption of the defendant, and not a voluntary deprivation by the plaintiff himself of the access of light. Thus, the owner of a building having windows with moveable shutters, which are opened at his pleasure for the admission of light, acquires a prescriptive right to light, under sect. 3 of the Pre- scription Act, at the end of twenty years, if he opens the shutters at any time he pleases for the admission of light during those twenty years, and if also there is no such interruption of the access of light over the neighbouring land as is contemplated by sect. 4 [Cooper v. Straker, 40 Ch. Dir. 21). And, similarly, the fitting of windows with stained glass does not deprive the owner of the right to the free access of light {Att.-Gen. v. Queen Anne's Mansions Co., 60 L. T. 759; 37 W. B. 572). (9) If the interruption of the defendant during the twenty years was in its nature permanent [ex.gr. , a stone wall), the onus is on the plaintiff of proving that such interruption did not in fact con- tinue with his acquiescence for a year ; but if the interruption is in its nature fluctuating {ex.gr., boxes piled one upon another), the onus of proving that it in fact continued, and was acquiesced in for a year by the plaintiff, lies on the defendant {Presland v. Bingham, 41 Ch. Biv. 26S). (10) As sects. 3 and 4 of the Prescription Act do , not expressly mention the Crown, no prescriptive \ right to light against the Crown can be gained 256 PARTICULAR TORTS. under that Act (Wheaton v. Maple 8f Co., (1893) 3 Ch. 48; Perry v. flames, (1891) 1 Ch. 658). And inasmuch as an easement, if acquired by prescription, either at common law or under the Act, must be absolute and not for a term of years, no such right can be acquired under the Act against the Crown's tenants or lessees (lb.) (11) Eight to access of air. — Cases to prevent, or to claim damages for, interference with ancient lights, are frequently spoken of as cases of light and air, and the right relied on as a right to the access of light and air. But this is inaccurate. The cases, as a rule, relate solely to the interference with the access of light, and a right of way of easement to the access of air over the general unlimited surface of a neigh- bour cannot be acquired by mere enjoyment (per Cotton, L. J., Bryant v. Lefever, 4 C. P. Die. 172). Thus, in Webb v. Bird (13 C. B., JY. S. 841), it was held that the owner of an ancient windmill could not, under the Prescription Act, prevent the owner of adjoining land from building so as to interrupt the passage of air to the mill. A similar decision was given in Bryant v. Lefever (sup.), where it was sought to restrain the defendant from building so as to obstruct the access of air to the plaintiff's chimneys. However, it seems that a right to the uninterrupted passage of air along a defined channel (cx.gr., a venti- lating shaft), may be gained under sect. 2 of the Prescription Act by twenty years' uninterrupted enjoyment (Bass v. Gregory, 25 Q. B. Div. 481), or possibly a right to the free flow of air through a defined opening (ex.gr., a window) ; at all events, if OF INJURIES TO PROPERTY CAUSED BY NUISANCES. 257 the diminution complained of involved danger to health {City of London Brewery Co. v. Tennant, 9 Ch. App. at p. 221). (12) Degree of diminution giving rise to an action. — As above stated, the plaintiff is entitled to enjoy the access of light without regard to his particular employment. Thus, in Yates v. Jack (1 Ch. App. 295), where it was contended that the plaintiff was not entitled to relief, because, for the purposes of his then present trade, he was obliged to shade and subdue the light, and that consequently he suffered no actual damage, Lord Cranworth said : " This is not the question. It is comparatively an easy thing to shade off a too powerful glare of sunshine, but no adequate substitute can be found for a deficient supply of daylight. I desire, however, not to be understood as saying that the plaintiffs would have no right to an injunction unless the obstruction of light were such as to be injurious to them in the trade in which they are now engaged. The right conferred, or recognized, by the statute 2 & 3 Will. 4, c. 71, is an absolute and indefeasible right to the en- joyment of the light, without reference to the purposes for which it has been used. Therefore, I should not think the defendant had established his defence, unless he had shown, that, for whatever purpose the plaintiffs might wish to employ the light, there would be no material interference with it " (and see Aynsley v. Glover, L. R., 18 Eq. 544, and 10 Ch. 283). (13) And so, where ancient lights are obstructed, the fact that the owner of the building, to which u. s 258 PARTICULAR TORTS. the ancient rights belong, has himself contributed to the diminution of the light, will not of itself pre- clude him from obtaining an injunction or damages (Tapling v. Jones, 11 H. L. C. 290 ; Arcedeckne v. Kelk, 2 Giff. 683; Straight v. Bum, 5 Ch. App. 163 ; and see also illustration 8, sup.). (14) Enlargement of ancient lights. — Nor will an enlargement of an ancient light, (although it will not enlarge the right, Cooper v. Hubbock, 31 L. J., Ch. 123,) diminish or extinguish it. And, therefore, where the owner of a building having ancient lights, enlarges or adds to the number of windows, he does not preclude himself from obtaining an injunction to restrain an obstruction of the ancient lights (Aynsley v. Glover, sup.). (15) Right to light exclusively confined to build- ings. — The dominant tenement must be a building ; and, therefore, a person who grants a lease of a house and garden, is not precluded (under the doctrine of not derogating from his own grant) from building on open ground retained by him adjacent to the house and garden, though, by so doing, the enjoy- ment of the garden, as pleasure ground, is interfered iwith, there being no obstruction of light and air to j the house {Potts v. Smith, L. R., 6 Eq. 311). Art. 86. — Disturbance of Water Rights. (1) The right to the use of the water of a natural surface stream, whether for irrigation, \ OF INJURIES TO PROPERTY CAUSED P>Y NUISANCES. 259 navigation, or otherwise, and whether the stream be tidal or not [North Shore Co. v. Pion, 14 App. Cas. 612), belongs, jure naturae and of right, to the owners of the adjoining lands, every one of whom has an equal right to use the water which flows in the stream ; and consequently, no proprietor can have the right to use the water to the prejudice of any other proprietors (Chase?nore v. Richards, 7 II. L. Ca. 349 ; Wright v. Howard, 1 S. $ S. 203 ; Dickinson v. Gr. June. Canal Co., 7 Ex. 299; Booth v. Ratte, 15 App. Cas. 188). (2) There is, however, no property in water which runs through natural undefined channels underground, but it must, never- theless, not be made the vehicle of a nuisance ( Chasemore v. Richards, sup. ; Ballard v. Tom- linson, 29 Ch. Div. 115). (3) An artificial watercourse may have been originally made under such circum-' stances, and have been so used as to give to the owners on each side all the rights which a riparian proprietor would have had if it had been a natural stream [Sutcliffe v. Boothe, 32 L. J., Q. B. 136). (1) Rights of riparian owners. — Every riparian owner may reasonably use the stream for drinking, watering his cattle, or turning his mill, and other s2 260 PARTICULAR TORTS. purposes, provided he does not thereby seriously diminish the stream (see Embreyv. Owen, 6 Ex. 353). (2) Disturbance of riparian rights. — If the rights of a riparian proprietor are interfered with, as by diverting the stream or abstracting or fouling the water, or by cutting him off from a navigable tidal river, by embanking the foreshore [North Shore Co. v. Pion, sup.), he may maintain an action against the wrongdoer, even though he may not be able to prove that he has suffered any actual loss (Wood v. Waud, 3 Ex. 748 ; Embrey v. Owen, 6 Ex. 369; Crossley v. Lightowler, 2 Ch. App. 478). So if one erects a weir which affects the flow of water to riparian owners lower down the river, an injunction will be granted (Belfast Ropeicorks v. Boyd, 21 L. R., Ir. 560). (3) Damage essential to action. — Nevertheless, where a non-riparian owner, with the licence of a riparian owner, takes water from a river, and after using it for cooling certain apparatus, returns it un- diminished in quantity and unpolluted in quality, a lower riparian owner has no right of action. For his right is to have the water undiminished in quantity and undefiled in quality, and that right is not infringed (Remit v. G. E. R. Co., 27 Ch. D. 122). (4) Fouling underground water. — Although there can be no property in water running through under- ground undefined channels, yet no one is entitled to pollute water flowing beneath another's land. Thus, in Ballard v. Toin/inxon (29 Ch. D. 115), where neighbours each possessed a well, and one of them turned sewage into his well, in consequence whereof OF INJURIES TO PROPERTY CAUSED BY NUISANCES. 261 the well of the other became polluted, it was held by Pearson, J., that no action lay ; on the ground that, it being settled law that a landowner is entitled so to deal with underground water on his own land as to deprive his neighbour of it entirely, it follows that he is equally entitled to render such water unfit for use by polluting it. This decision was, however, reversed on appeal. For (as was pointed out in a previous edition of this work, issued while the appeal was pending) there is a considerable difference between intercepting water in which no property exists, on the one hand, and sending a new, foreign and deleterious substance on to another's property, on the other hand. The immediate damnum (viz., the pollution of the water) might possibly be no legal damnum; but allowing sewage to escape into another's property (for y cujus est solum, ejus est usque ad inferos) is of itself an injuria which needs no damnum. (5) Drawing off underground water sometimes actionable. — Although there is no property in under- ground water flowing in undefined channels, yet a landowner will be restrained from drawing off under- ground water from his neighbour's land, if, in doing so, he necessarily abstracts water which has once flowed in a defined surface channel (see Gr. June. Canal Co. v. Shugar, 6 Ch. App. 488). (6) Riparian proprietor causing floods. — On the same ground of injury to a corporeal hereditament, a riparian owner commits a tort if, by means of im- pediments placed in or across a stream, he causes the water to flood the lands of a proprietor higher up the stream. And it seems that he will be liable, 262 PARTICULAR TORTS. not only for damages resulting therefrom, but for nominal damages, even if no actual injury has been sustained {McGlone v. Smith, 22 L. R., Ir. 559). And similarly, if a higher proprietor collects water and pours it into the watercourse in a body, and so floods the lands of a proprietor lower down the stream, he will be liable for damage resulting therefrom (Chasemore v. Richards, 7 II L. C. 349 ; Sharpe v. Hancock, 8 Sco. iV. R. 46). (7) Exception. Prescriptive rights. — Eights in de- rogation of those of the other riparian proprietors may be gained by grant or prescription {Acton v. Blundell, 12 M. Sf W. 353 ; Carlyon v. Lavering, 1 //. $f JST. 784; 26 L. J., Ex. 251). (8) Riparian rights in artificial watercourses. — Where a loop had been made in a stream, which loop passed through a field A., it was held that the grantee of A. became a riparian proprietor in re- spect of the loop (Nuttall v. Braceicell, L. R., 2 Ex. I). (9) A natural stream was divided immemorially, but by artificial means, into two branches ; one branch ran down to the river Irwell, and the other passed into a farm-yard, where it supplied a watering trough, and the overflow from the trough was formerly diffused over the surface and discharged itself by percolation. In 1847, W., the owner of the land on which the watering trough stood, and thence down to the Irwell, connected the watering trough with reservoirs, which he constructed adjacent to, and for the use of, a mill on the Irwell. In 1865, W. became owner of all the rest of the land through OF INJURIES TO PROPERTY CAUSED BY NUISANCES. 263 which this branch flowed. In 1867, he conveyed the mill, with all water rights, to the plaintiff. In an action brought by the plaintiff against a riparian owner on the stream above the point of division, for obstructing the flow of water, it was held that the plaintiff was entitled to maintain the action (Holker v. Porrit, L. R., 10 Ex. (Ex. Ch.) 59). (10) But where the watercourse is merely put in for a temporary purpose, as for drainage of a farm or the carrying off of water pumped from a mine, a neighbouring landlord, benefited by the flow from ' the drain or stream, cannot sue the farmer or mine < owner for draining off the water, even after fifty years' enjoyment (Great rex v. Hay ward, 8 Ex. 291). Art. 87. — Disturbance of Private Rights of Way. (1) A right of way over the land of another can only arise by grant, express or implied, or by prescription, of which 20 years' un- interrupted user is proof. It is usually appurtenant to and passes along with some corporeal hereditament ; but a right of way " in gross " may be granted to a particular person apart from the ownership of any land. (2) A person commits a tort who disturbs the enjoyment of a right of way by blocking 264 PARTICULAR TORTS. it up permanently or temporarily, or by otherwise preventing the free user of it. (1) Right restricted by the terms of the grant or the extent of the user. — Eights of way are susceptible of almost infinite variety. Thus there may be a right of way to church, which can only be lawfully used for going to and from the church {Gale on Easements, 6th ed. 305) ; or the right may be limited ( by the grant (or if it depends on prescription, may be limited by the nature of the user) to a footway, a horseway, or carriageway, and the like. Indeed, grants are somewhat strictly construed, and a grant of a right of carriageway will not authorize the grantee to drive cattle over the way (see judgments in Ballard v. Dyson, 1 Taunt. 279). So again proof l of user for farming purposes does not necessarily prove a right of way for the purpose of conveying coal from a mine [Cowling v. Higgimon, 4 M. Sf W. 245) ; nor does the finding by a jury of a right of way for carting timber prove a right for all carts, carriages, horses, or on foot, or for any of such rights [Higham v. Rabett, 5 Bing. N. C. 622 ; and see also Wimbledon Conservators v. Dixon, 1 Ch. Div. 362 ; and Bradburn v. Morris, 3 ib. 812). (2) Rights of way of necessity. — Where one grants land to another, and there is no access to the land sold except through other land of the grantor, or no access to the land retained except through the land sold, the law implies a grant or reservation (as the case may be) of a private right of way limited to such purposes as will enable the owner of the dominant OF INJURIES TO PROPERTY CAUSED BY NUISANCES. 265 tenement to enjoy it in the condition it was in at the time when the severance took place ; ex. gr., if it was then farm land, the right of way will be limited to farming purposes, and so on {Corp. of London v. Riggs, 13 Ch. Div. 798). In ways of necessity, however, the owner of the dominant tenement cannot range across the servient tenement between the points most con- venient for himself, but is obliged to pursue the track selected by the owner of the servient tenement {Bolton v. Bolton, 11 Ch. Div. 968). It must also be pointed out that when the necessity ceases (for instance, if the owner of the dominant tenement buys a field intervening between it and the highway), the right ceases also ; but, on the other hand, it appears to revive again when the necessity revives {Holmes v. Goring, 2 Bing. 76 ; Pearson v. Spencer, 1 B. fy S. 584). (3) Implied grant of particular way. — Rights of way of necessity must, however, be carefully distin- guished from a right of using a particular made road, which is sometimes implied in a conveyance. Thus, where a lessee of two adjacent plots builds a house on each, and makes a passage partly on plot A. and partly on plot B., forming a back road to the gardens of each, and then assigns plot A. to X., and plot B. to Z., without mentioning any right of way, both X. and Z. will have the right of using the road not as a way of necessity (although it may be the only method of getting into their respective gardens except through their houses), but by implied grant as being in the nature of a continuous and apparent easement (see Brown v. Alabaster, 37 Ch. Div. 490, where the 266 PARTICULAR TORTS. doctrine of continuous or apparent easements is discussed) . (4) Prescriptive rights of way. — Under sect. 2 of the Prescription Act (2 & 3 Will. 4, c. 71), a pre- scriptive right of way is gained by twenty years' uninterrupted user as of right. It seems, however, that this section only applies where the user is practically a continuous one. Thus, where the right claimed was a right of way for removing timber as it was cut, and it appeared that the right had only been exercised at intervals of several years, it was held that the act did not apply to so discontinuous an easement, and that no prescriptive right was gained by the fact that more than twenty years had elapsed since the first user of the alleged way {Hollins v. Verney, 13 Q. B. Die. 304). (5) Obstruction of rights of way. — It does not require a permanent obstruction to give rise to a right of action. Thus the padlocking of a gate is sufficient (Kidgett v. Moore, 9 C. B. 361) ; and so permitting carts or waggons to remain stationary on the road in the course of loading and unloading, so as to obstruct the passage over the road, will give rise to an action (Thorpe v. Bruwjitt, 8 Ch. App. 650). The above is necessarily only a mere sketch of the law relating to private ways, which is a subject on which a volume might be easily written. For further information as to this class of easements, the reader is referred to Mr. Grale's or Mr. Groddard's excellent treatises on Easements. OF INJURIES TO PROPERTY CAUSED BY NUISANCES. 267 Art. 88. — Disturbance of Rights of Common. (1) A right of common is a right which one person has of taking some part of the^ produce of land, the whole property in which is vested in another (Goodcve's R. P., 3rd ed. 335). It may be ap pend ant to other land , (that is, may owe its origin to a general privilege supposed to have been conferred by lords upon tenants to whom they granted arable land), or a ppurtena nt to other land (in which case it must have arisen by grant J or prescription), or in gross (which must arise | in the same way). Common appendant is restricted to horses, oxen, cows, and sheep (which are called commonable beasts) ; but common appurtenant or in gross is not ' necessarily so restricted. (2) A person commits a tort against a commoner, who, having no right of common, puts beasts on the land; or, having such a right, puts uncommonable ones on it ; or surcharges, by putting more beasts on it than he is entitled to put ; or (whether lord or stranger), encloses any part of the com- mon without leaving sufficient land for the full enjoyment of the commoners' rights, and without having obtained the leave of the Board of Agriculture (56 Sf 57 Vict. c. 57). 268 PARTICULAR TORTS. (1) Turning uncommonable cattle on to the common. — The lord may by prescription put a stranger's cattle into the common, and also, by a like prescrip- tion for common appurtenant, cattle that are not commonable may be put into the common ; but, un- less such prescription exists, the cattle of a stranger, or the uncommonable cattle of a commoner, may be driven off, or distrained damage feasant, or their owner may be sued either by the lord or a com- moner. (2) Surcharging. — Surcharging generally happens where the right of common is appendant, that is to say, where the common is limited to beasts that serve the plough or manure the land, and are levant and couchant on the estate ; or where it is appurtenant, that is to say, where there is a right of depasturing a limited number of beasts upon the common, which number is taken to be the number which the land, in respect of which the common is appurtenant, is capable of supporting through the winter if cultivated for that purpose (Carr v. Lambert, L. JR., 1 Ex. 108). A common in gross can only arise from grant to a particular person and his heirs, or by prescriptive personal enjoyment by a man and his ancestors, and, having no connection with his land, the number of commonable beasts is usually expressly limited by the grant or prescription. Common appendant and ' appurtenant being limitable by law, a commoner surcharging the common commits a tort for which the lord may distrain the beasts surcharged, or bring an action ; and any commoner may also bring an action, whether the surcharger be the lord or a fellow commoner (Steph. Comm., Bk. V., CIi. 8). OF INJURIES TO PROPERTY CAUSED BY NUISANCES. 2G9 (3) Approvement. — The common being free and open to all having- commonable rights over it, it follows that when the owner of the land (or some other person) so encloses or obstructs it that the commoner is precluded from enjoying the benefit to which he is by law entitled, the commoner may maintain an action {Cih/ Commrs. of Servers v. Glass, L. R., 19 Eq. 134). Thus, if the owner ploughs it I up, or drives off the commoner's beasts, or stocks it with rabbits to such an extent that all the herbage is eaten by them, he commits a tort. The owner may, however, make a warren, so long as the rabbits be ikept under so as not to occasion injury to the com- moners (Bullew v. Langdon, Cro. Eliz. 876). How- ever, most modern actions respecting commons have arisen out of what is called approvement by the owners of the soil, that is to say, the enclosure of part of the common. Prior to 1894 this was legal, under the provisions of the Statute of Merton, so long as the owner left sufficient common for the full enjoyment of the commoners' rights, although the onus of proving this lay on the owner, and not on the commoners (Betts v. Thompson, 6 Ch. App. 732 ; Robinson v. Duleep Singh, 11 Ch. Div. 798). If, however, the approvement diminished the common to such an extent as to obstruct the rights of the commoners, then an action would lie against the owner of the soil. Thus, in an action brought on behalf of all the tenants of a manor to prevent the lord from enclosing parts of the waste, and from digging or removing any part of the soil of the waste so as to interfere with their right of common, it was shown that the tenants had rights of common of pasturage 270 PARTICULAR TORTS. appendant over the waste for sheep, and that certain landowners, not tenants of the manor, had rights of common appurtenant over it for sheep, and that such rights appendant and appurtenant entitled the com- moners to turn out a greater number of sheep than the waste would carry. It was, however, proved that, having regard to the average number of sheep that had actually been turned out for many years past, it was highly improbable that nearly as many sheep as the waste could carry would ever be turned out again. It was, nevertheless, held that this made no difference, and that the question of sufficiency of common must be determined according to the theoretical number of sheep which the commoners were entitled to turn out, and consequently the lord was restrained from doing any acts which would diminish the amount of pasturage [Robertson v. Hartopp, 43 Ch. Div. 484). (4) Law of Commons Amendment Act, 1893. — How- ever, the old law has been greatly modified by the statute 56 & 57 Yict. c. 57, by which, in future, the consent of the Board of Agriculture is made a con- dition precedent to inclosures and approvements of common. With regard to inclosures of commons, the reader is also referred to the Metropolitan Com- mons Acts, 1866 and 1869, and the Commons Act, 1876. It is conceived that the Act of 1893 does not, ; however, alter the lord's right of digging for gravel, mould, loam, and sub-soil in the waste, so long as he does not infringe on the rights of the commoners, as such acts stand on a different basis to approvements ,(see Hall v. Byron, 4 Ch. Div. 667.) OF INJURIES TO PROPERTY CAUSED BY NUISANCES. 271 Art. 89. — Disturbance of Rights of Fishery. (1) A right of fishery may be exclusive or in commo n. An exclusive right of fishery (called a several fishery) may arise from the exclusive ownership of the bed of a non-tidal river, lake, or pond ; or from a grant, express or im- plied ; or from the party "claiming the right being a riparian owner on a non-tidal river; or (in tidal waters) by grant from the Crown. A common of fishery, or common of free fishery, as it is sometimes called, is a right to fish in common with the owner of the fishery, or with others, and always depends on grant, either express, or implied by long user. (2) A person commits a tort when he fishes in another's fishery, whether he takes fish or not ; or when he disturbs, or drives away, or destroys the fish in a fishery ; or diverts the water to an unreasonable extent. (1) Origin of exclusive piscatorial rights. — The person who is the owner of the bed of the non-tidal river, pond, or lake in which a fishery is situate, has, prima facie, the exclusive right to fish therein. Such a right is called a "several territorial fishery," and the j right of fishing arises from the ownership of the soil entitling the owner to the profits arising within it (Lord Fitzicatter's Case, 1 Mod. 105 ; Gibbs v. Wolli~ colt, 3 Salkeld, 290 ; Cooper v. Phibbs, L. R„ 2 272 PARTICULAR TORTS. H. L. 165). A manorial fishery is generally of this character when the river is non-tidal. The river and the fishery in it form a separate close parcel of the manor (Duke of Devonshire v. Pattinson, 20 Q. B. D. 265). (2) But a person may he the owner of a fishery although he is not owner of the soil, in which case his title must have originally been derived by grant from the owner of the soil, and is sometimes, although inaccurately, described as a "free fishery," such a fishery is an incorporeal hereditament {Duke of Somerset v. Fog well, 5 B. Sf C. 875). (3) A person may also be owner of a fishery by reason of his being owner of the riparian land abutting on a non-tidal river, and, in the absence of evidence to the contrary, is presumed to be such owner (Part- heriche v. Mason, 2 Chitty, 658). But this presumption may be rebutted by showing that when the riparian land was granted, the fishery in the water was in the possession of another person (Duke of Devonshire v. Pattinson, 20 Q. B. D. 265 ; Bloomfield v. Johnston, 8 Ir. C. L. 97, 104), or by showing user of the fishery by another, and absence of user by the riparian owner. (4) Common of piscary. — A person may have a right to fish from his land although he is not owner of the fishery. This is a " common of fishery " or a " common of free fishery," and arises by grant from the owner of the fishery of a right to fish in common with the owner, or in common with the owner and other grantees. (5) A person may also have a right to fish in OF INJURIES TO PROPERTY CAUSED 13Y NUISANCES. 273 common with others throughout a fishery, irrespective of any ownership of the soil of the river or of the riparian land. This is also " common of fishery " arising by grant from the owner of the fishery (Bracfon, Lib. iv. c. 28, sect. 4). (6) Piscatorial rights of the public. — The public have no right to fish in a non-tidal river (Pearce v. Scotcher, 9 Q. B. D. 162 ; Blount v. Layard, (1891) 2 Ch. 681 (note), and Smith v. Andrews, (1891) 2 Ch. 678, and cases there cited). But they have a prima facie rig ht to fish in tidal water. This claim may, however, be rebutted by showing evi- dence of the ownership of a several fishery in another of such antiquity as to presume a legal origin (Makomson v. (JDea, 10 //. of L. Cas. 593). ' And if this be once_proyed, the exercise of fish- ing by the public, even for a long period, will not take the several right away, or confer any right on the public. For the public cannot, in law, prescribe for a profit a prendre in alieno solo, nor acquire any right adversely to the owner under any statute of i limitations ; and an incorporeal hereditament, such as a several fishery, which can only pass by deed, cannot be abandoned (JYeill v. Duke of Devonshire, 8 App. Cas. 135). The existence of a several fishery , in tidal waters rebuts the prima facie claim of the Crown to the soil of the foreshore (Att.-Gen. v. Emerson, L. R., (1891) App. Cas. 649). (7) Meanings of "free fishery" and "several fishery." — There is much confusion in books with regard to the meaning of the expressions " several fishery" and "free fishery," and it has been attempted 274 PARTICULAR TORTS. to draw a distinction between them, viz.. that a fishery is said to he " several " when accompanied by owner- ship of the soil, and said to he " free " when existing apart from the soil ; hut this is not accurate. The words "several" and "free" are only alternative expressions for the same thing (Gipps v. Woollicott, Holt, 323 ; Stuart-Moore on Foreshore, p. 740 ; Hoi ford v. Bailey, 13 Q. B. Die. 426). The confusion has arisen from a misprint iu the text of Co. Lit. 122 a. (8) Several fisheries in tidal waters. — A several fishery in tidal water may exist as an incorporeal right arising from a grant by the Crown apart from the ownership of the soil. Thus, where the free inhabitants of ancient tenements in a borough had, from time immemorial, exercised the exclusive privi- , lege of dredging for oysters iu tidal waters, it was held that a lawful origin for the usage ought to be presumed if reasonably possible ; and that the pre- sumption which ought to be drawn as reasonable in law and probable in fact, was, that there was a grant to the corporation of the borough, subject to a trust or condition in favour of the free inhabitants of ancient tenements in the borough (Good man v. Mayor of Saltash, 7 App. Cas. 633). However, a several I right of fishery in tidal waters usually arises from the ownership of the soil of the foreshore, which again depends on express grant from the Crown, or grant implied from long user (see Neill v. Duke of Devonshire, 8 App. Cas. 135; Att.-Gcn. v. Emerson, supra ; and Moore on Foreshore, pp. 658 and 734). It should be observed that a several fishery in a tidal river, the waters of which have permanently receded from one channel, and flow in another, cannot be OF INJURIES TO PROPERTY CAUSED BY NUISANCES. 275 followed from the old to the new channel (Mayor of Car/isle v. Graham, L. 11., 4 Ex. JiGl). (9) Copyhold fisheries. — A fishery, and also a right of common of fishery, may be held of copy of court roll within a manor {Att-Gen. v. Emerson, supra ; Tilbury v. Sika, 45 Ch. Div. 98). Art. 90. — Disturbance of Ferries. (1) A ferry is the exclusive right of carry- ing passengers in boats across a river or arm of the sea. It can only arise by royal franchise, which may, however, be presumed from immemorial user. (2) A person commits a tort who disturbs a legal ferry, either by refusing to pay a reasonable toll, or by setting up a new ferry J or passage to the diminution of the custom of the legal ferry. (1) Owner of ferry must keep sufficient boats. — Since the granting of ferries is a royal franchise and is in derogation of the common law, it is incumbent on the owner of a ferry to keep sufficient boats and men to carry over the public and their goods at all times, and to charge a reasonable toll for so doing. The demand, therefore, of an unreasonable toll would justify the passenger in refusing to pay ; but it must be remembered that the reasonableness is a matter for a jury. t2 276 PARTICULAR TORTS. (2) What amounts to disturbance of ferry. — A ferry is the connecting link between two highways or two towns, and the carrying of passengers in boats belonging to other people to and from places so near these highways or towns as to allow the passengers to rejoin these highways almost immediately, will be a disturbance of the ferry, and the persons so con- veying over will be committing a tort (Blissett v. Hart, Willes, 508). On the other hand, the ferrying over of persons to places near these highways or towns will not be construed as an interference with the ferry, provided it is shown that it is not done fraudulently, or as a pretence for avoiding the regular ferry (Tripp v. Frank, 4 Burn. 8f E. 666). The plea that the legal ferry is not sufficient for the public convenience owing to the altered condition of the neighbourhood will not avail (Newton v. Cubitt, 5 C. B., N. 8. 627). (3) Building of a bridge. — With regard to the interference with a ferry by the building of a bridge, it is laid down in BTop/cins v. G. JY. B. Co. (2 Q. B. B. 224, at p. 233), where a railway bridge with a foot- path had been erected about half a mile above the legal ferry, that although the erection of a bridge in the line of the ferry so as to take the traffic of the highways between which the ferry plies would be an infringement, yet when a bridge is made to provide for a new traffic, and in no way takes the traffic directly from the two termini of the ferry, the owner of the ferry cannot claim compensation from the railway company for interference with the ferry. It was also questioned whether the exclusive right of an OF INJURIES TO PROPERTY CAUSED BY NUISANCES. 277 owner of a ferry extended beyond the carriage of passengers by boat. Other disturbances. — There are several other kinds of disturbance of incorporeal rights which it is im- possible to treat of in an elementary work of this character, and for which I must refer the reader to larger works. Art. 91. — Remedy for Nuisances by Abatement. (1) The law gives a peculiar remedy for nuisances by which a man may right himself without legal proceedings. This remedy is called abatement, and consists in the removal of the nuisance. (2) A nuisance may be abated by the party aggrieved thereby, so that he commits no riot in the doing of it, nor occasions, in the case of a private nuisance, any damage beyond what the removal of the inconvenience necessarily requires (Stepk. Comm.j blc. v. ch. i.) ; but a man cannot enter a neighbours land to prevent an apprehended nuisance (a). (a) It is generally very imprudent to attempt to abate a nuisance. It is far better to apply for an injunction. 278 PARTICULAR TORTS. (1) Thus, if my neighbour build a wall and ob- struct my ancient lights, I may, after notice and request to him to remove it, enter and pull it down (B. v. Boseicell, 2 Salk. 459) ; but this notice should always be given [Banes v. Williams, 16 Q. B. 55H). (2) But where the plaintiff had erected scaffolding in order to build, which building when erected would have been a nuisance, and the defendant entered and threw down the scaffolding, such entry was held wholly unjustifiable (Norn's v. Baker, 1 Boll. Bep. 393, fol. 15). (■'■) Obstructions to watercourses may be abated by the party injured, whether by diminution or flooding {Roberts v. Rose, L. B., 1 Ex. 82). (4) A commoner may abate an encroachment on his common by pulling down a house, even although it be inhabited, after first giving notice and requesting the occupier to remove it (Buries v. Williams, supra ; Lane v. Capsey, (1891) 3 Ch. 411) ; or a fence obstruct- ing his right (Mason v. Ccesar, 2 Mod. 66) ; but he cannot abate a warren, however great a nuisance, but must appeal to a court of justice (Cooper v. Marshall, 1 Burr. 259). (5) Whether where a person has failed to obtain a mandatory injunction to remove a nuisance he can himself abate it, seems to be a moot point (see per Chitty, J., Lane v. Capsey, sup.). OF INJURIES TO PROPERTY CAUSED BY NUISANCES. 279 Art. 92. — Remedy of Reversioners for Nuisances. Whenever any wrongful act is necessarily injurious to the reversion to land, or has actually been injurious to the reversionary interest, the reversioner may sue the wrong- doer {Bedingfield v. Onslow, 1 Saund. 322). (1) Thus, opening a new door in a house may be an injury to the reversion, even though the house is none the worse for the alteration ; for the mere alte- ration of property may be an injury [Young v. Spencer, 10 B. $ C. 145, 1-52). (2) So if a trespass be accompanied with an obvious denial of title, as by a public notice, that would probably be actionable (see judgment, Dobson v. Blackmore, 9 Q. B. 991). (3) So, the obstruction of an incorporeal right, as of way, air, light, water, &c, may be an injury to the reversion (Kidgitt v. Moor, 9 C. B. 364 ; Met. Ass. Co. v. Fetch, 27 L. J., C. P. 330 ; Greenslade v. Halliday, 6 Bing. 379). (4) But an action will not lie for a trespass or nuisance of a. mere transient and temporary character (Baxter v. Taylor, 4 B. fy Ad. 72). Thus, a nuisance arising from noise or smoke will not support an action by the reversioner (Mumford v. 0. W. 8f W. P. Co., 25 L. J., Ex. 205 ; Simpson v. Savage, 26 L. J., C. P. 50). Some injury to the reversion must always be proved, for the law will not assume it from any acts of the defendant (Kidgill v. Moor, sup.). 280 PARTICULAR TORTS. Chapter IV. OF TORTS FOUNDED ON THE DIRECT INFRINGEMENT OF PRIVATE RIGHTS. Introductory. — Hitherto we have been considering torts in which there was a wrongful act distinct from the damage to the plaintiff, and which might, if it I had not been followed by damage, have given no right of action. Such wrongful acts depend, as we have seen, upon (1) a state of mind from which the law infers malice, that is, a conscious, or intentional violation of law to another's prejudice; or (2) a course of conduct from which the law infers negli- gence,~or reckless indifference to the rights of others; or (3) an usurpation of powers, or an abstention from duties in relation to property of the defendant or the public, which may or may not cause private damage. The class of torts about to be considered, however, differs from all the foregoing, by reason of the wrongful act and the damage resulting from it being practically indivisible. These are what are spoken of in many text books as wjitrice. They require no proof of intention to commit a wrong, and no proof of damage resulting from it. The mere fact that a private right has been infringed icithout lawful excuse, OF FALSE IMPRISONMENT. 281 constitutes of itself both wrongful act and damage, and gives the party affronted a right of action, even although his actual surroundings may have been improved rather than depreciated. Such torts usually consist of infringements of the rights of liberty, of immunity from physical violence, or of the enjoyment of real or personal property, including in the latter term incorporeal property consisting of monopolies or rights of exclusive user in relation to patented inventions, trade marks, designs, and literary productions. Section I. — Of False Imprisonment. Art. 93. — Definition. False imprisonment consists in the im- position of a total restraint for some period, however short, upon the liberty of another, without sufficient legal authority (Bird t. Jones, 7 Q. B. 743). The restraint may bo either physical or by a mere show of authority. Moral restraint. — Imprisonment does not imply incarceration, but any restraint by force or show of authority. For instance, where a bailiff tells a per- son that he has a writ against him, and thereupon such person peaceably accompanies him, that consti- tutes an imprisonment {Grainger v. Bill, 4 Binj. 282 PARTICULAR TORTS. N. C. 212 ; see Earvey v. Mayne, 6 Ir. R., C. L. 417). But some total restraint there must be, for a partial restraint of locomotion in a particular direction, (as by preventing the plaintiff from exercising his right of way over a bridge,) is no imprisonment ; for no restraint is thereby put upon his liberty {Bird v. Jones, sup.). Legal warrant. — To constitute false imprisonment the defendant must have acted without due legal authority. Where, therefore, a gaoler acts upon a writ or order of a competent court, which is prima facie valid, he is not liable if it subsequently turns out that the order was wrong {Greaves v. Keene, 4 Ex. Die. 73 ; and Henderson v. Preston, 21 Q. B. D. 362). But, on the other hand, where the order shows on the face of it that the prisoner was committed under a statute which expressly casts on the gaoler the duty of releasing the prisoner after a specified time unless the party on whose motion the prisoner was committed brings the prisoner to the bar of the court, then the gaoler will be liable unless he so releases the prisoner {Moone v. Rose, L. R., 4 Q. B. 486). The rules which apply to imprisonments by private persons, and those which apply to imprisonments by judges and other magistrates, are necessarily different. It will be therefore more convenient to consider them separately. OF FALSE IMPRISONMENT. 283 Sub-sect. I.— OF IMPRISONMENTS BY PRIVATE PERSONS AND CONSTABLES. Art. 94. — General Immunity from Imprisonment. (1) A person who arrests or 'imprisons another without a legal, and legally exe- cuted ; warrant, commits a tort, except in certain exceptional cases. (2) Where an arrest can only lawfully be made by warrant, the person arresting must have it with him at the time, ready to be produced if demanded (fiilliard y. Lo.vton, 31 L. J., 31. C. 123). Thus, for either a constable or private person to arrest a person who is suspected of a mere mis- demeanour, or a person who has committed a past assault, or the like, without the warrant of a magis- trate, is a false imprisonment, for which the party making the arrest will he liable, even although the party arrested might have been properly arrested, had a warrant been obtained. Exceptional cases justifying arrests by private persons. — In the following cases, a private citizen may arrest another with impunity, viz. : — ■ (1) Bail. — A person who is bail for another may always arrest and render him up in his own discharge {Exp. Lyne, 3 Stark. 132). (2) Felons. — A treason or felony having been actual/// committed, a private person may arrest one reasonably, although erroneously, suspected by him ; 284 PARTICULAR TORTS. but the suspicion must not be mere surmise (Beekmth v. Philby, 6 B. fy C. 635). So a person may arrest another in order to prevent him from committing a felony. In an action for false imprisonment, where the de- fendant, in order to justify himself, must prove that a felony was in fact committed, and where it appears that if it were committed it could only have been committed by the plaintiff, the fact that the latter has been tried for the alleged felony and acquitted, does not estop the defendant from giving evidence that he did really commit it. For the verdict in the criminal trial was res inter alios acta, aud could not reasonably be held binding on the defendant in a distinct proceeding (CaMll v. Fitzgibbon, 16 L. R. Ir. 371). (3) Breakers of peace. — A private person may and ought to arrest one committing, or about to commit, a breach of the peace, but not if the affray be over, and not likely to recur [Timothy v. Simpson, 1 Cr. M.8fB. 757). (4) Night offenders. — Any person may arrest and take before a justice one found committing an indict- able offence between 9 p.m. and 6 a.m. (14 & 15 Vict. c. 19, s. 11.) (5) Malicious injurers. — The owner of property or his servant may arrest and take before a magistrate anyone found committing malicious injury to such property (14 & 15 Vict. c. 19, s. 11 ; 24 & 25 Vict. c. 97). (6) Offering goods for pawn. — A private person, to whom goods are offered for sale or pawn, may, if he has reasonable ground for suspecting that an OF FALSE IMPRISONMENT. 285 offence against the Larceny Amendment Acts (24 & 25 Yict. c. 9G ; 35 & 3G Vict. c. 93, s. 34) has been committed with respect to them, arrest the person offering them. (7) Vagrants. — Any person may arrest and take before a magistrate, one found com miffing an act of vagrancy (5 Greo. 4, c. 83). N.B. Such acts are soliciting alms by exposure of wounds, indecent exposure, false pretences, fortune- telling, betting, gaming in the public streets, and many other acts, for which I must refer to the 4th section of the Act. (8) Brawlers. — A churchwarden may apprehend, and take before a magistrate, any person disturbing divine service (14 & 15 Vict. c. 19, s. 11). (9) Other cases depending upon relationship. — Officers in the army or navy may imprison their subordinates. So a parent may lock up his child, and a master his apprentice. A husband, however, may not detain his wife against her will, even for the purpose of enforcing an order for the restitution of conjugal rights (Reg. v. Jackson, (1891) 1 Q. B. 671). (10) Particular exceptions. — In London, the owner of property may arrest anyone found committing any indictable offence, or misdemeanour in respect to such property, punishable upon summary con- viction. Most private Railway Acts, too, give power to officers of the company to detain unknown offenders against the Acts ; but arrests can only be lawfully made in strict accordance with the powers thus given (Knights v. L, C. 8f D. Eg. Co., G2 L. J., Q. B. 378). 286 PARTICULAR TORTS. Ship masters have special powers of imprisoning crew and passengers. Special powers, too, are frequently given to the police of certain towns and cities, by their Local Acts. Under the above exceptions, numbered 4, 5, and 7, it is no excuse to prove the commission of the offence immediately before the arrest, for the arrest must be made in the course of the commission of the offence (Simmons v. Milligen, 2 C. B. 533). Exceptional cases justifying arrests by constables without warrant. — Of course a constable can arrest a person in his capacity of a private citizen wherever a private citizen could do so. But in addition to such cases, he has greater powers conferred upon him than ordinary individuals, in order that he may efficiently perform his duty as a guardian of the public peace. (1) Cases of suspected felony. — As we have seen, a private person can only arrest a suspected felon in cases where a felony has actually been committed by some one ; and if it should turn out that no such felony was ever committed, he will be liable, however reasonable his suspicions may have been. It would, however, be obviously absurd to require a constable to satisfy himself at his peril that a felony had been in fact committed, before acting ; and consequently the law provides that a constable may make an arrest merely upon reasonable suspicion that a felony has been committed, and that the party arrested was the doer ; and even though it should turn out eventually that no felony has been committed he will not be liable {Marsh v. Loader, 14 C. £., if. 8. 535 ; Griffin OF FALSE IMPRISONMENT. 287 v. Coleman, 28 L. J., Ex. 134). The suspicion, how- ever, must be a reasonable one, or the constable will be liable. Thus, a person told the defendant, a constable, that a year previously he had had his harness stolen, and that he now saw it on the plain- tiffs horse, and thereupon the defendant went up to the plaintiff and asked him where he got his harness from, and the plaintiff making answer that he had bought it from a person unknown to him, the con- stable took him into custody, although he had known him to be a respectable householder for twenty years. It was held that the constable had no reasonable cause for suspecting the plaintiff, and was conse- quently liable for the false imprisonment (Hogg v. Ward, 27 L. J., Ex. 443). But, on the other hand, where a constable knows that a warrant is out against a man, that is sufficient ground for his reasonably suspecting that a felony has been committed (Creagh v. Gamble, 24 L. JR., Jr. 458). But where one man falsely charges another with having committed a felony, and a constable, at and by his direction, takes that other into custody, the party making the charge, and not the constable, is liable (Davis v. Russell, 5 Bing. 354). "It would be most mischievous," Lord Mansfield remarks, "that the officer should be bound first to try, and at his peril exercise his judgment as to the truth of the charge. He that makes the charge alone is answer- able" (Griffin v. Coleman, 4 II. $ N. 265). (2) Breakers of peace. — A constable may and ought to arrest one committing, or about to commit, a breach of the peace, even after the affray (so that 288 PARTICULAR TORTS. it be immediately after), in order to take the offender before a magistrate (JR. v. Light, 27 L. J., M. C. 1). ('i) Malicious injurers. — A constable may arrest and take before a magistrate anyone found committing malicious injury to property (14 & 15 Yict. c. 19, s. 11 ; 24 & 25 Vict. c. 97). (4) Brawlers. — A constable may arrest and take before a magistrate anyone interrupting divine service (14 & 15 Yict. c. 16, s. 11). Sub-sect. 2.— OF IMPRISONMENT BY JUDICIAL OFFICERS. Art. 95. — General Authority of Judicial Officers. (1) No judicial officer, invested with autho- rity to imprison, is liable to an action for a wrongful imprisonment, unless he acted beyond his jurisdiction (Dosivall v. Impet/, 1 B. 6r C. 169; Kemp v. Neville, 10 0. B., N S. 523) ; not even though he imprisons the plaintiff maliciously (Be vis v. Smith, 18 C. B. 126; DaivJcins v.Paulet, L. B., 5 Q. B. 94). (2) In order to constitute a jurisdiction, such officer must have before him some suit, complaint, or matter in relation to which he has authority to inflict imprisonment or arrest. (1) In the case of Scott v. Stamfeld (L. JR., 3 Ex. OF FALSE IMPRISONMENT. 289 220), which, though an action of slander, will very well repay a careful perusal, Kelly, C. B., remarks, "It is essential in all courts that the judges, who are appointed to administer the law, should be permitted to administer it under the protection of the law independently and freely, without favour and without fear. This provision of the law is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence, and with- out fear of consequences. How could a judge so exercise his office, if he were in daily and hourly fear of an action being brought against him, and of having the question submitted to a jury, whether a matter, on which he has commented judicially, was or was not relevant to the case before him ? Again, if a question arose as to the bona fides of the judge, it would have, if the analogy of similar cases is to be followed, to be submitted to the jury. It is impossible to over-estimate the inconvenience of such a result. For these reasons I am most strongly of opinion that no such action as this can under any circumstances be maintainable" (a). (a) Whether a magistrate ■would be equally exempted from liability in cases where he had acted maHciously, does not seem to have been decided. It will at once appear that the judgment of the Chief Baron, which I have cited at consider- able length on account of its lucid enunciation of the prin- ciples on which this exception is based, is broad enough to include actions brought against a justice of the peace. At the same time, it must be admitted the first section of Jervis' U. IT 290 PARTICULAR TORTS. (2) "Where a court has jurisdiction of a matter before it, but acts erroneously, the parties suing (unless they acted maliciously), the court itself, and the officers executing its orders or warrants, will be protected from any action at the suit of a person arrested. But where it has no jurisdiction all these parties may be liable (Comyn, Dig., tit. County Court, 8 ; Iloulden v. Smith, 14 Q. B. 841 ; West v. Small- wood, 3 M. 8f W. 421 ; Wingate v. Watte, G M. 8f W. 746; Brown v. Watson, 23 L. T. 745). (3) So where a magistrate acts without those circumstances which must concur to give him juris- diction he will be liable {Morgan v. Hughes, 2 T. R. 225). But an information brought before a magis- trate, charging an offence within his cognizance, gives him jurisdiction {Cave v. Mountain, 1 M. Sf G. 257). Art. 96. — Prima facie Jurisdiction sufficient to excuse Judicial Officer. The judge of an inferior court, having a prima facie jurisdiction over a matter, is not Act (11 & 12 Vict. c. 44), as has been pointed out by Mr. Koscoe in bis Law of Nisi Prius Evidence, would seem to imply tbat such an action could be supported. There the matter rests, but I confess I have little doubt, should the question ever arise, that, provided he acts within his juris- diction, a magistrate is no more answerable (by action, that is to say) for a malicious act, than is a judge of a county court or of the High Court. In this opinion the learned author above cited seems to concur. OF FALSE IMPRISONMENT. 291 responsible for a false imprisonment com- mitted on the faith of such prima facie juris- diction, if, by reason of something of which he could have no means of knowledge, he really has no jurisdiction (Calder v. Ilalket, 3 Moore, P. C. C. 28). Thus, if, through an erroneous statement of facts, a person be arrested under process of an inferior court, for a cause of action not accruing within its jurisdic- tion, no action lies against the judge or officer of the court, but against the plaintiff only (Olliett v. Besscy, 2 W. Jones, 214). Art. 97. — Power to imprison for Contempt of Court. The superior courts of law and equity have jurisdiction to punish by commitment for any insult offered to them, and any libel upon them, or any contemptuous or im- proper conduct committed by any person with respect to them ; but inferior courts of record have power only to commit for con- tempts committed in court. (1) During the pendency of a suit in a superior court, the publisher of a newspaper commits a con- tempt if he publishes extracts from affidavits with comments upon them (Tichborne v. Mostyn, L. P., 7 Eq. 55 n.). u2 292 PARTICULAR TORTS. (2) Where an indictment lias been removed into the Queen's Bench Division, and a day appointed for trial, the holding of public meetings, alleging that the defendant is not guilty, and that there is a con- spiracy against him, and that he cannot have a fair trial, is a contempt of court (Onslow's and Whallei/s case, Reg. v. Castro, L. R., 9 Q. B. 219). (3) A solicitor is guilty of a contempt of court in writing, for publication, letters tending to influence the result of a suit {Davis v. Eley, L. R., 7 Eq. 49). (4) It seems that a judge of a county court has power only to commit for contempts committed before the court and whilst it is sitting. (See R. v. Leroy, Weekly Notes, Feb. 8, 1873.) (5) A justice of the peace may commit one who calls him, in court, a liar (Rex v. Revel, 1 Sir. 421). \ Art. 98. — Power of Magistrates to imprison. (1) If a felony, or breach of the peace, be committed in view of a justice, he may per- sonally arrest the offender or command a bystander to do so, such command being a good warrant. But, if lie be not present, lie must issue his written warrant to apprehend >the offender (2 Hale, PL Or. 86). (2) Where a justice acts in a matter with- out any, or beyond his, jurisdiction, a person OF FALSE IMPRISONMENT. 293 injured by any conviction or order issued by such justice in such matter cannot maintain an action in respect thereof, until such con- viction shall have been quashed by the proper tribunal in that behalf ; nor for any- thing done under a warrant followed by a conviction or order, until such conviction be quashed ; nor at all for anything done under a warrant for an indictable offence, if a sum- mons had been previously served and not! obeyed. (See 11 & 12 Vict. c. 44.) Constables executing the warrants of justices issued without jurisdiction are specially protected by 24 Geo. 2, c. 44, ss. 6, 8, from any action, unless they have refused for six days after written demand to produce the warrant. It may be also observed that, by sect. 9, a month's notice is required to be given before commencing an action against a justice for any act done in the exe- cution of his office ; and by 11 & 12 Vict. c. 44, s. 11, if after such notice, and before the commencement of the action, the justice tender a sum of money in amends, then if the jury shall be of opinion that such sum is sufficient, they shall give their verdict for the defendant. A justice acting maliciously is neverthe- less entitled to notice, and to tender amends {heavy v. Patrick, 15 Q. B. 272). 294 PARTICULAR TORTS. Art. 99. — Limitation. No action can be brought for false im- prisonment except within four years next after the cause of action arose. But as im- prisonment is a continuing tort, the period runs from the last day of the imprisonment, and not from the first. Exceptions. — (1) Justices. — An action against a justice of the peace for anything done by him in the execution of his office must be commenced within six calendar months next after the commission of the act complained of (11 & 12 Vict. c. 44, s. 8). (2) Constables. — Various Acts for the appointment and regulation of police, limit the period within which actions may be brought against them. The follow- ing are the most important : 10 Geo. 4, c. 44, relat- ing to the Metropolitan police, enacts, by sect. 41, that all actions for anything done in pursuance of the Act shall be {inter alia) commenced within six calendar months, and that a month's written notice shall be given to them ; and the same provision is extended to special constables and county policemen by 1 & 2 Will. 4, c. 41, and 2 & 3 Vict. c. 93, respectively. Borough constables are protected in a similar manner by 5 & 6 Will. 4, c. 76, s. 113 : and sect. 76 of the same Act enacts that men sworn as such shall not only within the borough, but also within the county in which the same is situated, and in any county within seven miles of such borough, OF FALSE IMPRISONMENT. 295 have all such powers and privileges, and be liable to all such duties and responsibilities, as any constable at the time of the passing of that Act had or there- after might have within his constablewick. Constables may also pay money into court. (See 11 & 12 Vict. c. 44, ss. 9, 11.) All such actions against justices and constables must (by various Acts) be laid in the county in which the trespass was committed. Habeas corpus. — In addition to the remedy by action, the law affords a peculiar and unique sum- mary relief to a person wrongfully imprisoned, viz., the writ of //((bras rorjxis ad subjiciendum. This writ may be obtained by motion made to any superior court, or to any judge when those courts are not sitting, by any of her Majesty's subjects. The party moving must show probable cause that the person whose release he desires is wrongfully de- tained. If the court or judge thinks that there is reasonable ground for suspecting illegality, the writ is ordered to issue, commanding the detainer to pro- duce the party detained in court on a specified day, when the question is summarily determined. If the detainer can justify the detention, the prisoner is remitted to his custody. If not, he is discharged, and may then have his remedy by action. (See 31 Car. 2, c. 2 ; and 5G Geo. 3, c. 100.) 296 PARTICULAR TORTS. Section II. — Of Direct Bodily Injuries. Causing death. — Direct personal injuries causing death are crimes of a most heinous nature. They rather come, therefore, under the ordinances of the criminal than of the civil law. Putting these aside, all other direct bodily injuries may be considered as either assaults or more or less aggravated forms of battery. Art. 100. — Definition of Assault. An assault is an attempt or offer to do harm to the person of another, which might have succeeded if persevered in, or would have succeeded but for some accident. (1) Thus, if one make an attempt, and have at the time of making such attempt a present prima facie ability to do harm to the person of another, although no harm be actually done, it is nevertheless an assault. For example, menacing with a stick a person within reach thereof, although no blow be struck (Read v. Coker, 13 C. B. 850) ; or striking at a person who wards off the blow with his umbrella or walking- stick, would constitute assaults. (2) But a mere verbal threat is no assault : nor is a threat consisting not of words but gestures, unless there be a present ability to carry it out. This was illustrated by Pollock, C. B., in Cobbett v. Grey (4 Exch. 744). "If," said the learned judge, "you OF DIRECT BODILY INJURIES. 297 direct a weapon, or if you raise your fist within those limits which give you the means of striking, that may be an assault ; but if you simply say, at such a distance as that at which you cannot commit an assault («), 'I will commit an assault,' I think that is not an assault." (3) To constitute an assault there must be an attempt. Therefore, if a man says that he would hit another were it not for something which withholds him, that is no assault, as there is no apparent attempt (Tuber rille v. Savage, 1 Mod. 3.) (4) For the same reason, shaking a stick in sport at another is not actionable (see Christopherson v. Bare, 11Q.B. 477). Art. 101. — Definition of Battery. Battery consists in touching another's person hostilely or against his will, however slightly (Rawlings v. Till, 3 M. Sr W. 28). This touching may be occasioned by a missile or any instrument set in motion by the defendant, as by throwing water over the plaintiff (Pursell v. Horn, I 8 A. 8f E. 602), or spitting in his face, or causing another to be medically examined against his or her will [Latter v. Bradetcll, 29 W. B. 239). In accord- ance with the rule, a battery must be involuntary : therefore a voluntarily suffered beating is not action- al) Query — Battery. 298 PARTICULAR TORTS. able; for volenti non ft injuria {Christopher son v. Bare, 11 Q. B. 477). Merely touching a person in order to engage his attention is no battery {Coward v. Baddeley, 28 L. J., Ex. 261). Wounding and Maiming. — If the violence be so severe as to wound, the damages will be greater than those awarded for a mere battery ; so, also, if the hurt amount to a mayhem (that is, a deprivation of a member serviceable for defence in fight) ; but other- wise the same rules of law apply to these injuries as ' to ordinary batteries. Art. 102. — General Liability for Assault, Battery, and other direct Bodily Injuries. Any person who commits an assault or battery, or otherwise directly injures an- other's body without lawful authority, com- mits a tort. Unintentional direct bodily injuries. — In addition to batteries of a hostile character, a man commits a trespass who quite unintentionally inflicts direct bodily harm upon another without lawful authority. Thus, where a tramway company is authorized by statute to run a steam tramcar on a public road, the statute must be taken to impose on the company a duty to see that the cars and tramway, and all necessary apparatus, are kept in proper condition for this purpose. And this extends not merely to their own line, but also to the lines of other companies OF DIRECT BODILY INJURIES. 299 over which they have running powers. If they fail to do so, and the tramway be in an improper con- dition, then, in running their cars on that tramway, they are doing that which they are not authorized to do by their Act. They are only authorized to be on the highway at all by their Act : and as regards the public, they can only justify using the tramway if they are doing what the Act allows them to do. If, therefore (apart from any question of negligence), a car runs on the defective tramway, and injures a passer-by, the company will be liable ; for it is a direct tres pass to the persxnL.without justification or excuse (Sadler v. South Staffordshire, §c. Tramways Co., 23 Q. B. Div. 17). Exceptions. — (1) Self-Defence. — A battery is justi- fiable if committed in self-defence. Such a plea is called a plea of " son assault__demesne.'' But, to support it, the battery^so justified must have been committed in actual defence, and not afterwards and in mere retaliation (Cochroft v. Smith, 11 Mod. 43). Neither does every common battery excuse a mayhem. As, if "A. strike B., B. cannot justify drawing his sword, and cutting off A.'s hand," unless there was a dangerous scuffle, and the mayhem was inflicted in self-preservation (Cook v. Beat, L. Raym. 177). (2) Defence of property. — A battery committed in defence of real or personal property is justifiable. Thus, if one forcibly enters my house, I may forcibly eject him ; but if he enters quietly, I must first request bin to leave. If after that he still refuse, I may use sufficient force to remove him, in resisting which he will be guilty of an assault 300 PARTICULAR TORTS. '.{Wlieeler v. Whiting, 9 C. 8f P. 265). On the other hand, where a railway traveller lost his ticket and could not produce it when required so to do in accordance with an indorsed condition, and refused to pay over again, it was held that this did not justify the company in forcibly ejecting him (Butler v. Manchester, fyc. By. Co., 21 Q. B. D. 207). So, a riotous customer may be removed from a shop after a request to leave. For the same reason, where the violence complained of consisted in the defendant attempting to take away certain rabbits from the plaintiff, which did not belong to him but to the defendant's master, and which the plaintiff had re- fused to give up, the defendant was held to have a good defence to an action of assault (Blades v. Jliggs, 10 O. B., N. S. 713 ; affirmed, 11 H. L. C. 621). (3) Correction of pupil. — A father or master may moderately chastise his son, pupil, or apprentice (Penn v. Ward, 2 Cr., M. 8f B. 338). (4) Other exceptions. — An assault may be com- mitted in order to stop a breach of the peace ; to arrest a felon, or one who (a felony having actually been committed) is reasonably suspected of it ; in arresting a person found committing a misdemeanor between the hours of 9 p.m. and 6 a.m. ; and in arresting a malicious trespasser, or vagrant under the Vagrancy Act. A churchwarden or beadle may eject a disturber of a congregation, and a master of a ship may assault and arrest an unruly passenger. So assaults and batteries, committed under legal process, are justifi- able ; but a constable ought not unnecessarily to hand- OF DIRECT 1S0DILY INJURIES. 301 cuff an unconvicted prisoner, and if he do so he will be liable to an action (Griffin v. Coleman, 28 L. J., Ex. 134) (a). And, generally, where force is justi- fiable, no greater force can be lawfully used than the occasion requires. Art. 103. — Institution of Criminal Proceedings endangers right of Action. Where any person unlawfully assaults or beats another, two justices of the peace, upon complaint of the party aggrieved, may hear and determine such offence, and if they deem the offence not to be proved, or find it to have been justified, or so trifling as not to merit any punishment, and shall accordingly dismiss the complaint, they must forthwith make out a certificate stating the fact of such dismissal, and deliver the same to the party charged ; and if any person shall have obtained such certificate, or having been con- victed shall have suffered the punishment inflicted,! he shall be released from all further or other proceedings, civil or criminal, for the same cause (24 & 25 Vict. c. 100, ss. 42—45). (a) The same rule as to notice, tender of amends, and limitation applies to batteries committed by constables in the execution of tbeir duty as in false imprisonment. 302 PARTICULAR TORTS. (1) As to what constitutes a " hearing," see Vaughton v. Brads/taw, 9 C. B., X. S. 103 ; and Reed v. Wutt, 24 Q. B. D. 669 ; 59 L. J., Q. B. 311 ; 62 L. T. 635. The fact that the accused has been ordered by the magistrate to enter into recognizances to keep the peace and to pay the recognizance fee, will not constitute a bar to an action {Hartley v. ffindmarsh, L. P., 1 C. P. 553). (2) The granting a certificate by a magistrate where the complaint is dismissed, is not merely dis- cretionary. A magistrate is bound, on proper appli- cation, to give the certificate mentioned in the section (Hancock v. Somes, 28 L. J., M. C. 196) ; and, if he refuses to do so, may be compelled by mandamus {Coster v. Hethcrington, 28 L. J., 31. C. 198). (3) The words " from all further or other proceed- ings against the defendant, eivil or criminal, for the same cause," include all proceedings against the defendant arising out of the same assault, whether taken by the prosecutor or by any other person (ex.gr., the complainant's husband) consequentially aggrieved thereby (Masjjcr and wife v. Brown, 1 C. P. Biv. 97). (4) If a person is charged with an assault, and the complaint is dismissed and a certificate given him, he cannot avail himself of the defence under the statute, when sued on for the tort, unless he specially pleads such defence (Harding v. King, 6 C. fy P. 427). OF DIRECT BODILY INJURIES. 303 Art. 104. — Amount of Damages. In assessing what amount of damages may be recovered for an assault, or battery, the time when, and the place in which, the as- sault took place should be taken into con- sideration. Thus, an assault committed in a public place calls for much higher damages than one committed where there are few to witness it. " It is a greater insult," remarks Bathurst, J., in TidUdge v. Wade (3 Wils. 19), "to be beaten upon the Koyal Exchange than in a private room." Art. 105. — Limitation. No action can be brought for assault or battery except within four years next after the cause of action arose. Sect. III. — Of Trespass to Land and Dispossession. Sub-sect. l.—OF TRESPASS QUARE CLASUM FREGIT. Art. 106. — Definition. Trespass quare clausum /regit is a trespass committed in respect of another man's land, by entry on the same without lawful autho- rity. It constitutes a tort without proof of actual damage. 304 PARTICULAR TORTS. (1) Acts of dominion. — Thus, driving nails into another's wall, or placing objects against it, are trespasses {Lawrence v. Obee, 1 Stark. 22 ; Gregory v. Piper, 9 B. fy C. 591) ; or fox hunting across land against the will of the owner [Paul v. SummerJiayes, 4 Q. B. JD. 9). (2) Trespass of cattle. — So, it is a trespass to allow one's cattle to stray on to another's land, unless there is contributory misconduct on his part, such as keep- ing in disrepair a hedge which he is bound by pre- | scription or otherwise to repair (Lee v. Riley, 34 L. J., ■ C. P. 212) ; or leaving his door open to a highway (Tillett v. Ward, 10 Q. B. D. 17). But, if no such duty to repair exists, the owner of cattle is liable for their trespasses even upon uninclosed land (Boyle v. Tamlin, 6 B. Sf C. 337), and for all naturally result- ing damage. But see Sanders v. Teape, 51 L. T. 263, as to trespasses by dogs. (3) Exceeding authority. — Where one has authority to use another's land for a particular purpose, any Iuser going beyond the authorized purpose is a tres- pass. Thus, where the lord of a manor entitled by custom to convey minerals gotten within the manor along subterranean passages under the plaintiff's land, brought thereunder minerals from mines gotten outside the manor, it was held to be a trespass (Eardley v. Lord Granville, 24 W. R. 528). (4) So, again, where a public highway runs across the lands of a landowner, the soil of which was vested in the owner, a member of the public who uses the road not merely in exercise of his right of way, but : in order to interrupt the landowner's sport, is guilty of trespass. For he is using the site of the road for OF TRESPASS TO LAND AND DISPOSSESSION. 305 a purpose not covered by his limited rig-lit of user (Harrison v. Duke of Rutland, (1893) 1 Q. B. 142; and see also Micklethicaite v. Vincent, 67 L. T. 225, Norfolk Broad case). Exceptions. — In the following cases a person has lawful authority to enter upon another's land : — (1) Retaking goods. — If one takes another's goods on to his land, the latter may enter and retake them (Patrick v. Coleriek, 3 31. # W. 485). (2) Cattle. — If cattle escape on to another's land through the non-repair of a hedge which the latter is bound to repair, the owner of the cattle may enter and drive them out (see Faldo v. Bidge, Yelv. 74). (3) Distraining for rent. — So a landlord may enter his tenant's house to distrain for rent, or an officer to serve a legal process (Keane v. Reynolds, 2 E. fy B. 748) ; but he may not break open the outer door of a house. (4) Reversioner inspecting premises. — A rever- sioner of lands may enter in order to see that no waste is being committed. (5) Escaping danger. — A trespass is justifiable if committed in order to escape some pressing danger, or in defence of goods. (6) Grantee of easement. — And the grantee of an easement may enter upon the servient tenement in order to do necessary repairs [Taylor v. Whitehead, 2 Doug. 745). (7) Public rights. — Land may be entered under the authority of a statute (Bearer v. Mayor, fyc. of Manchester, 26 L. J., Q. B. 311) ; or in exercise of a public right, as the right to enter an inn, provided u. x 306 PARTICULAR TORTS. there is accommodation (Dansey v. Richardson, 3 E. $B. 1859). (8) Liberum tenementum. — Lastly, land may be entered on the ground that it is the defendant's. This latter, known as the plea of liberum tenementum, is generally pleaded in order to try the title to lands. Art. 107. — Trespassers ab initio. (1) Whenever a person has authority given him by law to enter upon lands or tenements for any purpose, and lie goes beyond or abuses such authority, by doing that which he has no right to do, then, although the entry was lawful, he will be considered as a trespasser ab initio. (2) But where authority is not given by the law, but by the party, and abused, then the person abusing such authority is not a trespasser ab initio. (3) The abuse necessary to render a person a trespasser ab initio must be a misfeasance, and not a mere nonfeasance (Six Carpenters' case, 1 Sm. L. C. 132). Thus, in the above case, six carpenters entered an inn and were served with wine, for which they paid. Being afterwards at their request supplied with more wine, they refused to pay for it, and upon this it was OF TRESPASS TO LAND AND DISPOSSESSION. 307 sought to render them trespassers ab initio, but without success ; for although they had authority by law to enter (it being a public inn), yet the mere non-pay- ment, being a nonfeasance and not a misfeasance, | was not sufficient to render them trespassers. Art. 108. — Possession necessary to maintain an Action for Trespass. (1) In order to maintain an action of tres- pass, the plaintiff must be in the possession of the land ; for it is an injury to possession rather than to title. (2) The possession of land suffices to maintain an action of trespass against any person wrongfully entering upon it ; and if two persons are in possession of land, each asserting his right to it, then the person who has the title to it is to be considered in actual possession, and the other person is a mere trespasser (Jones v. Chapman, 2 Ex. 821). . (3) Where a person is in possession of land, the onus lies upon the prima facie tres- passer to show that he is entitled to enter (Asher v. Whitlock, L. B., 1 Q. B. 1). (1) Possession relates back to the right. — Thus a person entitled to the possession of lands or houses x2 308 PARTICULAR TORTS. cannot bring an action of trespass against a tres- passer until he is in actual possession of them (El/an v. Clark, 14 Q. B. 65). But when he has once entered, he acquires the actual possession, and such possession then dates hack to the time of the legal commencement of his right of entry, and he may therefore maintain actions against intermediate and then present trespassers [Anderson v. Radcliff, 29 L. J., Q. B. 128 ; Butcher v. Butcher, 7 B. 8f C. 402). (2) Surface and subsoil in different owners. — Where one parts with the right to the surface of land, retaining only the mines, he cannot maintain an action for trespass to the surface, because he is not in possession of it {Cox v. Mouseley, 5 C. B. 549) ; but he may for a trespass to the subsoil, as by digging holes, &c. {Cox v. Glue, 17 L. J., C. P. 162). So the owner of the surface cannot maintain trespass for a subterranean encroachment on the minerals {Reyse v. Powell, 22 L. J., Q. B. 305), unless the surface is disturbed thereby. (3) Highways, &c. — So, when one dedicates a highway to the public, or grants any other easement on land, possession of the soil is not thereby parted with, but only a right of way or other privilege granted {Goodtitle v. Alder, 1 Burr. 133 ; Northampton v. Ward, 1 Wils. 114). An action for trespasses com- mitted upon it, as, for instance, by throwing stones on to it, or erecting a bridge over it, may be therefore maintained by the grantor {Every v. Smith, 26 L. J., Ex. 345 ; and see Illust. 4, p. 304, sup.). OF TRESPASS TO LAND AND DISPOSSESSION. 309 Art. 109. — Trespasses by Joint Owners. Joint tenants, or tenants in common, can only sue one another in trespass for acts done by one inconsistent with the rights of the other (see Jacobs v. Senardj L. R., 5 H. L. 464). (1) Ordinary joint holders. — Among such acts may be mentioned the destruction of buildings (Cresswett v. Hedges, 31 L. J., Ex. 49), carrying off of soil (Wilkinson v. Hagarth, 12 Q. B. 837), and expelling the plaintiff from his occupation [Murray v. Hall, 7 C. B. 441). (2) Co-owners of mines. — But a tenant in common of a coal mine may get the coal, or license another to get it, not appropriating to himself more than his share of the proceeds; for a coal mine is useless unless worked (Job v. Potion, L. P., 20 Eg. 84). (3) Party- walls. — There is also one other important case of trespass between joint-owners, viz., that arising out of a party-wall. If one owner of the wall excludes the other owner entirely from his occupation of it (as, for instance, by destroying it, or building upon it), he thereby commits a trespass ; but if he pulls it down for the purpose of re-building it, he does not (Stcdnian v. Smith, 26 L. J., Q. B. 314 ; Cabitt v. Porter, 8 B. $ C. 257). 310 PARTICULAR TORTS. Art. 110. — Continuing Trespasses. Where a trespass is permanent and con- tinuing, the plaintiff may bring his action as for a continuing trespass, and claim damages for the continuation ; and where after one action the trespass is still continued, other actions may be brought until the trespass ceases [Bowtjer v. Cook, -4 C. B. 236). Art. 111. — Limitation. All actions for trespass must be commenced within six years next after the cause of action arose (21 Jac. 1, c. 16, s. 3). Distress damage feasant. — It is convenient to mention here a peculiar remedy of landowners for trespasses committed \>y cattle, viz., by seizing the animals whilst trespassing - , and detaining them until reasonable compensation is made (see Green v. Duckett, 11 Q. B. D. 275). This is not, however, available where animals are being actually tended ; in such case the person injured must bring his action. A somewhat analogous remedy is allowed in the case of animals feres natures reared by a particular person. In such cases the law, not recognizing any property OF TRESPASS TO LAND AND DISPOSSESSION. 311 in them, does not make their owner liable for their trespasses, hut any person injured may shoot or capture them while trespassing. Thus, I may kill pigeons coming upon my land, but I cannot sue the breeder of them (Ilannam v. Mockett, 2 B. ty C. 939, per Bay ley, J.). Sub-sect. 2.— OF DISPOSSESSION. Art. 112. — Definition. Dispossession or ouster consists of the ■wrongful withholding of the possession of land from the rightful owner. Specific remedy. — Before the Judicature Act, 1873, the remedy for this wrong was by an action of eject- ment for the actual recovery of the land, and since that statute it is by an action claiming the recovery of the land. Art. 113.— Onus of Proof of Title. The law presumes possession to be rightful, and therefore the claimant must recover on the strength of his own title, and not on the weakness of the defendant's {JSIartin v. Strachan, 5 T. R. 107). (1) Possession prima facie evidence of title. — Thus, mere possession is prima facie evidence of title until 312 PARTICULAR TORTS. the claimant makes out a better one (Street land v. Webber, 1 Ad. 8? E. 119). (2) Title of successful claimant need not be inde- feasible. — But where the claimant makes out a better title than the defendant, he may recover the lands, although such title may not be indefeasible. Thus, \ where one inclosed waste land, and died without having had twenty years' possession, the heir of his devisee was held entitled to recover it against a person who had entered upon it without any title (Asher v. Whitbch, L. R., 1 Q. B. 1). (3) Jus tertii. — Conversely, a man in possession who may not have an indefeasible title as against a third party, may yet have a better title than the actual claimant, and therefore he may set up the right of a third person to the lands, in order to dis- prove that of the claimant (Doe d. Carter v. Bernard, 13 Q. B. 945). But the claimant cannot do the same, for possession is, in general, a good title against all but the true owner (Asher v. Whitlock, sup. ; Richards v. Jenkins, 17 Q. B. D. 544). Exceptions. — (1) Landlord and tenant. — Where the relation of landlord and tenant exists between the claimant and defendant, the landlord need not prove his title, but only the expiration of the tenancy ; for a tenant cannot in general dispute his landlord's title (Belaney v. Fox, 26 L. J., C. P. 248), unless a defect in the title appears on the lease itself (Saund-ers v. Merryweather, 35 L. J., Ex. 115 ; Doe d. Knight v. Smyth, 4 M. 8f S. 347). But nevertheless he may show that his landlord's title has expired, by assign- ment, conveyance, or otherwise (Doc d. Marriott v. OF TRESPASS TO LAND AND DISPOSSESSION. 313 Edwards, 5 B. 8f Ad. 1065 ; Walton v. Waterhouse, 1 Wms. Saund. 418). The principle does not extend to the title of the party through whom the defendant claims prior to the demise or conveyance to him. Thus, where the claimant claims under a grant from A. in 1818, and the defendant under a grant from A. in 1824, the latter may show that A. had no legal estate to grant in 1818 {Doe d. Oliver v. Powell, 1 A. 8f E. 531 ; 3 A. 8f E. 188). (2) Servants and licensees. — The same principle is ' applicable to a licensee or servant, who is estopped from disputing the title of the person who licensed him {Doe d. Johnson v. Bui/tup, 3 A. 8f E. 188 ; Turner v. Doe, 9 M. 8f W. 645). Art. 114. — Character of Claimant's Estate. The claimant's title may be either legal or equitable (semble), provided that he is equit- ably better entitled to the possession than the defendant. Before the Judicature Act, 1873, it was a well- established rule that a plaintiff in ejectment must have the legal estate {Doe d. North v. Webber, 5 Scott, 189). It is submitted, however, that as all branches of the High Court now take cognizance of equitable rights, an equitable estate will be alone sufficient (see and consider principles of Walsh v. Lonsdale, L. R., 21 Ch. Die. 9). 314 PARTICULAR TORTS. Art. 115. — Limitation. No person can bring an action for the recovery of land or rent but within twelve years after the right to maintain such action shall have accrued to the claimant, or to the person through whom he claims (37 & 38 Vict. c. 57, s. 1 ; 3 & 4 Will. 4, c. 27, s. 2 ; Brassington v. Llewellyn, 27 L. J., Ex. 297). Exceptions. — (1) Disability. — Where claimants are under disability, by reason of infancy, coverture, or unsound mind, they must bring their action within six years after such disability has ceased : provided that no action shall be brought after thirty years from the accrual of the right (37 & 38 Vict. c. 57, ss. 3, 4, 5, and 3 & 4 Will. 4, c. 27, ss. 16, 17). (2) Acknowledgment of title. — When any person in possession of lands or rents gives to the person, or the agent of the person entitled to such lands or rents, an acknowledgment in writing, and signed, of the latter's title, then the right of such last-mentioned person accrues at, and not before, the date at which such acknowledgment was made, and the statute begins to run as from that date {Ley v. Peter, 27 L. J., Ex. 239). (3) Ecclesiastical corporations. — The period in the case of ecclesiastical and eleemosynary corporations is sixty years (3 & 4 Will. 4, c. 27, s. 29). OF TRESPASS TO LAND AND DISPOSSESSION. 315 Art. 116. — Commencement of Period of Limitation. The right to maintain ejectment accrues, (a) in the case of an estate Jii_possession, at the time of dispossession or discontinuance of possession of the profits or rent of lands, or of the death of the last rightful owner (3 & 4 Will. 4, c. 27, s. 3) ; and, (b) in respect of an estate in reversion or remainder or other future estate or interest, at the deter - mination of the particular estate. But a reversioner or remainderman must bring his action within twelve years from the time when the owner of the particular estate was dispossessed, or within six years from the time when he himself becomes entitled to; the possession, whichever of these periods- may be the longest (37 & 38 Vict. c. 57, s. 2). t (1) Discontinuance. — Discontinuance does not mean mere abandonment, but rather an abandonment by one followed by actual possession by another (see Smith v. Lloyd, 23 L. J., Ex. 194 ; Cannon v. Jlimington, 12 C. B. 1). Therefore in the case of mines, where they do not belong to the surface-owner, the period cannot commence to run until some one actually works them ; and even then it only com- mences to run qua the vein actually worked (see Low Moor Co. v. Stanley Co., 34 L. T., N. S. 186, 187; As/ttou v. Stock, 6 C/i. Div. 726). 316 PARTICULAR TORTS. (2) Continual assertion of claim. — No defendant is deemed to have been in possession of land merely from the fact of having entered upon it ; and, on the other hand, a continual assertion of claim preserves no right of action (3 & 4 Will. 4, c. 27, ss. 10 and 11). Therefore, a man must actually bring his action within the time limited ; for mere assertion of his title will not preserve his right of action after adverse possession for the statutory period. Section IV. — Of Trespass to and Conversion of Chattels. Art. 117. — General Rule. Every direct forcible injury, or act, dis- turbing the joossession f goods without the owner's consent, however slight or temporary the act may be, is a trespass, whether com- mitted by the defendant himself or by some animal belonging to him. And if the trespass amount to a deprivation of possession to such an extent as to be inconsistent with the rights of the owner (as by taking, using, or destroy- ing goods), it then becomes a wrongful con- version [Fouldes v. Willoughby, 8 M. 6f W. 540; Burroughs v. Bayne, 29 L. J., Ex. 185). (1) Destroying goods. — If one lawfully having goods of another for a particular purpose (e.g., to OF TRESPASS TO AND CONVERSION OF CHATTELS. 317 make a suit of clothes), destroys them, he is guilty of trespass and conversion {Cooper v. Willomat, 1 C. B. 692). (2) Excessive execution. — So again if a sheriff sells more goods than are reasonably sufficient to satisfy a writ of fieri facias, he will be liable for a conversion of those in excess {Aid red v. Constable, 6 Q. B. 381). (3) Injuring animals. — Beating the plaintiff's dogs is a trespass {Band v. Sexton, 3 T. R. 37) . And so it was held to be a trespass where the defendant's horse injured the plaintiff's mare, by biting and kicking her on the plaintiff" s land, without evidence of scienter {Ellis v. Loftus Iron Co., L. R., 10 C. P. 10 ; but see Sanders v. Teape, 51 L. T., N. 8. 263). And although wild animals are not generally the subject of property while unconfined, yet if A. starts a hare on the land of B., and kills it there, it is a trespass. For so long as the hare is on B.'s land it is his property {Sutton v. Moody, 1 Ld. Raym. 250). On similar grounds, rabbits, bred in a warren, are the property of the breeder so long as they stay on his land, and no longer {Hadesden v. Gryssel, Cro. Jac. 195). (4) Intention immaterial. — The innocence of the trespasser's intentions is immaterial. Thus, where the sister-in-law of A., immediately after his death, removed some of his jewelry from a drawer in the room in which he had died to a cupboard in another, in order to insure its safety, and the jewelry was subsequently stolen, it was held that the sister-in- law had been guilty of a trespass, in the absence of 318 PARTICULAR TORTS. proof that her interference was reasonably necessary, and she was consequently held liable for the loss {Kirk v. Gregory, 1 Ex. Biv. 55). But, on the other hand, the finder of a chattel does not commit a tort by merely warehousing or otherwise safeguarding it, so long as he is not unnecessarily officious (see per Blackburn, J., in Hottins v. Fowler, L. R.,7 H. L. at p. 766). (5) Again, where the owner of household fur- niture assigned it by bill of sale to the plaintiff, and subsequently employed the defendants (who were auctioneers) to sell it for her by auction, and they sold and delivered possession of it to the purchaser from them, they were held liable, although they knew nothing of the bill of sale [Consolidated Bank v. Cur- tis 8f Son, (1892) 1 Q. B. 495). It is important, however, to note that the tort there was the delivering of the furniture to the purchaser, and not the mere selling of it (see Lane. Waggon Co. v. Fitz- hugh, 6 H. 8f iV. 502 ; and per Brett, J., in Fowler v. Hollins, L. R., 7 Q. B. at p. 627). (6) Conversion by innocent purchaser. — So the purchaser of a chattel takes it, as a general rule, subject to what may turn out to be defects in the title (Sale of Groods Act, 1893, s. 21), unless it be a negotiable security (as to which see Glyn, Mills fy Co. v. E. 8f W. India Dock Co., 7 App. Cas. 591, and Sale of Goods Act, 1893, s. 25, sub-s. 2) ; or unless he buy it in market overt (Sale of Groods Act, 1893, s. 22), and not even then if it was stolen and the thief has been prosecuted to conviction (ibid., s. 24). But a bond fide purchaser gets a good title as against OF TRESPASS TO AND CONVERSION OF CHATTELS. 319 an execution creditor unless the goods are actually- seized (Sale of Goods Act, 1893, s. 26). Thus, in the leading case of Hollins v. Fowler (L. R.,7 H. L. 757), it was laid down that any person who, however innocently, obtains possession of the goods of a person who has been fraudulently deprived of them, and disposes of them, whether for his own benefit or that of any other person, is guilty of a conversion. (7) Where, however, the true owner has parted with a chattel to A. upon an actual contract, though there may be circumstances which enable that owner to set the contract aside for fraud, yet a bond fide purchaser from A. will obtain an indefeasible title (Sale of Goods Act, 1893, s. 23). The question will be, was there a contract between the real owner and A. ? { Gundy v. Lindsay, 3 App. Gas. 459). Thus, L. was a manufacturer in Ireland : Alfred Blenkarn, who occupied a room in a house looking into Wood Street, Cheapside, wrote to L., proposing a consider- able purchase of L.'s goods, and in his letters used this address, " 37, Wood Street, Cheapside," and signed the letters (without any initial for a Christian name) with a name so written that it appeared to be "Blenkiron & Co." There was a respectable firm of that name carrying on business in Wood Street. The goods were sent there, and the correspondence was all addressed to Blenkiron & Co., 37, Wood Street, and Blenkarn disposed of the goods to the defendant, a bona fide purchaser : Held, that no con- tract was ever made with Blenkarn, and that even a temporary property never passed to him, so that he never obtained such a temporary property which he 320 PARTICULAR TORTS. could pass to the defendant (Cundy v. Lindsay, sup.; and see also Hollins v. Fowler, L. M.,7 H. L. 757). (8) Prior to 1893, there was an exception to the rule that one whohad obtained property by a fraudulent contract could give a good title to a bona fide purchaser in market overt. This excep tion was, that where the original_owner of the goods was induced by false pretences to enter into the contract of sale with A., and the original owner afterwards If/ prosecuted A. to conviction, the property thereby |(| became ipso facto revested in the original owner by virtue of the statute 24 & 25 Vict. c. 96, s. 100, and the innocent purchaser from A., who would otherwise have a good title, was defeated by the over-riding statutory right of the original owner {Bentley v. Vilmont, 12 App. Cas. 471). The inequitable nature of that statute was, however, so strongly pointed out by Lord Watson in the last cited case, that parlia- ment has, by sect. 24, sub-sect. 2, of the Sale of Goods Act, 1893, reversed the law as above set forth. The passage in Lord "Watson's judgment, above referred to, was as follows: — "I do not think that, apart from statute law, a bond fide purchaser from one who has acquired the property of the goods by a contract of sale tainted with fraud stands in precisely the same relation to the original owner as a pur- chaser of stolen goods without notice of the theft, in market overt. In the latter case, the original owner, and the purchaser in open market, are to this extent in pari casu, that neither has done aught to mislead the other; whilst, in the former case, the original owner has intentionally given his fraudulent vendor an ex facie absolute and valid title OF TRESPASS TO AND CONVERSION OF CHATTELS. 321 to the goods, upon which purchasers without notice of fraud are entitled to rely. I have great difficulty in supposing that the legislature, as an incentive to the prosecution of crime, deliberately intended in the case where the property has been passed by the act of the original owner, to deprive the honest pur- chaser both of his goods and of his money ; but I have been unable to put a reasonable construction upon the language of sect. 100 which will avoid that inequitable result." Exceptions. — (1) Plaintiff's fault. — It is a good justification that the trespass was the result of the plaintiff's own negligent or wrongful act. Thus, if he place his horse and cart so as to obstruct my right of way, I may remove it, and use, if necessary, force for that purpose (Slater v. Swan®, 2 St. 892). So, if his goods or cattle trespassing on my land get injured, he has no remedy (Turner v. Hunt, Brownl. 220) ; unless I use an unreasonable amount of force, as, for instance, by chasing trespassing sheep with a mastiff dog (King v. Rose, 1 Freem. 347). So, if a man wrongfully takes my garment and embroiders it with gold, I may retake it ; and "if J. T. have a heap of corn, and J. D. will intermingle his corn with the corn of J. T., the latter shall have all the corn, because this was done by J. D. of his own wrong" (Coke, C.J., in Ward v. Eyre, 2 Bulstr. 323). And likewise, if one takes away my carriage, and has it painted anew without my authority, I am entitled to have the carriage without paying for the painting (Hiscox v. Greenwood, 4 Esp. 174). (2) Self-defence or defence of property. — A trespass 322 PARTICULAR TORTS. committed in self-defence, or defence of property, is justifiable. Thus, a dog chasing sheep or deer in a park, or rabbits in a warren, may be shot by the owner of the property in order to save them, but not otherwise (Wells v. Head, 4 C. fy P- 568). But a man cannot justify shooting a dog, on the ground that it was chasing animals fierce natures (Vere v. Lord Cairdor, 11 East, 569), unless it was chasing igame in a preserve, in which case it seems that it may be shot in order to preserve the game, but not I! after the game are out of danger (Bead v. Edwards, 34 L. J., C. P. 31). (3) In exercise of right. — A trespass committed in exercise of a man's own rights, is justifiable. Thus, seizing goods of another, under a lawful distress for rent or damage feasant, is lawful. (4) Legal authority. — Due process of law is a good justification, as for example, an execution under a writ of fieri facias. (5) Pledge. — So where goods are pledged, no action will lie against the pledgee for their detention, until tender of the debt has been made and refused (Yungmann v. Briesmann, 67 L. T. 642). (6) Market overt. — Goods bona fide purchased in market overt, become the absolute property of the purchaser, even although the vendor had no title to them. Every shop in the City of London is market overt for such things only as by the trade of the owner are put there for sale by him. But although the shop is market overt, a room at the back of it is not ; and although a shop may be market overt for goods sold by the owner, it seems that it is not so OF TRESPASS TO AND CONVERSION OF CHATTELS. 323 for goods sold in the shop to him (Hargrcare v. Spink, (1892) 1 Q. B. 25). Art. 118. — Possession necessary to Maintain an Action of Trespass. (1) To maintain an action merely for iresj)ass or conversion, the plaintiff must be the person in actual or constructive possession of the goods (Smith v. Miller, T. R. 480). (2) A legal right to possession gives con- structive possession (Balme v. Hutton, 9 Bing. "477). (3) Any possession however temporary is sufficient against a wrongdoer. (4) Although he cannot maintain an action for mere trespass, the person entitled to the reversion of goods may maintain an action for any permanent injury done to them {Tan- creel v. Allgood, 28 L. J., Ex. S62; Lancas. Waggon Co. v. Fitzhugh, 30 L. J., Ex. 231 ; Mears v. L. 6f S. W. R. Co., 11 C. B., N. S. 854). (1) Possession of bailee. — Where the person in temporary possession (as a carrier) delivers or sells my goods to the wrong person, then, as the immediate right to the possession of them becomes again vested in me, so the law immediately invests me with the y2 324 PARTICULAR TORTS. possession, and I can maintain an action for them against either the bailee or the purchaser {Cooper v. Wiliomat, 1 C. B. 672 ; Wyld v. Pickford, 8 M. Sf W. 443). (2) Sale of property under lien. — And so, when, by a sale of goods, the property in them has passed to the purchaser, subject to a mere lien for the price, the vendor will be liable for conversion if he resells and delivers them to another. But in such a case the plaintiff will only be entitled to recover the value of the goods, less the sum for which the defendant had a lien upon them {Page v. Edulgee, L. P., 1 C. P. 127 ; Martindale v. Smith, 1 Q. B. 389). (3) Action by administrator for injury committed before his appointment. — And, on the same principle, an administrator may maintain an action for trespass to goods, which trespass was committed previously to his grant of letters of administration {Thorpe v. Smallwood, 5 M. 8f G. 760). (4) Possession of trustee. — So a trustee, having the legal property, may sue in respect of goods, although the actual possession may be in his cestui que trust ( Wooderman v. Baldock, 8 Taunt. 676 ; Barker v. Furlong, (1891) 2 Ch, 172). (5) Possession of a mere finder. — In the leading case of Armory v. Delamirie (1 Sm. L. C. 315), it was held that the finder of a jewel could maintain an action against a jeweller to whom he had shown it, with the intention of selling it, and who had refused to return it to him ; for his possession gave him a good title against all the world except the true owner. (See also Elliott v. Kemp, 7 M. $ W. 312.) In short, OF TRESPASS TO AND CONVERSION OF CHATTELS. 325 a defendant cannot set up a, jus tertii against a person in actual possession. But where the possession of the plaintiff is not actual, but only constructive, the defendant may of course set up a jus tertii ; for con- . structive possession depends upon a good title, and if ' the title be bad there can be no constructive posses- sion (see Leake v. Loveday, 4 M. Sf G. 972 ; Richards v. Jenkins, 17 Q. B. D. 544), unless the third person waives or has never asserted his claim to the chattels (see Barker y. Furlong, (1891) 2 Ch, 172). (6.) Action by a tenant in common. — So one tenant , in common of a chattel has a special property in the other moiety sufficient to enable him to bring an action of trover against a wrongdoer, if the co-tenant had permitted him to have the custody of the chattel for a specific purpose (Nybury v. Handelaar, (1892) 2 Q. B. 202). Art. 119. — Trespasses by Joint Owners. A joint owner can only maintain trespass or conversion against his co-owner, when the latter has done some act inconsistent with the joint ownership of the plaintiff (2 Wins. Saund. 47 o ; and see Jacobs v. Seward, L. i?., 5 H. L. 464). (1) Thus, a complete destruction of the goods ' would be sufficient to sustain an action, for the plaintiff's interest must necessarily be injured thereby. 326 PARTICULAR TORTS. (2) But a mere sale of them by one joint owner would not, in general, be a conversion, for he could only sell his share in them. But if he sold them in market overt, so as to vest the whole property in the purchaser, it would be a conversion (Mayhew v. Her- riek, 7 C. B. 229). Art. 120. — Trespassers ab initio. If one, lawfully taking a chattel, but not absolutely, abuses or wastes it, he renders himself a trespasser ab initio (Oxley v. Watts, 1 T. R. 12). Thus, if one find a chattel, it is no trespass to keep it as against all the world except the rightful owner. But if one spoil or damage it, and the rightful owner eventually claim it, then the subsequent damage will revert back, and render the original taking unlawful (Ibid). But, as against the true owner, a man commits no conversion by keeping the goods until he has made due inquiries as to the right of the owner to them ( Vawjhan v. Watt, 6 M. 8f W. 492 ; and see Pillott v. Wilkinson, 34 L. J., Ex. 22). Art. 121. — Remedy by Recaption. When anyone has deprived another of his goods or chattels, the owner of the goods OF TRESPASS TO AND CONVERSION OF CHATTELS. 327 may lawfully reclaim and take them, wher- ever he happens to find them, so it be not in a riotous manner or attended with breach of • the peace. Remedies by action. — By the effect of the Judica- ture Acts, the distinction in form between actions has been finally abolished, so that the former actions of trespass (which lay for an interference with goods), 'trover (which lay for a wrongful conversion of goods), arid detinue (which lay for a wrongful detainer of goods) no longer exist, although that of replevin is, at all events in its inception, still different from all other actions. It will, therefore, be convenient to consider the ordinary form of action first, and the action of replevin by itself afterwards. Art. 122. — Remedy by ordinary Action. Wherever there has been a trespass to, or wrongful conversion or wrongful detention of a chattel, an action lies at the suit of the 1 person injured, for damages. And where the defendant still retains the chattel, the court, or a judge, has power to order that execution shall issue for return of the specific chattel detained, without giving the defendant the option of paying the assessed value instead ; and if the chattel cannot be found, then, 328 PARTICULAR TORTS. unless the court or judge shall otherwise order, the sheriff shall distrain the defendant by all his goods and chattels in his baili- wick till the defendant renders such chattel (R. S. C. Ord. 48, r. 1). Art. 123. — Remedy by Action of Replevin. The owner of goods distrained is entitled to have them returned upon giving such secu- rity as the law requires, to prosecute his suit, without delay, against the distrainer, and to return the goods if a return should be awarded (see 51 & 52 Vict. c. 43, ss. 134—137). The application for the replevying or return of the goods is made to the registrar of the county court of the district where the distress was made, who there- upon causes their return on the plaintiff's giving sufficient security. The action must be commenced within one month in the county court, or within one week in one of the superior courts ; but if the plain- tiff intends to take the latter course, it is also made a condition of the replevin bond that the rent or damage, in respect of which the distress was made, exceeds 20/., or else that he has good grounds for believing that the title to some corporeal or incorpo- real hereditaments, or to some toll, market, fair, or franchise, is in dispute (51 & 52 Yict. c. 43, s. 135). OF TRESPASS TO AND CONVERSION OF CHATTELS. 329 Art. 124. — Waiver of Tort. When a conversion consists of a wrongful sale of goods, the owner of them may w_aive thejtort, and sue the defendant for the_rjrice which he obtained for them, as mon ey recei ved by the __defenclant for the use ol the plaintiff (Lamine v. Dorrell, 2 L. Raym. 1216 ; Oughton v. Seppings, 1 B. Sf Ad. 241 ; Notley v. Buck, 8 B. $ C. 160). But, by waiving the tort, the plaintiff estops himself from re- covering any damages for it (Brewer v. Sparrow, 7 B. Sr C. 310). Art. 125. — Recovery of Stolen Goods. If any person who has stolen property, or obtained it by false pretences, is prosecuted to conviction by or on behalf of the owner, the property shall be restored to the owner, and the court before whom such person shall be tried shall have power to order restitution thereof (24 & 25 Vict. c. 96, s. 100). Therefore, even if the goods were sold by the thief in market overt, yet, by this section, they must be given up to the original owner. And where no order is made under the Act, yet the Act revests the 330 PARTICULAR TORTS. goods, and gives the owner a right of action for them (Scatter good v. Silvester, 19 L. J., Q. B. 447 ; and see also Bentley v. Vilmont, 12 App. Cas. 471, p. 320, swpm^-ewii uliilg Moyce v. Newington, 4 Q. B. D. 32). Art. 126. — Limitation. All actions for trespass to, or conversion, or detainer of goods and chattels, must be commenced withi n six year s next after the cause of action arose. Sect. Y. — Of Infringements of Trade Marks and Patent Eight and Copyright. Although the subject of trade marks, patent right, and copyright forms a separate group, practically standing apart from ordinary torts, and looked upon as a specialty to which a few practitioners wholly devote themselves, yet, strictly speaking, infringe- ments of these rights are torts, and, as such, demand some notice (necessarily very elementary), even in a small work like this. OF INFRINGEMENT OF TRADE MARKS, ETC. 331 Sub-sect. 1.— INFRINGEMENT OF TRADE MARKS AND TRADE NAMES (a). Art. 127. — Definition. (1) A trade mark is the symbol by which a man causes his goods or wares to be iden- tified and known in the market, and must now consist of one or more of the following essential particulars, namely : — (a) The name of an individual or firm printed, impressed, or woven in some fa »>~c particular and distinctive manner ; or (b) A written signature or copy of a written signature of an individual or * firm ; or (c) A distinctive device, mark, brand, heading, label, ticket, or an invented s° word or words, but not a single letter [Re Mitchell, 7 Ch. Div. 36), nor a com- bination of letters [Ex p. Stephens, 3 Ch. Div. 659); or (d) A word or words having no reference to the character or quality of the goods, and not being a geographical name (Be Van Duzer's Trade Marie, 34 C. D. 623, 639 ; Waterman v. Ay res, 39 Ch. Div. 29). (a) As to the distinction between trade marks and trade names, see Victualler^, &c. Co. v. Bingham (38 Ch. Div. 139). 332 PARTICULAR TORTS. (e) A combination of any one or more of the above with any letters, words, or figures, or combination of letters, words, or figures ; or (f) Any special and distinctive word or words, or combination of figures or letters used as a trade mark previously to the 13th August, 1875 (51 & 52 Vict. c. 50, s. 10). (2) A t rade nam e is the name under which an individual or firm sell their goods, or a name, not merely descriptive, given by an individual to an article which, although pre- viously known to exist, is new as an article of commerce, and which has become identi- fied in the market with the goods sold by that individual, and not merely with the article itself. Nature of the title to relief. — "Whether the relief in the case of infringements of trade mark is founded upon a right of property in the mark, or on fraudulent misrepresentation, has given rise to considerable con- flict of opinion. It would seem that the tendency of the older cases was to hold that the jurisdiction was founded on fraud ; but in the case of The Leather Cloth Co. v. American Leather Cloth Co. (33 L. J., Ch. 199), Lord Westbury said, "The true principle seems to be that the jurisdiction of the court in the protection given to trade marks is founded upon OF INFRINGEMENT OF TRADE MARKS, ETC. 333 property, " not of course property in the symbol itself, but in the sole application of the symbol to the parti- cular class of goods of which it constituted the trade mark ; and this view was followed in Millington v. Fox (3 M. 8f C. 338), and in Harrison v. Taylor (11 Jar., JY. S. 408.) On the other hand, in The Singer Machine Manufacturers v. Wilson (2 Ch. D. 434), the.cv Master of the Rolls scouted the idea of there being any property in the trade mark, and founded the jurisdiction wholly upon deception. This view was supported by the Court of Appeal (2 Ch. D. 451) ; but upon the case being brought before the House of Lords (3 App. Cas. 376), Lord Cairns said, "That there have been many cases in which a trade mark has been used, not merely improperly, but fraudu- lently, and that this fraudulent use has often been adverted to and made the ground of the decision, I do not doubt ; but I wish to state in the most distinct manner that, in my opinion, fraud is not necessary to be averred or proved in order to obtain protection for a trade mark. . . . The action of the court must depend upon the right of the plaintiff and the injury done to that right. What the motive of the defen- dant may be, the court has very imperfect means of knowing. If he was ignorant of the plaintiff's rights in the first instance, he is, as soon as he becomes acquainted with them, and perseveres in infringing upon them, as culpable as if he had originally known them." Lord Blackburn, however, was more guarded in his language, and said, "I prefer to say no more, than that I am not as yet prepared to assent, either to the position that there is a right of property in a name, 334 PARTICULAR TORTS. or, what seems to me nearly the same thing, to assent, to its full extent, to the proposition that it is not necessary to prove fraud." It is conceived, however, that, at common law, the question is, whether or not the assumption of the name or mark is or is not calculated to deceive the public. If it is, then, quite apart from an intention to deceive, the defendant will he restrained from continuing the use of the name ; for, having learned that it is deceptive in fact, perseverance in its use would become fraudu- lent in intent. A right to dama ges would, however, seem to necessitate proof of fraudulent intent before action brought. But apart from the common law right, there is possibly a statutory proprietary right (by re gistrat ion) in a trade marl;, which entitles the owner to restrain another person from selling goods with that mark on them, without reference to the question whether or no the goods are sold under such circumstances as to pass them off as the goods of the plaintiff (see per Cotton, L.J., in Mitchell v. Henry, 15 Ch. Div., at p. 193 ; and in Edwards v. Dennis, 30 lb., at p. 471 ; and conf. Wotherspoon v. Currie, L. R., 5 H. L. 508 ; and Eno v. Dunn, 15 App. Cas. 252). Art. 128. — General Mule as to Infringement of Trade Marks and Names. (1) Where a person has a definite mark or name, he is entitled to an injunction to restrain any other person from using any OF INFRINGEMENT OF TRADE MARKS, ETC. 335 mark or name so similar as either actually to have deceived, or such as obviously might deceive, the public, although there might be no intention to deceive (see per Lord Cairns in Singer Machine Manufacturers v. Wilson, sup., and pjer Vice-Chancellor Wood in Welch v. Knott, 4 K. ty J. 747; and Tussaud v. Tussaud, 62 L. T. 633). But (semble) he will j not be liable to an action for damages, or to ' render an account of his profits, unless he ! has acted f raud ulently (see per Lord Black- [ burn in Singer Manufacturers v. Wilson, sup.). { (2) The question whether a name apjplied to a patented or other article constitutes a trade name, indicating the manufacturer, or has come to be regarded as the proj^er designation of the article itself, and therefore open to the whole world, is a question of evidenc e in each particular case (see per Lord Cairns, L.C., Singer Machine Co. v. Wilson, 3 App. Cas., at p. 385). (1) Thus, in Harrison v. Taylor {sup.), the plain- tiff had adopted, as his trade mark, the figure of an ox, on the flank of which was printed the word " Durham," the names of the plaintiff being printed above the word "Durham," and the word " mustard" below. The defendants, who were also mustard manufacturers, used a similar ox, but without the 336 PARTICULAR TORTS. ?<^f- 1 - words "Durham" and "mustard," but having the name Taylor printed below. The fact of the plain- tiff's mark being well known throughout the trade having been proved, the court held, that the defen- dant's mark was so similar as to be likely to deceive intending purchasers ; and, although the defendant did not know that he had infringed the plaintiff's mark, an injunction was granted to restrain him from further using it. (2) So, in Cocks v. Chandler (L. R., 11 Eq. 446), where the inventor of a sauce sold it in wrappers, whereon it was called " The Original Reading Sauce," and the defendant brought out a sauce which he labelled " Chandler's Original Reading Sauce," he was restrained from doing so for the future (and see Bra/tarn v. Beachim, 7 Ch. Div. 848; Boulnois v. Peake, 13 Ch. Div. 513, n. ; Reddaway v. Bentham, 8fc. Co., (1892) 2 Q. B. 639 ; and Montgomery v. Thompson, (1891) App. Cas. 217). In the last-named case, the plaintiffs, who were brewers in the town of Stone, had for many years sold their ales under the name of "Stone Ale" by which it had become distinctively known. Under these circumstances, a rival brewer was restrained from selling his ale under the same name so as to deceive the public. (3) So, where A. introduces into the market an article which, though previously knowjn .to exist, is new as an article of commerce, and has acquired a reputation in the market by a name, not merely de- scriptive of the article, B. will not be permitted to isell a similar article under the same name (Br a ham v. Bustard, 1 BT.fy M. 449) . But where the inventor OF INFRINGEMENT OF TRADE MARKS, ETC. 337 of a new substance, or a new machine, lias given it a name, and having taken out a patent for his inven- tion, has, during the continuance of the patent, alone made and sold the substance or machine by that name, he is nevertheless not entitled to the exclusive use of that name after the expiration of the patent ; for the name has in such a case become merely the na me of the article, and not the badge of the r naker of it (Linoleum Co. v. Nairn, 7 Ch. Die. 834; Ckeavin v. Walker, 5 Ch. Div. 850 ; and see Singer Manu- facturing Co. v. Loog, 8 App. Ca. 15). (4) And, on the same ground, where a person has invented a game, and given it a name which is the only name by which it is known, such a name is not capable of being used as a trade mark ( Waterman v. Ayrcs, 39 Ch. Die. 29). (5) In He Andrew v. Basseti (33 L. J., Ch. 561), the plaintiffs had manufactured liquorice which they stamped with the word "Anatolia; " and it was held, that, though this was but the name of a place, yet a property in it could be acquired when it had been notoriously applied to a vendible commodity sold only by a particular firm (and see also Seigert v. Findlater, 7 Ch. Div. 801 ; Victualler*? 8fc. Co. v. Bing- ham, 38 Ch. Div. 139). (6) And so where the omnibuses of an omnibus proprietor were marked with particular figures and devices, an injunction was granted to restrain an opposition omnibus proprietor from adopting similar figures and devices (Knott v. Morgan, 2 Keen, 219) I* A h u. 338 PARTICULAR TORTS. Art. 129. — Rights of Assignee of Trade Mark. (1) Although a trader may have a property in a trade mark, sufficient to give him a right to exclude all others from using it, yet if his goods derive their increased value from the personal skill or ability of the adopter of the trade mark, he will not be allowed to assign it ; for that would be a fraud upon the public [Leather Cloth Co. v. American Leather Cloth Co., 1 H. $ M. 271 ; Richards v. Butcher, 62 L. T. 867). (2) But if the increased value of the goods is not dependent upon such personal merits, the trade mark is assignable {Bury v. Bedford, 33 L. J., Ch. 465) along with the goodwill of 4 the business to which it belongs, but not apart from that goodwill (-46 & 47 Vict. c. 57, s. 70). Art. 130. — Selling Articles under Vendor's otcn Name. Where a person sells an article with his [own name attached, and another person of the same name sells a like article with his (name attached, an injunction will not be granted to prevent such last-named person from doing so, unless it appears to the court I that he does it with the fraudulent intention I of palming his goods upon the public as OF INFRINGEMENT OF TRADE MARKS, ETC. 339 being those of the plaintiff (Burgess v. Burgess, 22 L. J., Ch. 675 ; SyJces v. SyJces, 3 B. Sf C. 541 ; Massam v. Thorleifs Food Co., 14 Ch. Div. 748 ; Turton v. Turton, 42 Ch. Div. 128). But if a fraudulent intention is proved, or appears by necessary implication, an injunction will be granted. For instance, where two persons, one named Day and the other Martin, set up a blacking shop, and advertised their goods as " Day and Martin's," Mr. Justice Chitty granted an injunction, on the ground that it was a plain attempt to hood- wink, the public into the belief that they were selling the blacking of the well-known manufacturers of blacking, for they might have called themselves Martin and Day. (See also Ace. Ins. Co. v. Ace., Disease, 8f Gen. Ins. Co., 54 L. J., Ch. 104 ; and see also Montgomery v. Thompson, (1891) App. Ca. 217 ; the Stone Ales Case.) ' Art. 131. — Registration of Trade Marks. No person can institute a suit to prevent the infringement of any trade marie, unless and until such mark is registered in the register of trade marks. (See Goodfellow v. Prince, 35 Ch. Div. 9.) Registration is prima i facie evidence of the right to the trade mark, and after five years is conclusive evidence I (46 & 47 ^Tci. c. 57 ss. 76, 77). But this z2 340 PARTICULAR TORTS. rule does not apply to actions for preventing- the infringement of a tra de nam e* or for fraudulently palming off goods as those of the plaintiff {Jay v. Ladler, 40 Ch. Div. 649). Sub-sect. 2.— INFRINGEMENT OF PATENT RIGHT. Art. 132. — Definition of Patent Right. A patent right is a privilege granted by the Crown (by letters patent) to the first inventor of any new manufacture or inven- tion, that he and his licensees shall have the sole right, during the term of fourteen years, of making and vending such manufacture or invention. It is, however, not intended in this work to give any account of the mode of getting a grant of letters patent. The following summary of the law is based, in fact, on the assumption that letters patent have been granted. Art. 133. — Factors necessary to a Valid Patent. Letters patent are void and of no effect if one or more of the five following conditions are absent, viz. : — (1) The subject of the patent must be a manufacture ; (2) It must be a new invention, which has OF INFRINGEMENT OF TRADE MARKS, ETC. 341 not been made public before the grant of protection ; (3) The p atente e or one of the patentees (where there are more than one) must b e the true and fir st inventor ; (4) The subject of the patent must be of gene. ral public u tility ; (5) A complet e specific ation (i.e., a suffi- cient description of the nature of the ^ invention and the mode of carrying it into effect, so as to enable ordinarily skilful persons to practise and use it at the end of the term for which the patent is granted) mus t be filed w ithin nine months frpm the date of the application for the patent (see 21 Jac. 1, c. 3; 15 & 16 Vict. c. 83, s. 27; 46 & 47 Vict. c. 57, ss. 5 etseq.). Art. 134. — What is a Manufacture. The word manufacture denotes either (a) a thing made which is useful for its own sake, and vendible as such, as a medicine, a stove, a telescope, and many others ; or (b) an engine or instrument, or some part of an engine or instrument, to be employed either *j in the making of some previously known 342 PARTICULAR TORTS. article, or some other useful purpose ; or (c) a new process to be carried on by known ' implements, or elements, acting upon known substances, and ultimately producing some other known substances, but in a cheaper or more expeditious manner, or of a better and more useful kind (Abbott, C.J., B. v. Wheeler, 2 B. Sf Al. 349 ; Crane v. Price, 4 M. $ G. 580). " Thus, a patent for the omission merely of one or / more of several parts of a process, whereby the I process may be more cheaply and expeditiously per- formed, is valid (Russell v. Cowley, 1 Wcbst. R. 464) ; or for a n improvemen t in one or more of several parts of a whole (Clarke v. Adie, 2 App. Ca. 315). Art. 135. — Newness of Manufacture. The prior knowledge of an invention to avoid a patent must be such knowledge as will enable the British public to perceive the very discovery and to carry the invention into practical use [Hill v. Evans, 4 D., F. 6fJ. 288 ; Anglo-American Brush Corporation v. King $ Co., (1892) App. Ca. 307). If there be great utility proved, novelty will be pre- sumed, until disproved [Crane v. Price, 1 Webs. Pat. Cas. 393 ; Young v. Fernie, 4 Giff. 577). OF INFRINGEMENT OF TRADE MARKS, ETC. !43 (1) Thus, a new combination of purely old ele-l ments is a novel invention, because the public could/ not have perceived the combination from the separate' parts [Harrison v. Anderston Co., 1 App. Ca. 574.) (2) On the other hand, the mere application of a known instrument to purposes so analogous to those . to which it has been previously applied as to at once I suggest the application, isjio_ground for a patent \ (Harwood v. G. N. JR. Co., 2 B. $ S. 194, and 11 II. L. C. 654). So, where there was a known invention for dressing cotton and linen yarns by machinery and a subsequent patent was procured for finishing yarns of wool and hair, the process being the same as in the first invention for cotton and linen, the patent was held void [Brook v. Aston, 32 L. J., Ch. 34l^smxTplrfent~Bott/e Co. v. Seymer, 5 C. B., N. S. 164; but compare Dangerfield v. Jones, 13 L. T., iV. 8. 142 ; Young v. Fcrnie, 4 Giff. 577 ; and Pirrie v. Yorkshire, §c. Co., 31 L. R. Ir. 3). (3) Again, where crinolines were made of whale- bone suspended by tapes, and an inventor claimed a patent for crinolines of exactly similar construction, with the single substitution of steel watch-springs for , whalebone, it was held that there was not sufficient novelty (and see Thorn v. Worthing Co., 6 Ch. I)iv. 415 «.). (4) If the article be new in this realm, but not new elsewhere, it is yet the subject for a valid patent ; for the object of letters patent is to give a species of premium for improving the manufactures, not / t. n so much of the world, as of the United Kingdom (Beard v. Egerton, 3 C. B. 97). (5) But not only must the invention be a novel : ? ■ 344 PARTICULAR TORTS. invention by the inventor, but it must also be a novelty to the British public. Thus, if before ob- taining provisional protection, the inventor has pub- lished a description of it, or if (without fraud) it has become known to the public, no subsequent patent can be granted for it (Patcrson v. Gas Light and Coke Co., 3 App. Ca. 239; and see also Harris v. Rotkwell, 35 C. D. 416 ; Otto v. Steel, 31 ib. 241 ; and Rolls v. Isaacs, 19 ib. 268.) Art. 136. — Meaning of true and first Inventor. If the invention lias been communicated to the patentee by a person in this country, he cannot claim to be the true and first inventor; but if he has acquired the knowledge of the invention abroad, and introduces it here, the law looks upon him as the true and first in- ventor (Leivis v. Marling, 10 B. Sf C. 22 ; Marsden v. Saville St. Co., 3 Ex. D. 203). And so if the invention has been discovered before, but kept secret by the inventor, it does not render the patent of a subsequent inventor of it invalid, for it is new so far as the public are concerned [Carpenter v. Smith, 1 Webst. R. 534, per Lord Abinger). Art. 137. — General Public Utility. The community at large must receive some benefit from the invention. OF INFRINGEMENT OF TRADE MARKS, ETC. 345 The reason of this condition is obvious, for an use-^ less invention not only does not merit the premium of a monopoly, but, what is worse, prevents other in- ventors from improving upon it. Thus, if one produces old articles in a new manner, such new way must, in some way, be superior to the old method, in order to support a patent ; for other- wise the old method is as good as the new ; but the Court construes such an invention very strictly, as it looks jealously at the claims of inventors seeking to limit the rights of the public in effecting a well- known object (Curtis v. Piatt, 3 Ch. D. 135, n.). As was said in a recent case, it must produce either a new and useful thing or result, or a new and useful method of producing an old thing or result (Lane Fox v. Kensington, $c. Co., (1892) 3 Ch. 424 ; and see Gadd v. Mayor of Manchester, 67 L. T. 569.) And if the article is produced at a cheaper rate by the new machine, or in a superior style, it is a good ground for a patent. Art. 138. — Specification. (1) If the specification (as the description is called) be ambiguous, insufficient, or mis- leading, it will render the patent void {Simp- son v. Holliday, L. R., 1 H. L. 315; Savory v. Price, Ry. 6f Mo. 1 ; and HinJcs v. Safety Lighting Co., 4 Ch. Div. 607), unless the ambiguity, variation, or imperfection be 346 PARTICULAR TORTS. slight and immaterial (Gibhs v. Cole, 3 P. Wms. 255). And it is essential that the in- vention described in the specification should be the same as that described in the pro- visional specification {Vickers v. Siddett, 15 App. Ca. 496). A patentee may, however, from time to time, obtain leave to amend his I specification, so long as such amendment does not make the invention substantially larger than, or substantially different from, the in- vention as originally specified. Such leave however, cannot be obtained after the com- mencement of any legal proceeding in relation to the patent (46 & 47 Vict. c. 57, s. 18). (2) If an objection be sustained against any one or more of several inventions in- cluded in the same patent, the entire patent is void. Provided that a patentee may obtain leave from the Patent Office, before the commencement of any legal proceeding, to disclaim any invention or part of an in- vention included in the specification ; and may, even after the commencement of any legal proceeding, obtain leave to make such disclaimer from the court or the judge before which or whom such proceeding may be pending, subject to such terms as such court or judge may impose as to costs or otherwise (46 & 47 Vict. c. 57, ss. 18, 19). OF INFRINGEMENT OF TRADE MARKS, ETC. 347 Art. 139. — What constitutes Infringement. A person infringes a patent right by using, exercising, or vending the invention within this realm. (1) Thus, the captain of a vessel, fitted with pumps, which were an infringement of the plaintiff's patent, was held liable, although he was not owner of the vessel {Adair v. Young, 12 Ch. Div. 13). (2) So, where a patent had been granted in Eng- land for a new process for producing more cheaply a product previously known, the importation of that product made abroad by the patented process was held to be an infringement ( Van Heijden v. JYeustadt, 14 Ch. Die. 230). Exceptions. — 1. It would seem that when articles, which are the subject of a patent, are made without a licence from tbe patentee, simply for the purpose of bon a fid e experiments, those who make them are not liable, unless they are made and us ed for p rofit, or with the object of obtaining profit, however limited (Frearson v. Loe, 9 Ch, Div. 48). 2. Where a specification has been amended by dis- claimer or otherwise, no damages will be given in any action for infringement committed before the amendment was made, unless the patentee establishes to the satisfaction of the court that his original claim was framed in good faith and with reasonable skill (46 & 47 Yict. c. 57, s. 20). Such is a very slight sketch of the elements of the law relating to patents. Let us now pass on to the law of copyright. 348 PARTICULAR TORTS. Sub-sect. Z.—OF INFRINGEMENTS OF COPYRIGHT. Art. 140. — Definition and Extent of Copyright. (1) Copyright is the exclusive right which an author possesses of multiplying copies of his own work. (2) The copyright in a book published in the author's lifetime belongs to the author and his assigns during the life of the author, and seven years after his death. If, how- ever, that period expires before the end of forty-two years from the first publication of sucii book, the copyright in that case endures for such period of forty-two years (5 & 6 Vict. c. 45, s. 3). (3) The copyright in a work published subsequently to the author's death, belongs to the proprietor of the manuscript for the term of fort y-two years from the first publi- cation (Ibid.). (4) The proprietor of a copyright cannot sue or proceed for any infringement of his copyright before makingan entry of it at Stationers' Hall (Ibid. sect. 11). Exception. Immoral works. — There is no copyright in libellous, fraudulent, or immoral works (Stockdale v. Onwliyn, 5 B. 8f C. 173 ; Sou they v. Sherwood, 2 Mer. 435). OF INFRINGEMENT OF TRADE MARKS, ETC. 349 Thus, where a work professes to be the work of a person other than the real author, with the object of inducing the public to pay a higher price for it, no copyright can be claimed in it ( Wright v. Tallis, 1 C. B. 893). Art. 141. — Meaning of Book. The word book includes every volume, part and division of a volume, pamphlet, sheet of letter-press, sheet of music, chart, map, or plan separately published (sect. 2 ; and see Henderson v. Maxwell, 5 Ch. Dlv. 892). (1) Thus, there may be copyright in the wood engravings of a work, for they are part of the volume (Bogue v. Houhton, 5 Be G. Sf Sm. 267). (2) An illustrated catalogue of articles of furniture published as an advertisement by upholsterers, and not for sale, may be the subject of copyright (Maple 8f Co. v. Junior Army 8f Navy Stores, 21 Ch. B. 369). So may a telegraphic code (Ager v. P. fy 0. Co., 26 Ch. Biv. 637). (3) So also copyright may subsist in part of a work, although the rest may not be entitled to it (Low v. Ward, L. R., 6 Eq. 415). (4) Again, a newspaper is within the Copyright Act, and requires registration in order to give the \ proprietor copyright in its contents; and, in order that the proprietor of the paper may become the proprietor of the copyright in an article, he must '650 PARTICULAR TORTS. show that he paid the writer for the copyright {Walter v. Howe, 17 Ch. D. 708; conf. Cede v. Devon, fyc. Co., 40 C. D. 500 ; and Trade Auxiliary Co. v. Middlesbrough, 8fc. Association, ih. 425). (5) But it seems that copyright is not claimable in ■ a single word, as the title of a magazine; "Belgravia," for instance {Maxwell v. Hogg, L. R., 2 Ch. 307) ; nor, U as a general rule, in the title of a hook {Dicks v. Yates, 18 Ch. D. 76 ; Schove v. Schminche, 34 W. R. 700). It seems, however, clear that the publication of a magazine or book under the title of another existing one might be a CQmmon law fraud. !(6) Directions on a barometer face have been held not to be a book {Davis v. Comitti, 54 L. J., Ch. 419). Art. 142. — What constitutes Infringement of Copyright. (1) Copyright is infringed by publishing \ in this kingdom an unauthorized edition of a , work in which copyright exists, or by intro- i ducing here a foreign reprint of such a work, or while pretending to publish an original work, illegitimately appropriating the fruits of another author's labour (see per James, L. J., Dicks v. Yates, 18 Ch. Dlv. 90). (2) In the last case the Act that secures copyright to authors, guards against the piracy of the words and sentiments, but doesu OF INFRINGEMENT OF TRADE MARKS, ETC. 351 not prohibit writing on the same subject (per Mansfield, C. J., Sat/re v. Moore, 1 East, 361). (1) Unauthorized publications. — Thus, any person causing a hook to be printed for sale or exportation, without the written consent of the proprietor of the copyright ; or who ^imports for sale such unlawfully printed book ; or with a guilty knowledge sells, publishes, or exposes for sale or hire, or has in his possession for sale or hire, any such book without the consent of the proprietor, is liable to an action »at the suit of the proprietor, to be brought within twelve calendar months. And an injunction may be also obtained to restrain the further infringement. (2) An injunction may even be granted to restrain a person from printing the unpublished works of another {Prince Albert v. Strange, 1 Mac. 8f Gor. 25). And an action at law may also be maintained for the same cause (Ma //all v. Higby, 6 L. T., JST. S. 362). (3) So, an injunction will also be granted, if a person, under colour of writing a review, copies out so large and important a portion of the work as to interfere with the sale of it : but a reasonable amount of quotation, in order to review the work properly, is allowable (Campbell v. Scott, 11 Sim. 31 ; Bell v. Walker, 1 Bro. Ch, C. 450). (4) Unauthorized importations of foreign reprints. — Besides the remedy by action and injunction, there is also a quasi-criminal remedy in the case of imported piracies, by means of penalties. These do not take away the remedy by action, but are cumulative (sect. 17). 352 PARTICULAR TORTS. (5) Passing off another's work as one's own. — Where the infringement consists, not of a^eprint, but of what maybe called literary petty larceny — the stealing of another man's labour, and the palming of it off as one's own — "there must be such a similitude as to make it probable and reasonable to suppose that one is a transcript, and nothing more than a tran- script. In the case of prints, no doubt different men may take engravings from the same picture. The same principle holds with regard to charts. "Whoever has it in his intention to publish a chart, may take advantage of all prior publications. There is no monopoly here, any more than in other instances ; but upon any question of this kind, the jury will decide whether it be a servile imitation or not. If an erroneous chart be made, Grod forbid it should not be corrected, even in a small degree, so that it thereby becomes more serviceable and useful" (per Mansfield, C.J., Sai/re v. Moore, sup.). (6) And even where a great part of the plaintiff's work has been taken into the defendant's, it is no infringement, so long as the defendant has so care- fully revised and corrected it, as to produce an original result (Spiers v. Browne, 6 TV. R. 352 ; and ' consider Dicks v. Brooks, 15 Ch. Biv. 22) ; or, if it was fairly done with a view of compiling a useful book for the benefit of the public, upon which there has been a totally new arrangement of such matter 1 (per Ellenborough, O.J., Car// v. Kearsley, 4 Esp. 170). And the part taken by the defendant must be substantial and material to enable the plaintiff to sustain an action (Chattcrton v. Cave, 3 App. Ca. 483). OF INFRINGEMENT OF TRADE MARKS, ETC. 353 /il/H*A+ (7) What is piracy of music. — With respect to music, if the whole air be taken it is a piracy, although set to a different accompaniment, or even with variations ; for the mere adaptation of the air, either by changing it to a dance, or by transferring it from one instrument to another, does not, even to common apprehensions, alter the original subject. The ear tells you that it is the same substantially ; the piracy is, where the appropriated music, though adapted to a different purpose from that of the original, may still be recognized by the ear (D'Almaine v. Boosey, 1 Y. fy C. Ex. 288, per Lord Lyndhurst). But, on the other hand, where one composed and published an opera in full score, and after his death B. arranged the whole opera for the piano, it was- held that this was an independent musical composi- tion and no piracy {Wood v. Boosey, L. R., 3 Q. B. {Ex. Ch.) 223). (8) Plays founded on novels. — To produce the I incidents of a novel in the form of a play, is theo- retically no infringement of copyright (see Reade v. Conquest, 30 L. J., C. P. 209 ; Tinsley v. Lacy, 32 L. J., Ch. 535; Reade v. Lacy, 30 L. J., Ch. 655). But practically it is where the play would be an infringement, if published as a book. For before a play can be acted a copy of it must be sent to the Lord Chamberlain, and other copies must be issued for the use of the actors, and these copies constitute "books" within the Law of Copyright. Thus, in the recent case of Warm v. Seebohm (39 Ch. Div. 73), the defendant had dramatised the novel " Little Lord Fauntleroy," and caused his play to be per- / ^*^ A A 354 PARTICULAR TORTS. formed. The infringement of copyright complained of was that, for the purpose of producing the play, the defendant made four copies, one for the Lord Chamberlain and three for the use of the performers. Very considerable passages in the play were extracted almost verbatim from the novel. Held, that the plain- tiffs were entitled to an injunction restraining the defendant from multiplying copies of the play con- • taining passages from the plaintiff's book ; and also that all such passages in the four existing copies must be cancelled. Other copyrights. — Besides the copyright in literary works, there is also a copyright in various other pro- ductions ; but in a book like the present, space will not permit me to do anything more than sketch out the main heads of the rights of individuals in respect of these productions. Oral lectures. — The publication of oral lectures, except those delivered in colleges, &c, is prohibited by 5 & 6 Will. 4, c. 65, without the author's con- sent ; but in order to have the benefit of this act, the \ lecturer must give previous notice to two justices of the peace (see Nicols v. Pitman, 26 Ch. Div. 374). Right of representation of dramatic and musical works. — The right of publicly representing dramatic and musical compositions, first produced in this realm {Boucicault v. Chatterton, 5 Ch. Div. 267), is vested, in the author or composer, and his assigns, for the same period as in literary compositions, by 5 & 6 Vict. c. 45, s. 20, which also imposes penalties upon any person performing them without the written leave of the author or composer. These penalties \ OF INFRINGEMENT OF TRADE MARKS, ETC. 355 are not cumulative, ]^d ^Jj^ ajf p^ n ti* va As to what is a public representation, see Wall v. Taylor (11 Q. B. D. 102), and Buck v. Bates (13 Q. B. D. 843). Assignment of copyright does not include right of f / representation. — I may mention, that the assignment L of the copyright of a book containing dramatic or musical compositions is only an assignment of the right of multiplyiug copies of it, and not of the right of representing it (sect. 22), unless at the time of registering the assignment the same is expressly stated. But a mere assignment of the right of representation does not seem to require registration {Lacy v. Rhys, 22 L. J., Q. B. 157). Similarly, the publication, in this country, of a dramatic piece, or musical composition, as a book, before it has been publicly represented or performed, does not deprive the author or his assignee of the exclusive right of performing or representing it {Chappell v. Boosey, 2 Ch. D. 232). Engravings. — En gravings are protecte d by the statutes 8 Geo. 2, c. 13 ; 7 Geo. 3, c. 38 ; and 17 Geo. 3, c. 57. Sculpture. — Sculptures and models by 38 Geo. 3, c. 71, and 54 Geo. 3, c. 56. "~-- k Designs. — Useful and ornamental designs are pro- tected by " The P^h^TWigrig, ^ T.^_M^ks Act, 1883. " Works of art. — Paintings, drawings, and photo- graphsJyyJ25 & 26 Vict. *cT68^ (As to the latter, see NotiageV. Jackson, 11 Q. B. D. 627.) But apart from copyright, where a person has been employed to copy aa2 356 PARTICULAR TORTS. a drawing, or to take a photograph for another, it is an abuse of confidence for him to publish copies of such drawing or photo, and he will be restrained from doing so (Tuck v. Priester, 19 Q. B. Div. 629 ; and Polla rd v. P hoto, 8fc, Co., 40 Ch. Div. 345). Thus, in the last-mentioned case, a photographer, who had taken a "negative" of a lady to supply her with copies for money, was restrained from selling or exhibiting copies, both on the ground that there was an implied contract not to use the negative for that purpose, and also on the ground that such sale or exhibition was a breach of confidence. FINIS. INDEX. ABATEMENT, of nuisance, 277. not proper remedy to prevent prospective nuisance, 278. not proper remedy of commoner in respect of overstocked warren, ib. after failure to obtain a mandatory injunction, ib. ABROAD, liability for torts committed, 49. ACCIDENT, if inevitable, not actionable, 15 et seq., and see Negligence, and Nuisance. actionable, if preventible, ib. ■when occurrence of, prima facie evidence of negligence, 210. ACT OF GOD excuses what would be otherwise actionable, 19, 21. ACT OF THIED PARTY, 21. where damage partly caused by, 25. ADOPTION. See Ratification. ADVERTISEMENTS, criticism of, privileged, 151. AD VICE, confidential, a privileged communication, 147. AGGRAVATION. See Damages. AIR, when action lies for obstruction of, 250, 256. AMBASSADORS not liable for torts, 52. ANIMALS. See Ferocious Animals. injuries done to, 317. trespasses of, 304, 317. injuries to, while trespassing, when tortious, 322. killing, in self-defence, justifiable, ib. 358 INDEX. ARREST. See IMPRISONMENT. ASSAULT AND BATTERY, master responsible for, if committed by servant within the general scope of authority, 61, 63, 64, 65. damages for, 303. aggravation of damages for, 110. mitigation of damages for, ib. causing death, 296. definition of assault, ib. menacing, ib. ability to do harm, necessary, ib. attempt necessary, 297. committed in sport, not actionable, ib. definition of battery, ib. may be occasioned by anything set in motion by defendant, ib. battery, voluntarily suffered, not actionable, ib. mayhem, 298. intention to commit, immaterial, ib. injuries inflicted through defective tramway, ib. caused by inevitable accident, excusable, ib. general immunity from, ib. committed in self-defence, justifiable, 299. committed in inere retaliation, not justifiable, ib. committed in defence of property, justifiable, ib. of pupil for sake of correction, justifiable, 300. in order to stop breach of the peace, justifiable, ib. in order to arrest night offender, felon, malicious trespasser, or vagrant, justifiable, ib. in order to expel disturber of congregation, justifiable, ib. by master of ship, ib. by officer of law, ib. unnecessary handcuffing of prisoner is, ib. proceedings before justices release civil proceedings, 301. limitation of actions for, 303. ATTORNEY, slandering an, 158. BAIL, arrest of principal by his obligor, lawful, 283. BAILEE. See Trespass (2). BAILMENT, remarks as to contract of, 48. BAILOR, may bring trespass against purchaser, whero bailee has sold goods, 323. INDEX. 359 BANKRUPTCY, effect of, on the right to sue or the liability to be sued for tort, 130. BATTERY. See Assault and Battery. BODILY INJURIES. See Assault. caused by nuisances. See Nuisance. caused by negligence. See Negligence. BOOKS, copyright in. See Copyright. BRICK-BURNING, near highway, a public nuisance, 222. CAMPBELL'S (LORD) ACT, 214 et seq. gives right of action to relatives of persons killed through another's default, ib. who may sue in case executor does not, 215. when action maintainable, 214. for whose benefit maintainable, 215, 216. jury must apportion damages, ib. action can only be maintained in cases where deceased him- self could have sued had he lived, 216. plaintiffs must have suffered some pecuniary loss attributable to the relationship, ib. not maintainable when deceased received compensation before death, 217. death must be caused by the act for which compensation claimed, ib. action must be brought within twelve months, ib. effect of deceased having insured his life, ib. CANDIDATE for office, character of, privileged communication, 148. CARRIER liable for misfeasance to a person with whom he has not contracted, 47. CATTLE. See Trespass. when injury is done to, by dog, scienter need not be shown, 204. word includes horses, ib. CAVEAT EMPTOR, 194. CHARACTER, fraudulent, when actionable, 197. of servant, when a privileged communication, 148. 360 INDEX. CHAEACTEBr-con&nuetZ. of candidate for office, given to a voter or elector, a privi- leged communication, 148. evidence of plaintiff's bad or irritating character in mitiga- tion of damages in defamation, 108. of daughter's loose character in mitigation of damages in seduction, ib. CHATTELS, trespass to, and conversion of. See Trespass; and see Wrongful Conversion. CHILDREN of deceased parent, action by. See Campbell's (Lord) Act. CHURCH BELLS, injunction to restrain ringing of, 117- CISTERN, injuries caused by defective, 19, 233. CLERGYMAN, imputing unchastity to a beneficed, is action- able per se, 158. COMMON, definition of, 267. disturbance of, ib. by putting on uncommonable beasts, ib. by surcharging, 268. by enclosing, ib. how far lord may enclose, 269. Commons Law Amendment Act, 1893, prevents further inclosures except by leave of Board, of Agriculture, 270. COMMON EMPLOYMENT, meaning of. See Master and Servant. CONCEALMENT, when fraudulent, 194. CONFIDENCE. See Misfeasance. CONSEQUENTIAL DAMAGES. See Damages. CONSTABLE, cannot, in general, arrest without a warrant, 283. must have warrant with him, ib. may arrest without warrant, on reasonable suspicion of felony, ib. for breach of peace, even after affray over, in order to take offender before a justice, 284. for night offences, ib. for malicious injuries, ib. INDEX. 361 CONSTABLE— continued. may arrest without warrant — continued. for offering goods for pawn suspiciously, 284. for acts of vagrancy, 285. for brawling in church, ib. local acts empowering constables, 286. protected if acting ministerially for a court having juris- diction {or prima facie jurisdiction in certain cases), 290. special protection of, in executing warrants of justices with- out jurisdiction, 293. limitation of actions against, 294. notice of action to, ib. power of, appointed by municipal corporations, ib. payment of money into court by, 295. venue in actions against, local, ib. CONTINUING TORTS, commencement of period of limitation in, 94. fresh action may be brought for, until they are stopped, 106 et seq. CONTRACT, torts arising out of, 39 et seq. who may be sued for torts arising out of, 55. negligence of professional men, 39. waste, 40. negligence of market owner, ib. negligence of dock company, 41. privity necessary in order to recover for torts arising out of, ib. master cannot sue railway company who have booked servant, for injury done to him, 42. aliter, if master took the ticket, 45. aliter, if servant injured by a company other than that which booked him, 46. third party injured by a negligently constructed machine or a negligently given valuation or character, cannot sue the maker, 42, 44. aliter, as to deleterious quack medicines, 43. aliter, where fraud, ib. et seq. damages in torts arising out of, 112. waiver of tort and action on implied, 329. CONTRACTOR, employer not in general liable for nuisance committed by, or negbgence of, 57 et seq. CONTRIBUTION, how far a right to, between tort-feasors, 113 362 INDEX. CONTRIBUTORY NEGLIGENCE. See Negligence. CONVERSION. See Wrongful Conversion. COPYRIGHT, how literary propei'ty can bo invaded, 348. definition of copyright, ib. how copyright acquired, ib. none in immoral or fraudulent works, ib. meaning of book, 349. in part of a book and not in residue, ib. none in a mere word, 350. none generally in a title, ib. what is piracy of, ib. carefully revising and correcting old matter no infringe- ment, 352. new ai'rangement of old work no infringement, ib. what is piracy of, in music, 353. plays founded on novels, ib. remedies for infringement of, 351. injunction to prevent publication of unpublished manu- script, ib. piracy by review, ib. in oral lectures, 353. right of representing dramatic and musical compositions not included in assignment of copyright of, 354. in engravings, ib. in sculpture, ib. in designs, ib. in works of art, ib. CORPORATION, liable for torts, 52, 53. COUNSEL, opinion of, no excuse for malicious prosecution, 1G6. statements of, privileged communications, 144. CRIME. See Defamation. CRITICISM. See Defamation. DAMAGE, without wrongful act, not actionable, 7. when necessary, ib. if it would have happened even if the wrongful act had not been done, may still be actionable, 25 et seq. INDEX. 363 DAMAGE FEASANT, cattle may be distrained -when trespassing, 310. unless tended at time, ib. DAMAGES, measure of, in actions of tort, 96 et seq. (1) For injuries to person and reputation, for false imprisonment, 98. for seduction, ib. for assault and battery, ib. for defamation, ib. mistake or ill-feeling of jury, 97. too small, ib. aggravation and mitigation of, 107. for seduction, 108. for defamation, ib. et seq. for false imprisonment, 110. for battery, ib. consequential damages, 100 et seq. loss of business, 101. medical expenses, ib. loss of property through mental agitation, ib. under Lord Campbell's Act, 102. injury to trade, 103. prospective damages may be given, 105. continuing torts, 106. under Employers' Liability Act, 85. (2) For injuries to property, 99 et seq. compensatory in character, ib. injury to horse, ib. for wrongful conversion, 100. trespass, ib. aggravation and mitigation, 107 et seq. insolent trespass, 110. wrongful seizure, 111. causing suspicion of insolvency, ib. where plaintiff only bailee, 99. consequential damages, 100. must not be too remote, ib. hiring substitute in place of a chattel, 103. trespass, ib. infectious disease, 104. collisions at sea, ib. flooding lands, ib. having been obliged to pay damages to third party, 105. presumption of amount of damage against a wrongdoer, 111. in torts founded on contract, 112. joint wrongdoers are jointly and severally liable for, 113. 364 INDEX. DAMNUM, definition of, 7. following injuria must not be too'remote, 23. DAMNUM ABSQUE INJURIA, 7 et seq. DANGER, trespass under the influence of a pressing, 15. DANGEROUS substances brought on to land must be kept at peril of bringer, 18—22. animals. See Ferocious Animals. works, principal liable for contractor's defaults, 58, 60. DAUGHTER, action for seduction of. See Seduction. DEATH, effect of, on the right to sue or liability to be sued for tort, 129 et seq. DECEASED PERSON. See Campbell's (Loed) Act. DECEIT. See Fraud. DEFAMATION, 135 et seq. oral or written, ib. definition, ib. when actionable, 135. factors necessary to sustain an action for, ib. if truth be pleaded it must be strictly proved, 136 n. disparagement, what is, 137. construction of words in natural sense, ib. ironical words, 138 et seq. list of County Court judgments containing plaintiff's name may or may not be defamatory, 140. waxen effigy in chamber of horrors, ib. publication, ib. by telegram or postcard addressed to person Libelled, 141 . by dictating to clerk, ib. by newsvendors, ib. to or by husband or wife, ib. intention to publish immaterial where negligence, 140. functions of court and jury as to publication, 141. malice, 142. privileged communications, ib. privilege may be absolute or only prima facie, 143. functions of court and jury, ib. parliamentary proceedings, ib. judicial proceedings, 144. speeches at county and town councils, &c, ib. INDEX. 365 DEFAMATION— continued. privileged communications — continued, bond fide complaints, 147. reports of public meetings, 146. reports of legal proceedings, 145. reports of quasi- judicial proceedings, 146. confidential advice, 147. character of servant, 148. character of candidate, ib. character of public officer, ib. statement made to a person having a corresponding interest, 148, 149. criticism, 150. criticism of public men, 151. sending privileged communication by telegram or post- card, 149. limitation of actions for, 162. damages. See DAMAGES, actual damage, when necessary, 152 et seq. when too remote, 153. damage caused by plaintiff himself repeating the slander, 154. imputation of unchastity, 154, 155. imputation of crime actual damage of itself, 156. imputation of mere breach of trust aliter, 157. imputation of unfitness for society, ib. imputation of unfitness for business, ib. repetition of defamation, 159. printing of, 160. communication by third party, ib. newspaper proprietors protected, 161. injunction to restrain, 122, 123. DEFECT. See Fraud. DEFENCE. See Assault. DESIGNS, copyright in. See Copyright. DETINUE, action of, 327. judge may order return of specific goods in, ib. DISABILITY to sue or to be sued for tort, 51 et seq. See Limitation. DISPOSSESSION, definition of, 311. plaintiff must rely on strength of his own title, ib. 366 INDEX. DISPOSSESSION— continued. mere possession evidence of title for defendant, 311. plaintiff's title need not be indefeasible, 312. jus tertii available by defendant, but not by plaintiff, ib. landlord claimant need not prove his title, ib. tenant may show expiration of landlord's title, ib. master and servant, 313. licensor and licensee, ib. claimant's title may be legal or equitable, ib. limitation, 314. disability, ib. acknowledgment of title, ib. ecclesiastical corporations, ib. commencement of period of, 315. discontinuance of possession, ib. mere entry and continual assertion of claim no bar to running of statute, 316. DOGS, noisy, 234. liability of owner for injuries by. See Ferocious Animals. injury to, 317. killing in self-defence, 322. killing in defence of sheep or cattle, ib. killing in defence of game, when justifiable, ib. DOOR, careless shutting, of railway carriages, 206. contributory negligence by leaving hand on, ib. DRAMATIC COMPOSITIONS. See Copyright. EASEMENT, what is an, 242, and see Nuisance. grantee of, may enter upon servient tenement in order to repair, 305. EJECTMENT. See Dispossession. EMPLOYERS' LIABILITY ACT, 83 et seq. epitome of Act, 83. class of servants to which Act applies, 83, 85. meaning of defect or unfitness in ways, works, &c, 86. meaning of servant superintending, 87. what constitutes a defective bye-law, ib. meaning of railway servant having management of points, &c, a. form of notice of claim, 88. damages limited to three years' wages, 85. INDEX. 367 ENGINES, near highway. See Nuisance. ENGRAVINGS. See Copyright. EX DAMNO SINE INJURIA, &c, 7 et seq. FALSE IMPRISONMENT. ^Imprisonment, Constables, Justices. FALSE REPRESENTATION. See Fraud. FELLOW SERVANTS. See Master and Servant. FELONY, remedy by action for, suspended until criminal trial ended, 27 et seq. how suspension may be effected, ib. FENCES, non-liability for trespass of cattle if adjoining owner bound to keep in repair, 305. liability for injuries caused by dangerous, 40. FEROCIOUS ANIMALS, liability for injuries caused by, 203 et seq. scienter the gist of the action for, ib. presumption of scienter, ib. when scienter not presumed, ib. proof of scienter, ib. scienter, when sheep or cattle worried by dog need not be proved, 204. FERRY, definition of right of, 275. duties of owner of, ib. disturbance of, 276. FIREWORKS, near highway. See Nuisance. FISHERY, rights of, defined, 271. origin of rights of, ib. common of, ib. public rights of, 273. meaning of " free fishery," ib. several fishery in tidal waters, 274. copyhold fisheries, 275. 368 INDEX. FOREIGN COUNTRY, torts committed in, when remediable in England, 49. FOREIGN SOVEREIGNS not liable for torts, 52. FRAUD, 182 et seq. definition of, 182. moral delinquency necessary, 182 et seq. judicial difference of opinions as to, now set at rest by Derry v. Peek, 184. exception to necessity for moral delinquency made by Directors' Liability Act, 185. wben actionable, 187. false representation of value of business to a purchaser, 188. false representation of soundness of a dangerous instrument, 189. fraudulent prospectus, 185, 189, 190. fraudulent conspiracy with the plaintiff's agent, 191. liability for fraud of agent, 191, 192. fraud must have been in relation to some matter within the agent's authority, 193. agent not liable for fraud of sub-agent, ib. fraudulent character must be in writing to be actionable, 187. FRAUDULENT CONCEALMENT, when actionable, 194 et seq. doctrine of caveat emptor, ib. concealing infectious disease in pigs, ib. mere abstinence from mentioning a known defect is'not actionable, 195. an industrious concealment aliter, 196. plastering over a defective wall, ib. expression "with all faults," does not cover all frauds, ib. exceptional cases in which there is a duty not to maintain silence, 197. fraudulent character, ib. limitation, 198. FUNERAL EXPENSES not recoverable under Lord Campbell's Act, 217. GAME, property in, not absolute, 317. Mlling dog in order to preserve, when justifiable, 322. INDEX. 369 GOODS. See Trespass, Wrongful Conversion, Negli- gence. GRATUITOUS DUTIES, when misfeasance in performance of, gives rise to an action, 46. GUN, injury to third party by explosion of a warranted, 42. accidents caused by, without negligence, 17. HAIRWASH, injury caused by poisonous, 43. HIGHWAY, obstruction of, 10. dedication of, to public not a grant of the land, 308. trespass may be maintained by grantor of, for unreasonable use of it, ex. gr., obstructing his right of sporting, 304, 308. HORSE, accident caused by a runaway, when excusable and when not, 16, 17. injuries to, by dog, 204. measure of damages for injury to, 99. HOUSE, liability for ruinous state of. See Nuisance. HUSBAND, liable for torts of wife, 56. not entitled to imprison his wife, 285. ICE, when a public nuisance, 24, 25. IMMORALITY. See Defamation. IMPRISONMENT, what constitutes, 281. moral restraint constitutes, ib. total restraint necessary, 282. by judges and magistrates. See Judge. by private persons and constables, 283 et seq. general immunity from, ib. exceptional cases in which private persons may arrest, 283 et seq. arrest of bail by his surety, ib. arrest of suspected felon, when justifiable, ib. U. B B 370 INDEX. IMPRISONMENT— continued. by private persons and constables — continued. exceptional cases in which private persons may arrest — continued. ■what suspicion sufficient, 284, 286. arrest of breakers of the peace, ib. arrest of night offenders, ib. arrest of malicious injurers, ib. arrest of suspected persons offering goods for pawn, ib. arrest of vagrants, 285. acts of vagrancy, ib. arrest of interrupter of divine service, ib. particular powers of arrest given to individuals, ib. by officers, ib. by parents, ib. no power given to husband to imprison wife, ib. general protection of persons bond fide setting a Court that has jurisdiction in motion, 290. exceptional cases in which a constable may arrest with- out warrant, 286 et seq. may arrest wherever a private person can, ib. cases of suspected felony where no felony has in fact been committed, ib. breaches of peace, 287. malicious injurers, 288. brawlers, ib. general protection of judicial officers, 288. no protection if court has no jurisdiction, ib. what constitutes jurisdiction, ib. where prima facie jurisdiction, 290. for contempt of court, 291. by county court judge, 292. by justice, ib. habeas corpus, 295. limitation of action for, 294. is a continuing tort, ib. in cases of justices and constables, ib. notice of action to justices and constables, ib. damages for, 98. aggravation of damages, 110. INCORPOREAL HEREDITAMENT, injury to. See Support, Light, "Watercourse, "Way, and Common. INEVITABLE ACCIDENT. See Accident. INDEX. 371 INFANT, generally liable for bis torts, 52 et seq. aliter if founded on contract, 55. INJUNCTION, remedy by, 115. interlocutory or perpetual, ib. injuries remediable by, ib. noxious fumes, 117. noise, ib. church bells, ib. obstruction of light and air, 116. cases where damages given instead, ib. general rule as to granting of an, 115 et seq. and 120. how far granted for a mere trespass, 121. pollution of lake, ib. deprivation of support, ib. trade mark, patent, and copyright, ib. when granted to restrain libel, 122. interlocutory, rarely granted to restrain a libel, 123. publication of private letters, ib. where injury merely threatened, 124. granted even where it will inconvenience pubHc, 125. mandatory, 126. delay, 128. INJURIA, meaning of, 7. classification of, 12. INSANITY, imputation of. See Defamation. INSOLVENCY, imputation of. See Defamation. INTENTION, not always material in torts, 15. INVENTOE. See Patent. INVOLTJNTAKY TOETS, when actionable, 15. JOINT OYVNEES, trespasses of, towards each other, 309, 325. JOINT TOET-FEASOES, liability of, 113. what rights of contribution between, ib. B b2 372 INDEX. JUDGE, statements of, absolutely jirivileged communications, 144. may arrest felon or breaker of peace, if offence committed in bis presence, 292. if offence not committed in bis presence, must issue warrant, ib. not liable for a wrongful impi'isonment committed erro- neously if acting witbin bis jurisdiction, 288. jurisdiction of, how constituted, ib. prima facie jurisdiction is sufficient if, through ignorance of some fact of which he could have no knowledge, he has no jurisdiction, 290. power of, to commit for contempt, 291. of county court, power of, 292. no action against, until judgment quashed, 292. general protection of, ib. JUDICIAL PROCEEDINGS, how far privileged communica- tions, 144, 145. JURISDICTION. See Judge. JUS TEETH, defendant in ejectment may set up, but not claimant, 312. may be set up in trover where defendant not bailee or agent, 325. JUSTICE OF THE PEACE. See Imprisonment and Judge. JUSTIFICATION. See Defamation, Assault, Trespass, Imprisonment. LANDLORD, title of, cannot be disputed by tenant, 312. when liable for nuisance on demised premises, 223 et seq. occupation of servant of, equivalent to personal occupation, 312 et seq. LECTURES. See Copyright. LIBEL. See Defamation and Injunction. LICENSEE, a mere, stands in the position of one of the family as regards injuries caused by nuisances, 228. possession of, is the possession of the licensor, 312. LIEN, sale of goods held under, a wrongful conversion, 324. INDEX. 373 LIGHT AND AIR, no right to, ex jure naturae, 249. right to, can only be prescription, grant or reservation, ib. in general no right to air can be gained, except by express grant, 250, 256. aliter for access of air through defined openings or passages, ib. no proof of special damage necessary, ib. question whether plaintiff has suffered a material diminu- tion of light is a question of fact, 251, 257. no excuse that plaintiff has contributed to the diminution, 251, 257. new building on old site inherits the old rights of light, 251. enlargement of ancient lights, 258. dominant tenement must be a building, ib. implied grants of light, ib. a man cannot obstruct on property granted by him to another, ib. rights of two vendees or lessees from same vendor or lessor, 252. rights to light gained by prescription, 254. interruptions sufficient to rebut prescription, 255. right to, lost by giving licence to another to do an act, the natural consequence of which is an obstruction of, 253. reservation of right to, is seldom implied, ib. LIMITATION, of actions of tort, 89 d seq. reasons for, ib. commencement of period of, 90. when tort consists of actual damage, commencement of period of, ib. taking away support of land, 91. conversion, ib. great distinction between real property limitation Acts and those relating to chattels, 93. concealed tort, 90. disability, 95. disability arising subsequently to commencement of period, ib. commencement of period when tort continuing, 94. in particular cases. See under the several headings of those cases, under Employers' Liability Act, 85. LOSS OF SERVICE. See Seduction. LUNATIC liable for his torts, 52 et seq. 374 INDEX. MAGISTEATE. See Judge. MAINTENANCE, definition of, 172. when action maintainable for, ib. not where common interest between maintainer and maintained, 173. nor where maintainer actuated by charitable motives, 174. MALICE. See Defamation. MALICIOUS AEEEST, 171. And see Imprisonment. MALICIOUS PEOSECUTION, 163 et seq. definition of, ib. when actionable, ib. factors necessary for maintaining action for, ib. (1) Prosecution by defendant, 164. prosecution ordered by a magistrate not sufficient, ib. (2) Want of reasonable and probable cause, ib. onus of proof on plaintiff, ib. duties of judge and jury as to, 165. what constitutes, ib. opinion of counsel in favour of prosecution no excuse, 166. (3) Malice, 167. generally implied, ib. knowledge of plaintiff's innocence evidence of malice, ib. knowledge of defendant that he was in the wrong, evi- dence of malice, 168. to stop plaintiff's mouth, ib. subsequent malice of the defendant, 167. adoption of proceedings already commenced, ib. where defendant, by reason of his own perjury, bound over by a magistrate to prosecute, no excuse for, 169. malice may be implied in a corporation, 168. (4) Setting aside of proceedings, a condition precedent to action for, 169. actual damage must be proved, 170. MAN-TEAPS, when illegal, 221. MANUFACTUEE. See Patent. noxious or offensive, an actionable nuisance. See Nuisance and Injunction. INDEX. 375 MANUSCRIPT, copyright in unpublished, 351. MAP, copyright in, 351. MARKET, dangerous state of, 40. MARRIED WOMAN, liable for her torts, 52 et seq. her husband still liable, 56. MASTER AND SERVANT, as to enticing and seducing servants. See Seduction. master in general has no remedy against one who injures servant ex contractu, 42 et seq., and 45. aliter if the injury be caused by a pure tort, unless the servant be killed on the spot, 12, 45. inducing servant to break his contract of service, 150. general liability of master for torts of, 61 et seq. who are servants, 62. accidents occasioned by carelessness of servant, 61, 62. master when liable for illegal act of servant, 61. master liable for wilful act of servant if within the general scope of his authority, 61, 63. liability of master for assaults of servant committed in scope of his employment, 64, 65. master not liable for servant's torts when committed out- side, or beyond scope of his employment, 64, 65 et seq. distinction between unlawful method of doing what he was engaged to do, and unlawful act completely outside the scope of his engagement, 65 et seq. servant giving person into custody is not usually acting within the scope of his employment, 66 et seq. master not liable for injuries caused by servant while driving master's carriage on business of his own, 64. ratification of servant's tort, 70. meaning of term " servant," 61. master not liable for torts committed by persons employed by servant to do his work, 71. contractor or intermediate employer liable for toits of workmen, 58. job-master liable, and not hirer of horses, 59. temporary employment by a third party excuses master, 65. unauthorized delegation by a servant of his duties excuses master from delegates' torts, 71. when master liable for injuries caused by servant to fellow- servant, 72 et seq. And see Employees' LialilitY Act. common law rules as to, 73 et seq. 376 INDEX. MASTER AND SERVANT— continued. when master liable for injuries caused by servant to fellow- servant — continued. master not liable where there is common employment or a voluntary acceptance of risk, 74. meaning of common employment, 74, 75. personal negligence of master, 74, 79. master knowingly employing an unskilful servant, 74. servant's knowledge of danger, when a bar, 75, 80 et seq. volunteer helpers are in the position of servants with regard to suing the master for negligence of his true servants, 82. aliter where acting with master's consent or ac- quiescence, 83. MAXIMS OF LAW, 1. MEASURE OF DAMAGES. See Damages. MEDICAL EXPENSES. See Campbell's (Lord) Act. MEDICAL MEN, negligence of, 39. slandering. See Defamation. MINE, flooding of, by water brought by defendant on to bis land actionable without proof of negligence, 18 et seq. MISFEASANCE, liability for, 46. by railway companies carrying passengers to whom they have not issued tickets, 47. MISREPRESENTATION. See Fraud. MISTAKE, no justification, 15. MITIGATION. ^Damages. MURDER. See Defamation. MUSICAL COMPOSITIONS, assignment of copyright in, is no assignment of the right of public representation of them, 302. NECESSITY, right of way of, 265. INDEX. 377 NEGLIGENCE. See also Professional Men ; Master and Servant ; Contractor. definition of, 199. when actionable, ib. not actionable unless it be proved that the injury suffered ought reasonably to have been anticipated by defendant, 202. dangerous stacking of hay, 199. entrusting loaded gun to inexperienced servant girl, 200. erecting dangerous stage for use of plaintiff, ib. dock master inviting vessel to take up a dangerous berth, 201. bursting of water company's mains, ib. damage caused by extraordinary flood, ib. custody of dog entrusted to a railway company, ib. dangerous and savage animals, 203. when scienter necessary, ib. et seq. when scienter not necessary, 203, 204. negligence a mere relative term, and varies with circum- stances, 205. onus of proof of, 210 et seq. generally on plaintiff, ib. aliter where the accident would not be likely to happen without negligence, ib. runaway horse, ib. accident capable of two explanations, 211. heavy article dropping out of window, ib. contributory, 205. where contributory, affords no excuse, 206, 207. contributory negligence of carrier to whom plaintiff has entrusted himself, no excuse, 208. contributory, in infants, 209. actions by representatives of a person killed by. See Campbell's (Lord) Act. duties of judge and jury in actions for, 212. mode of estimating damages caused by, 205. limitation of actions for, 214. NEWSPAPERS. See Defamation. NOISE. See Nuisance ; Injunction. NOXIOUS TRADE. See Nuisance. NUISANCE. And see Poisonous Trees, Market, Unfenced Hole, Dangerous Substances, Dangerous Fences, Water and Injunction. definition of, 219. examples of, ib. 378 INDEX. NUISANCE— continued. (1) Causing Injury to the Person, 220 et seq. when actionable, ib. excavations near roads, ib. noxious fumes, 221. foul cesspools, ib. spring-guns and man-traps, ib. even trespassers injured by spring-guns and man-traps may maintain action, ib. spring-guns for protection of dwelling-houses at night, lawful, ib. pit or engine near highway, illegal, ib. windmills and fires for burning ironstone near highway nuisances, 222. letting off fireworks near highways, ib. injuries caused by quarries at a distance from highway not actionable, ib. ruinous premises, 223. where nuisance subsists, negligence is immaterial, 219. by contractor. See Master and Servant. landlord not liable for injuries caused to tenant by ruinous premises, 223. alitcr in case of fraud, ib. tenant only, generally liable to third parties, 223, 225. landowner liable if he authorized the nuisance, ib. tenant not liable where nuisance is not on the property of which he is tenant, but only on the approaches to it, 224. falling chimneys, ib., 225. dangerous coal-cellar plates, ib. nuisances on or near private ways, 226. ruinous railway works, 227. act of God justification, ib. dangerous canals, ib. nuisances on public roads, ib. injuries to guests through a subsisting, 228. injuries to persons coming on business, ib. injuries through improper condition of railway stations, 229. ill-lighted stations, ib. limitation, ib. (2) Causing Injury to Real Property. definition of a, 230. affecting corporeal hereditaments, ib. disgusting fumes, ib. noisy trade, ib. the nuisance must be material, 231. INDEX. 379 NUISANCE— continued. (2) Causing Injury to Real Property — continued, affecting corporeal hereditaments — continued. noisy entertainments, 231, 232. entertainments causing crowds and noise, 231. domestic music apparently a licensed nuisance, 232. allowing water to escape, ib. actively shifting danger from self to neighbour, 233. overhanging eaves, 234. overhanging trees, ib. pig-stys, ib. noisy dogs, ib. small-pox hospital, ib. reasonableness of place when no excuse, ib. distinction between injury to property and annoy- ance in its user, 235. immaterial whether plaintiff goes to the nuisance or it to him, 237. prescriptive right to commit, 23S. statutory right to commit, ib. not implied unless the statute necessarily im- _ ports it, 239—241. affecting incorporeal hereditaments, 242 et seq. easements, ib. profits a prendre, ib. title to easements, ib. disturbance of natural right to support, 243. right arises ex jure naturce, 244. right not extended to remote owners whose support has been weakened by acts of intermediate owner, 245. right may be released by agreement, 243. the damage must be material, ib. railway and canal companies have no right of support, 244. subterranean water, 243. right of support for land burdened with buildings, 246. right can be gained only by prescription or grant,247. right may be similarly acquired for support from adjacent houses, 248. where natural right to support is infringed the consequent damage to a modern house may be recovered, 249. right to light and air. See Light and Air. right to watercourse. See WATERCOURSE, right to ways. See WAYS. 380 INDEX. NUISANCE— eontmued. (2) Causing Injury to Real Property — continued, remedy by abatement, 277. remedy by abatement not applicable to prospective nuisances, 278. remedy by injunction. See Injunction. remedy of reversioner, 279. OBSTEUCTION, of entry to places of business, 1 1 . of road, ib. of light and air. See Light and Aik. OMNIBUS, fraudulent imitation of, by a rival proprietor, 337. OUSTEB. See Dispossession. PABTY-WALL, trespass to, 309. PATENT, definition of, 340. conditions to valid grant of, ib. what is a manufacture entitled to the grant of a, 341. newness of manufacture necessary to, 342. rule in Hill v. Evans, ib. prior knowledge of the public fatal to, ib., 344. new combination of old elements, 342. application of a known instrument to analogous purposes, ib. newness only appbes to the United Kingdom, ib. novelty inferred where utility very great, 343. meaning of true and first inventor, ib. secret prior knowledge of another no bar to, ib. manufacture must be of general pubHc utility, ib. producing old articles in a new way when a new manufac- ture, 345. specification, ib. disclaimer and amendment of specification, 346. no damages given for infringement prior to amendment, ib. what constitutes infringement, 347. remedy for infringement, ib. no remedy when articles made merely for experiment, ib. PATENT DEFECT. See Eraud. PEBJUBY, no action lies for consequences of, 144. imputation of, not actionable, unless made with reference to a judicial inquiry, 156. INDEX. 381 PERSONAL PROPERTY, trespass to. See Trespass. PIG-STY. See Nuisance. PIT, accidents from unguarded, 16. POISONOUS TREES, 17. POLLUTION OF WATER, 121. POSSESSION, writ of, 327. See Trespass and Nuisance. PRESCRIPTION. See Light and Air, Nuisance, Support, Watercourse, Way, Common. PRINTER. See Defamation. PRIVATE WAY. See Way. PRIVILEGED COMMUNICATIONS. See Defamation. PRIVITY, in torts arising out of contract, 41. PROBABLE CAUSE. See Malicious Prosecution. PROBABLE CONSEQUENCE, every man presumed to intend the, of his acts, 15. PROFESSIONAL MEN, negligence of, 39. PUBLIC CONVENIENCE does not justify a tort to an individual, 38, 125. PUBLIC NUISANCE. See Nuisance. PUBLICATION. See Defamation. QUIA TIMET INJUNCTION, 124. RAILWAY COMPANY. See Negligence, Master and Servant, Contract, Misfeasance and Nuisance. RATIFICATION. See Master and Servant. RECAPTION, remedy by, 329. REMOTENESS of damage, 23. REPLEVIN, action of, 328. 382 INDEX. REVERSIONER, may enter into and inspect pi'emises, 305. remedy of, for injury to land, 279. remedy of, for trespass, accompanied by a denial of title, ib. remedy of, for obstructions, ib. no remedy given to, for mere transient trespasses or nuisances, ib. some injury to tbe reversion must be proved, 280. remedy of, for injury to personal property, 323. RIVER. See Watercourse. RUINOUS PREMISES. See Nuisance. SCIENTER. See Ferocious Animals. SCULPTURE, copyrigbt in. See Copyright. SEA-WALL, damage tbrougb insufficient beigbt of, 25 et seq. SEDUCTION, action for, -whence arising, 175. of servant from master's employ is actionable, ib. relation of master and servant essential, 176. contract of service, when implied, ib. debauching plaintiff's daughter, 176 et seq. proof of loss of service necessary to sustain an action for, ib. contract to pay wages unnecessary to create relation of master and servant, ib. small services suffice, 177 — 179. when daughter lives with her father, and is a minor, service is presumed, 178. aliter where the daughter acts as another's house- keeper, ib. aliter where she supports her father, ib. where service to another is put an end to, the right of the parent revives, 179. temporary visit no termination of service, ib. relation of master and servant must subsist at time of seduction, 176. if parent helps to bring about his own dishonour, he cannot recover, 179. damages in, ib. And see Damages. aggravation of, 180. breach of promise of marriage not technically matter of aggravation, ib. (note). INDEX. 383 SEDUCTION— continued. damages in — continued. mitigation of, 181. previous immorality or looseness, ib. limitation, 182. SELF-DEFENCE, injury committed in, 15, 22, 299. SERVANT. See Master and Servant. may sue for loss of luggage or personal injury although master paid the fare, 45. SEWER, nuisance caused hy defective, 17. SHAFT, unguarded, 16. SHEEP, injuries to, hy dog actionahlo without proof of scienter, 204. SHOOTING by accident not actionable, 15. SHOP, obstructing view of a, no tort, 10. SLANDER. See Defamation. SOLICITOR, slandering a, 158. SOVEREIGN not liable for torts, 52. SPRING-GUNS. See Nuisance. STATUTE, does not take away common law rights in general, 38. nor, unless very explicit, does it excuse a nuisance, ib., 125. STATUTORY DUTIES, breaches of, 33 et seq. where no right created in favour of the plaintiff there is no action maintainable, ib. no action where statute only intended to prevent mischief of a different character to that suffered by plaintiff, 37. sometimes injured party is restricted to the statutory penalty, 34 et seq. copyright, 36. SUPPORT. See Nuisance (2). TENANT. See Landlord. cannot dispute landlord's title, 312. but may show that title has expired, ib. 384 INDEX. TITLE. See Trespass and Dispossession. TOET, definition of, 5. nature of a, discussed, 6 et seq. classification of, 12. arising out of contract, 39 et seq. ■waiver of, 329. TRADE MAEK AND TEADE NAME, 330 et seq. definition of, 331. nature of the title to relief, 332. injunction to restrain infringement of, 334. damages, 335. account of profits, ib. whether trade name indicates manufacturer or class of goods manufactured, ib. et seq. no trade mark in descriptive name of a new product, 336. assignment of, 338. selling articles under seller's own name, ib. registration necessary before bringing an action, 339. TRESPASS. And see also Dispossession. (1) To Lands (quare clausum f regit), 303 et seq. definition, ib. what it consists of, ib. driving nails into wall is, 304. by straying cattle, ib. any user going beyond that authorized, ib. remedy for, by distress damage feasant, 310. in re-taking goods, justifiable, 305. in driving cattle off plaintiff's land, when justifiable, ib. in distraining for rent, justifiable, ib. in executing legal process, justifiable, ib. by reversioner inspecting premises, justifiable, ib. in escaping a pressing danger, justifiable, ib. by grantee of easement for the purpose of making repairs, justifiable, ib. under due legal authority, justifiable, ib. plea of liberum tenementum, 306. trespassers ab initio, ib. possession necessary to maintenance of action for, 307. when two people are in adverse possession, possession in persons entitled, ib. possession dates back to title, 307. onus of proof of title lies on prima facie trespasser, ib. when surface and subsoil in different owners, 308. to highways, ib. INDEX. 385 TRESPASS— continued. (1) To Lands (quare clausum /regit) — continued. of joint owners, 309. carrying away of soil by one of two joint owners, ib. reasonable working of coal mine by joint owner, ib. injuries to party- walls, ib. continuing, 310. damages for. See Damages. limitation of actions for, 310. (2) To Goods and Chattels (de asportatis bonis). what is, 316. to animals, 317. good intention no excuse, ib. kindly officiousness may amount to, ib. destruction of goods by bailee, 316. excessive sale by sheriff, 317. killi ng game or animals /era; natural, ib. purchasing goods without title, 318. purchasing goods in market overt, 322. distinction between fraudulent contract and no con- tract, 319. no trespass if plaintiff in fault, 321. no remedy if animals get injured whilst trespassing, unless defendant used unreasonable force, 322. wrongful alteration or mixing up of goods prevents the person altering from maintaining an action for the materials or goods with which the alteration was made or mixed, 321. unauthorized painting of carriage, ib. trespass in defence of property, ib. shooting a trespassing dog, when allowable, 322. trespass in self-defence, ib. trespass in exercise of right, ib. trespass in exercise of legal authority, ib. conversion to enforce pledge, ib. possession necessary to maintenance of action, 323. possession follows title, ib. bailee delivering goods to an unauthorized person re- vests possession in bailor, ib. sale by a person having a lien is a trespass, 324. damages for sale of goods by person having a Hen, ib. administrator may maintain trespass for injuries to goods committed before grant of administra- tion, ib. so may a trustee when possession actually in cestui que trust, ib. V. C C 386 INDEX. TRESPASS— continued. (2) To Goods and Chattels [de asportatis bonis) — continued, ■what possession suffices, 324. possession of finder, ib. possession, prima facie proof of title, 325. defendant cannot in general set up jus tertii, ib. trespasses of joint owners, ib. trespass ab initio, 326. recaption, ib. action for trespass, 327. action of replevin, 328. waiver of tort, 329. stolen goods, ib. limitation, 330. TEOVEE. See Wrongful Conversion. TETJSTEE may maintain trespass or conversion for injuries to goods when actual possession in cestui que trust, 324. UNFENCED SHAFT OR QUARRY, 221, 232. VALUATION negligently made, only gives a right of action to the valuer's client, 44. VIEW, interruption of, is no tort, 10. VIS MAJOR, excuses what would otherwise be actionable, 19, 21. VOLUNTEERS not in general entitled to recover for negligence of a party or his servants, 82. VOTE, wrongful refusal by returning officer to record, is a tort, 10. WALL, trespass to, by sticking nails into it, 304. party-, 309. WARRANT. See Constable. WASTE, 40. WATER, causing accumulation of, whereby another's property is in- jured, is actionable, unless injury caused by vis major, 18 et seq. INDEX. 387 WATEE— continued. aliter if caused by fault of a third party, 19. injury caused by natural percolation of, from another's mine, no tort, 10. allowed to escape and to form ice on a public highway, 24, 25. WATEECOUESE, right to use of surface watercourse vested in riparian pro- prietors, 258. aliter with regard to subterranean water, 259, 261. disturbance of right to use of, 260. damage essential to an action for disturbance of, 260. fouling a well, ib. drawing off underground water, where actionable, 261. penning back water in, 261. prescriptive rights in derogation of other riparian proprie- tors, 262. rights may be gained in an artificial, ib. WAY. See Nuisance. obstruction of a public, may be a tort, 11. unfenced hole adjoining a, may be a tort, 11. obstruction of private, 12, 266 et seq. right of, 263. only gained by prescription or grant, ib. disturbance of, ib., 266. right strictly limited by terms of grant or by mode of user, 264. right of, of necessity, 265. cessor of right when necessity ceases, ib. implied grants of way over private roads, ib. prescriptive rights of way, 266. WIFE, may sue for loss caused by the killing of her husband, 130, 214. liability of husband for torts of, 56. may sue without joining her husband, 51. WINDOWS. See Light and Am. WOEDS. See Defamation. WRONGDOEE, any possession sufficient to sustain trespass against a, 307, 323. all things are presumed against a, 111, 324. 388 INDEX. WEONGFUL CONVERSION, what is, 316. destruction of goods by bailee is, ib. excessive execution is a, 317. good intention no excuse for officious interference, ib. selling another's goods by mistake is a, however bond fide, 318. purchase of goods from a person not entitled is a, even by a bond fide purchaser, ib. purchase from person who has obtained goods by fraud may or may not be a conversion, 319. purchase from person who is convicted of obtaining the goods by false pretences, 320. purchase of goods in market overt, 322. possession necessary to maintenance of action for, 323. reversioner cannot sue for, ib. reversioner's remedy, ib. possession follows title, ib. unauthorized delivery by bailee revests possession in bailor ib. sale by one having a Hen is a conversion, 324. any possession suffices against a wrongdoer, 323. possession of finder, 324. possession prima facie evidence of title, ib. when defendant may set up jus tertii, 325. conversions of joint owners, ib. subsequent conversion of lawfully-obtained chattel, 326. making inquiries as to real owner before delivering goods to him is no conversion, ib. recaption, ib. ordinary remedy by action, 327. power of judge to order restitution, ib. replevin, 328. waiver of tort, 329. restitution of stolen goods, ib. limitation, 330. LONDON : PRINTED BY C. F. ROWORTH, GREAT NEW STREET, FBTTEB LANE— B.C. CATALOGUE OP Hato wmavkZ PUBLISHED BY MESSRS. BUTTERWORTH, JLafo 33oofeg»dkrg ant) ^uultefrerg TO THE QUEEN'S MOST EXCELLENT MAJESTY, AND TO H.R.H. THE PRINCE OF WALES. " Now for the Laws of England (if I sliall speak my opinion of them without "partiality either to my profession or country), for the matter and nature of " them, I hold them wise, just and moderate laws: they give to God, they give to " Ca>sar, they give to the subject what nppertaineth. It is true they are as mixt " as our language, compounded of British, Saxon, Danish, Norman customs. " And surely as our language is thereby so much the richer, so our laws are like- " wise by that mixture the more complete." — Lokd Bacon. LONDON : 7, FLEET STEEET, E.C. 1893. INDEX TO CATALOGUE. Page Action, Common Law. Boyle 13 Admiralty Practice, Coote 19 Agricultural Holdings Act. Bund 10 Alabama Case. O'Dowd 36 Aliens. Cutler 19 Ancient Land Settle- ment. Bund 38 Appeals, House of Lords Denison & Scott ... 6 Arbitration. Redman 20 Articled Clerks' Hand- book. Mosely 18 Average, General. Crump 6 Awards. Redman 20 Banks and Banking. Grant 12 Barbados. Laws of ... 37 Bar Education. Smith .. 27 Bar Examination Journal. .. 34 Bills of Sale. Hunt Macaskie Probyn .. 10 .. 27 .. 5 Blockade. Deane ... 37 Bonds, Probate. Chadwick 8 Bookkeeping, Solici- tors'. Coombs 28 Page Boundaries. Hunt 33 Burgesses' Manual. Gach.es 38 Carriers, Inland. Powell 10 Chamber Practice. Parkinson 38 Cbancery Practice. Underbill 15 Chart of Landed Pro- perty. Fearne 38 Church Building Acts. Trower 29 Church Seats. Heales ... ... 28 Civil Service of India. Cutler 34 Claims and Defences. Drewry 7 Club Law. Daly 12 Commentaries. Blackstone's ... 5 Stephen's 5 Commentaries on Inter- national Law. Phillimore 14 Commercial Law. Stevens 35 Common Law Action. Boyle 13 Common Law Practice. Lush 36 Companies, Banking. Grant 12 Companies, Joint- Stock Bower 40 Shelf ord 7 Companies, Railway. Shelf ord 12 CompensationforLand. Ingram 24 Consistory Court, Lon- don. Judgments,Tristram 24 Rules and Regula- tions 24 Page Constitutional History. Pulton 17 Contentious Probate Practice. Tristram 11 Contraband of "War. Moseley 27 Twiss 35 Contracts. Plumptre 23 Contributories. Collier 33 Conveyancing. Lewis 14 Rouse 18 Conveyancing Act, 1881 Clerke& Brett ... 32 Conveyancing Drafts- man. Kelly 20 Co-operative Societies. Brabrook 28 Copyholds. Brown 16 Scriven 16 Corporation Duty. Hewitt 17 Costs. Gray 36 County Court Practice. Davis 8 Criminal Consolida- dation Acts. Davis 25 Debtors Estates. Pye 11 Defences and Claims. Drewry 7 Designs. Lawson 25 Dictionary, Law. Mozley & Whiteley 9 Directors' Liability Act Bower 35 Divorce. Bedford 13 Browning 34 Domestic Servants. Baylis 26 INDEX TO CATALOGUE. Page Draftsman, Convey- ancing. Kelly 20 Ecclesiastical Law. 39 Tristram 24 Employers and "Work - men. Davis 6 Employers' Liability Act. Ruegg 32 England, Laws of. Stephen 5 English Appeals. Denison & Scott ... 6 English Law. Francillon 38 Nasmith 16 Equity. Drewry 27 Roberts 8 Trower 9 Underbill _ 15 Equity, Claims and Defences. Drewry 7 Equity in relation to Law. Chute 8 Evidence. Powell 6 Examination Guide. Bedford 13 Execution. Anderson 7 Fences. Hunt 33 Fishery Laws. Bund 29 Oke 31 Foreshores. Hunt 33 O'Dowd 36 Form of the Law. Holland 35 Frauds. Hunt 10 Freedom of Land. Underbill ... '... 35 French Commercial Code. Mayer 7 Game Laws. Oke 31 Gaming. Daly 12 Gas & Water Supply. Michael & Will ... 22 Page General Average. Crump 6 Guarantees. DeColyar 9 Hand Book for Articled Clerks. Mosely 18 House of Lords, Ap- peals. Denison & Scott ... 6 House Tax Acts. Dowell 25 Housing of Working Classes Act. Bernard & Morgan- Brown .. ... 25 Husband and Wife. Edwards & Hamilton 13 Income Tax Laws. Dowell 25 Corporation Duty. Hewitt 40 Indian Law. Cutler & Griffin ... 18 Industrial Societies. Brabrook 28 Inns of Court. Pearce 37 Institutes of English Law. Nasmith 16 Insurance, Marine. Crump 6 International Law. Hamel 36 Phillimore 14 Irish Appeals. Denison & Scott ... 6 Joint Stock Companies. Shelf ord 7 Judicature Acts. Bedford 13 Labour Laws. Davis 6 Landlord and Tenant. Fawcett 10 Land Law. Land Laws 35 Underbill 35 Law Dictionary. Mozley & Whiteley . 9 Law Examination Journal . . . . 19 Leading Cases, Real Property. Tudor 17 26 11 Page Legacy Duties. Shelf ord ... Libel. Folkard Licensing Laws. Oke 31 Local Government Act, 1888. Byde & Thomas ... 6 Locus Standi Reports. Clifford & Rickards 21 Clifford & Stephens. 21 Bickards & Michael 21 Rickards & Saunders 21 Saunders' Index ... 21 London, Public Health Act. Roberts & Gollan ... 5 Lord Lyndhurst. Gibson 37 Lunacy. Phillips 34 Magisterial Formulist. Oke 30 Magisterial Synopsis. Oke 30 Marine Insurance. Crump 6 Marriage. Edwards & Hamilton 13 Married Women's Pro- perty Acts. Edwards & Hamilton 13 Masters and Servants. Baylis 26 Masters and "Workmen. Davis 6 Mayor's Court. Glyn, Probyn, & Jackson 13 Mercantile Law. Stevens 35 Mines and Minerals. Bainbridge 16 Mortgages. Fisher 12 Municipal Registration Davis 22 Naturab'zation. Cutler 19 Naval Prize Law. Lushington 27 Negligence. Saunders 21 A2 INDEX TO CATALOGUE. Parliamentary Regis- tration. Davis 22 Saint 38 Partition Act. Lawrence 29 Partnership. Dixon 22 Pothier 37 Patents. Higgins 24 Lawson 25 Waggett 28 Pews. Heales 28 Pitfalls of Testators. Flood 14 Pleading. Chitty 35 Williams ... ... 37 Preliminary Exami- nation Journal. Benham 34 Principal and Surety. DeColyar 9 Private Bill Legis- lation. Clifford 5 Prize Law, Naval. Lushington 27 Probate and Divorce. Bedford 13 Px - obate Bonds. Chadwiek 8 Probate Duties. Shelf ord ; 26 Probate Practice. Tristram & Coote ... 11 Public Health (London) Act. Roberts & Gollan ... 5 Page Public Meeting. Blagg ... 19 Railway Carriers. Butterworth & Ellis Powell ... 10 Railways. Shelf ord ... ... 12 Rating Appeals. Hyde ... 33 Real Property. Tudor .. 17 Real Property Act. Clerke & Brett .. 32 Referees' Practice. Clifford & Rickards .. 21 Clifford & Stephens .. 21 Rickard& Michael 21,40 Registration. Davis .. 22 Saint .. 38 Roman Law. Gaius .. 27 Ortolan .. 20 Tomkins .. 26 History of. Nasmith .. 20 Sale, Bills of. Macaskie .. 27 Salmon Fisheries. Bund .. 29 Scotch Appeals. Denison & Scott . .. 6 Settled Land Acts. Underhill . 15 Sheriff. Anderson ... . 7 Shorthand. Gurney . 21 Slander. Folkard . 11 Page Solicitors' Bookkeeping Coombs 28 Stock Exchange. Keyser 3 Succession Duties. Shelf ord 26 Support. Stephen 28 Surety and Principal. De Colyar 9 Tariffs. Hertslet 24 Torts. Underhill 15 Town Councillors' Manual. Gaehes 38 Trade Marks. Lawson 25 Treaties. Hertslet ...23,24,40 Trusts and Trustees. Underhill 15 Turnpikes. Oke 31 Vendors & Purchasers. Seaborne 26 Water and Gas Supply. Michael & Will ... 22 Wife and Husband. Edwards & Hamilton 13 Wills. Flood 14 Wigram 29 Winding-up. Collier 33 Wrongs. Underhill 15 ( 5 ) Safe SiMta; pWisto ty Sjjfers. §ittetad{r. STEPHEN'S NEW COMMENTARIES.-llth Edit. Mr. SEE JE ANT STEPHEN'S NEW COMMEN- TAEIES ON THE LAWS OF ENGLAND, partly founded on Blackstone. By His Honour Judge Stephen. The Eleventh Edition. 4 vols. 8vo. 4Z. 4s. cloth. 1890 *,* The "Work selected for the Intermediate Examinations for Solicitors for 1893 and 1894. From the "Law Times." "Our old familiar friend, Stephen's From the "Law Student's Journal." Commentaries on the Laws of England, «<™_- ,,, ,-■_• ■ ± comes to us in a handsome blue binding, Thw well-known work being just in its tenth edition. The Editor is now the established subject for study Mr. Archibald Brown, and, when we for the Solicitors* Intermediate Exami- remember the amount of excellent work nation, tends, of course, to its more this ^ntleman has done in the literature speedy sale. Besides, it is indeed in of the law, his name is a guarantee that P 1 '^? senses a wonderful and a useful nothing has been omitted which was book > containing, as it does, something necessary to insert to bring Stephen on nearly everything. The preparation down to the date of publication. We °* this edition has, we are informed in should have to repeat Mr. Brown's the preface, been entrusted to that la- preface if we detailed the additions and borious compiler and editor of lawbooks, amendments which he has made. All Mx - Archibald Brown, though, for some that we need do is to assure the Pro- reason, Ins name dues not appear on the fession that, having examined these title-page. Mr. Brown has had great ex- volumes, we find them all that could penence in this way, and we are inclined be desired, without any appreciable in- to believe his statement that he has crease in bulk-a really great considera- P 8 ^ sedulous attention to the wants tion, having regard to the enormous both of the profession and of students." growth of statute and case law." ROBERTS & GOLLAN'S PUBLIC HEALTH OF LONDON. THE LAW EELATING TO THE PUBLIC HEALTH OF LONDON: being the Public Health (London) Act, 1891, fully Annotated, with References to all the Cases bearing on its Construction, together with an Explanatory Chapter and other Enactments and Orders relating thereto. By James Roberts, M.A., L.L.B., and H. C. Gollan, M.A., Esquires, Barristers-at-Law. This day is published, in 1 vol. 8vo., 14s. cloth. — « — CLIFFORD'S PRIVATE BILL LEGISLATION. A HISTOEY OF PEIVATE BILL LEGISLATION. By Frederick Clifford, of the Middle Temple, Barrister-at- Law. In Two Volumes. 8vo. 21. 15s. cloth. 1885—1887 %* May be had separately, Vol. 1, 20s.; Vol. 2, 35s. cloth. PROBYN'S STATUTORY FORM OF BILL OF SALE. STATUTOEY FOEM OF A BILL OF SALE, with FORMS OF, AND RULES FOR DRAWING SAME, also a Digest of all the Reported Cases. By L. Probyn, Esq., of the Middle Temple, Barrister-at-Law. Just published. In post 8vo. 3s. cloth. 1888 6 LAW WORKS PUBLISHED BY RYDE & THOMAS' LOCAL GOVERNMENT ACT. THE LOCAL GOVEENMENT ACT, THE COUNTY ELECTOES ACT, 1888, THE MUNICIPAL COBPOEA- TIONS ACT, 1882, with Ml Explanatory Notes and an In- troduction; an Appendix containing the Acts incorporated therewith, and a Copious Index. By Walter C. Eyde, M.A., of the Inner Temple, and E. Lewis Thomas, M.A., LL.M., of Lincoln's Inn and the Midland Circuit, Barristers-at-Law. Just published, in 1 vol., 8vo., 24s. cloth. 1888 BUTTER WORTH ON RAILWAY RATES & TRAFFIC. — Second Edition. A TEEATISE ON THE LAW EELATING TO EATES AND TEAFFIC ON EAILWAYS AND CANALS, and the Practice of the Eailway and Canal Commission. By A. Kaye Butterworth, LL.B., of the Great Western Eailway, Solicitor, assisted by C. E. Ellis, B.A., of the Inner Temple, Barrister- at-Law. In 1 vol., medium 8vo., 18s. 6d. cloth. 1889 POWELL ON EVIDENCE. By CUTLER & GRIFFIN. — Sixth Edition. POWELL'S PEINCIPLES and PEACTICE of the LAW of EVIDENCE. Sixth Edition. By J. Cutler, B.A., Professor of English Law and Jurisprudence, and Professor of Indian Jurisprudence at King's College, London, and C. F. Cagney, B.A., Barristers-at-Law. Post 8vo. 21s. cloth. 1892 DENISON AND SCOTT'S HOUSE OF LORDS APPEAL PRACTICE APPEALS TO* THE HOUSE OF LOEDS: Procedure and Practice relative to English, Scotch and Irish Appeals ; with the Appellate Jurisdiction Act, 1876; the Standing Orders of the House ; Directions to Agents ; Forms, and Tables of Costs. Edited, with Notes, Eeferences and a full Index, forming a complete Book of Practice under the New Appellate System. By Chas. Marsh Denison and Chas. Henderson Scott, of the Middle Temple, Esqs., Barristers-at-Law. 8vo. 16s. cloth. 1879 DAVIS'S LABOUR LAWS OF 1875. THE LABOUE LAWS OF 1875, with Introduction and Notes. By J. E. Davis, Esq., Barrister-at-Law, and late Police Magistrate for Sheffield. 8vo. 12s. cloth. 1875 CRUMP'S PRINCIPLES OF MARINE INSURANCE THE PEINCIPLES OF THE LAW EELATING TO MAEINE INSUEANCE AND GENEBAL AVEEAGE in England and America, with occasional references to French and German Law. By F. Octavius Crump, of the Middle Temple, Esq., Barrister-at-Law. In 1 vol. royal 8vo. 21s. cloth. 1875 MESSES. BUTTERWORTH, 7, FLEET STREET, E.C. 7 ANDERSON'S LAW OF EXECUTION. A TEEATISE ON THE LAW OF EXECUTION in the High Court and Inferior Courts ; including the Powers, Duties, and Liabilities of the Sheriff, the High Bailiff, the Bishop, and other Executive Officers. By T. Kerr Anderson, LL.B., Barrister-at-Law. Just published, demy 8vo., 32s. cloth. MAYER'S FRENCH CODE OF COMMERCE. THE FEENCH CODE OF COMMERCE, as revised to the end of 1886, and an Appendix containing later Statutes in connection therewith, rendered into English, with Explanatory Notes and Copious Index. By Sylvain Mayer, B.A,, Ph.D., of the Middle Temple, Esq., Barrister-at-Law. Just published, post 8vo., 9s. cloth. 1887 SHELFORD'S JOINT STOCK COMPANIES.— Second Edition by PITCAIRN and LATHAM. SHELFOED'S LAW of JOINT STOCK COMPANIES, containing a Digest of the Case Law on that subject; the Com- panies Acts, 1862, 1867, and other Acts relating to Joint Stock Companies ; the Orders made under those Acts to regulate Pro- ceedings in the Court of Chancery and County Courts; and Notes of all Cases interpreting the above Acts and Orders. Second Edition, much enlarged, and bringing the Statutes and Cases down to the date of publication. By D. Pitcairn, MA., of Lincoln's Inn, Barrister-at-Law, and F. L. Latham, B.A., Oxon, of the Inner Temple, Barrister-at-Law. 8vo. 21s. cloth. 1870 DREWRY'S FORMS OF CLAIMS AND DEFENCES. FOEMS OF CLAIMS AND DEFENCES IN CASES intended for the CHANCEBY DIVISION OF THE HIGH COURT OF JUSTICE. With Notes, containing an Outline of the Law relating to each of the subjects treated of, and an Appendix of Forms of Endorsement on the Writ of Summons. By C. Stewart Drewry, of the Inner Temple, Esq., Barrister- at-Law, Author of a Treatise on Injunctions, and of Eeports of Cases in Equity, temp. Kindersley, V.-C, and other works. Post 8vo. 9s. cloth. 1876 LAW WORKS PUBLISHED BY ROBERTS' PRINCIPLES OE EQUITY.— Third Edition. THE PRINCIPLES OF EQUITY as administered in the SUPEEME COUKT OP JUDICATURE and other Courts of Equitable Jurisdiction. By Thomas Archibald Roberts, of the Middle Temple, Esq., Barrister-at-Law. Third Edition. 8vo. 18s. cloth. 1877 DAVIS'S PRACTICE OF THE COUNTY COURTS.— Sixth Edition. THE PEACTICE OF THE COUNTY COURTS.— By James Edward Davis, of the Middle Temple, Barrister-at- Law. The Sixth Edition (including the New County Court Rules, and the New Consolidated Bankruptcy Rules), edited by S. M. Rhodes, of the Inner Temple, Barrister-at-Law. Just Published in 1 thick vol. demy Svo., price 45s. 1886 CHADWICK'S PROBATE COURT MANUAL. Corrected to 1876. EXAMPLES of ADMINISTRATION BONDS for the COURT of PROBATE ; exhibiting the principle of various Grants of Administration, and the correct mode of preparing the Bonds in respect thereof ; also Directions for preparing the Oaths ; arranged for practical utility. With Extracts from Statutes ; also various Forms of Affirmation prescribed by Acts of Parliament, and a Sup- plemental Notice, bringing the work down to 1876. By Samuel CHADWiCK,of her Majesty's Court of Probate. Roy. 8vo. 12s. cloth. CHUTE'S EQUITY IN RELATION TO COMMON LAW. EQUITY UNDER THE JUDICATUEE ACT, or the Relation of Equity to Common Law. By Chaloner William Chute, Barrister-at-Law; Fellow of Magdalen College, Oxford; Post Svo. 9s. cloth. 1874 MESSRS. BUTTERWORTH, 7, FLEET STREET, E.C. 9 MOZLEY AND WHITELEY'S CONCISE LAW DICTIONARY. A CONCISE LAW DICTIONARY, containing Short and Simple Definitions of the Terms used in the Law. By Herbert Newman Mozley, M.A., Fellow of King's College, Cambridge, and of Lincoln's Inn, Esq., and George Crispe Whiteley, M. A. , Cantab, of the Middle Temple, Esq. , Barristers- at-Law. In 1 vol. 8vo. 20s. cloth; 25s. brown calf. 1876 "This book contains a large mass of information more or less useful. A considerable amount both of labour and learning' has evidently been expended upon it, and to the general public it may be recommended as a reliable and use- ful guide. Law students desirous of cramming will also find it acceptable." — Law Times. "This book is a great deal more modest in its views than the law dic- tionary we reviewed a little while ago. Its main object is to explain briefly legal terms, both ancient and modern. In many cases, however, the authors have added a concise statement of the law. But, as the work is intended both for lawyers and the public at large, it does not profess to give more than an outline of the doctrines referred to under the several headings. Having regard to this design, we think the work is well and carefully edited. It is exceedingly complete, not only giving terse explana- tions of legal phrases, but also notices of leading cases and short biographies of legal luminaries. We may add that a very convenient table of reports is given, showing the abbreviations, the date and the court, and that the book is very well printed." — Solicitors' Journal. ' It should contain everything of value to be found in the other larger works, and it should be useful not merely to the legal profession, but also to the general public. Now, the work of Messrs. Mozley and Whiteley appears to fulfil those very conditions ; and, while it assists the lawyer, will be no less useful to his client. On the whole, we repeat that the work is a praise- worthy peformance which deserves a place in the libraries both of the legal profession and of the general public." — Irish Law Times. DE COLY AIl'S LAW OF GUARANTEES. 2nd Edit. A TREATISE ON THE LAW OF GUARANTEES and of PRINCIPAL and SURETY. By Henry A. De Colyar, of the Middle Temple, Barrister-at-Law. Second Edition. 16s. cloth. 1885 " Mr. Colyar' s work contains internal evidence that he is quite at home with his subject. His book has the great merit of thoroughness. Hence its present value, and hence we venture to predict will be its enduring reputation." — Law Times. " The whole work displays great care in its production ; it is clear in its state- ments of the law, and the result of the many authorities collected is stated with an intelligent appreciation of the subject in hand." — Justice of the Peace. TROWER'S PREVALENCE OF EQUITY. A MANUAL OF THE PEEVALENCE OF EQUITY, nnder Section 25 of the Judicature Act, 1873, amended by the Judicature Act, 1875. By Charles Francis Trower, Esq., M.A., of the Inner Temple, Barrister-at-Law, late Fellow of Exeter College, and Vinerian Law Scholar, Oxford, Author of " The Law of Debtor and Creditor," " The Law of the Building of Churches and Divisions of Parishes," &c. 8vo. 5s. cloth. 1876 " The amount of information con- tained in a compressed form within its pages is very considerable, and on the whole it appears to be accurate. The work has been carefully revised, and is well and clearly printed." — Law Times. 10 , LAW WORKS PUBLISHED BY FAWCETT'S LAW OF LANDLORD AND TENANT. A COMPENDIUM OF THE LAW OF LANDLOBD AND TENANT. By "William Mitchell Fawcett, Esq., of Lincoln's Inn, Barrister-at-Law. 1 vol. 8vo. 14s. cloth. 1871 " This new compendium of the law on tions, and uses language as untechnical a wide and complicated subject, upon as the subject admits." — Law Journal.^ which information is constantly re- " Mr. Fawcett takes advantage of this quired by a vast number of persons, is characteristic of modern law to impart sure to be in request. It never wanders to his compendium a degree of authen- from the point, and being intended not ticity which greatly enhances its value as for students of the law, but for lessors a convenient medium of reference, for and lessees, and their immediate ad- he has stated the law in the very words visers, wisely avoids historical disquisi- of the authorities." — Law Magazine. HUNT'S LAW OF FRAUDS AND BILLS OF SALE. THE LAW relating to FBAUDULENT CONVEY- ANCES under the Statutes of Elizaheth and the Bankrupt Acts; with Bernarks on the Law relating to Bills of Sale. By Arthur Joseph Hunt, of the Inner Temple, Esq., Barrister-at-Law, Author of " A Treatise on the Law relating to Boundaries, Fences and Foreshores." Post 8vo« 9s. cloth. 1872 " Mr. Hunt has brought to bear upon subjects of the work." — Law Magazine. the subject a clearness of statement, "Mr. Hunt's book is as readable as an orderliness of arrangement and a a treatise on so technical a subject can subtlety of logical acuteness which well be made. Mr. Hunt's arrange- carry him far towards a complete sys- ment of his materials follows an orderly tematization of all the cases. Neither and intelligible plan. The index is has his industry been lacking; the cases apparently carefully prepared, and the that have arisen under ' The Bank- table of cases shows that none of the ruptcy Act, 1869,' and under the Bills recent cases have been overlooked. Mr. of Sale Act, have been carefully and Hunt has produced a really useful book completely noted up and disposed by unenciunbered by useless matter, which him in their appropriate places. The deserves great success as a manual of index also is both accurate and careful, the law of fraudulent dispositions of and secures much facility of reference property." — Law Journal'. to the various matters which are the BUND'S AGRICULTURAL HOLDINGS ACT.— 2nd Edit. The LAW of COMPENSATION for UNEXHAUSTED AGBICULTUBAL IMPBOVEMENTS, embodying the changes made by the Agricultural Holdings Act, 1883, with Statutes and Forms. By J. W. Willis Bund, M.A., of Lincoln's Inn, Barrister-at-Law. Second Edit. Post 8vo. 12s. cloth. POWELL'S LAW OF INLAND CARRIERS.— Second Edition. THE LAW OF INLAND CAEEIEES, especially as regulated by the Bailway and Canal Traffic Act, 1854. By Edmund Powell, Esq., of Lincoln College, Oxon, M.A., and of the Western Circuit, Barrister-at-Law, Author of "Principles and Practice of the Law of Evidence." Second Edition, almost re-written. 8vo. 14s. cloth. MESSRS. BTJTTERWORTH, 7, FLEET STREET, E.C. 11 FOLKARD ON SLANDER & LIBEL.— Fifth Edition. THE LAW OF SLANDEE AND LIBEL (founded upon the Treatise of the late Thomas Starkie, Esq., Q.C.), including the Procedure, Pleading and Evidence, Civil and Criminal, with Forms and Precedents ; also Contempts of Court, Criminal Information, &c., and an Appendix of Statutes. Fifth Edition. By Henry Coleman Folkard, of Lincoln's Inn and the Western Circuit, Barrister-at-Law, Becorder of Bath. Just published, in 1 thick vol., roy. 8vo., 55s. cloth. 1891 PYE ON CLAIMS TO DEBTORS' ESTATES. NOTES ON THE CONFLICTING CLAIMS TO THE PROPEBTY OF A DEBTOB. By Henry John Pye, of the Inner Temple, Esq., Barrister-at-Law. Post 8vo. 3s. 6d. cloth. 1880 TRISTRAM AND COOTE'S PROBATE PRACTICE.— Eleventh Edition. COOTE'S COMMON FOEM PEACTICE AND TEIS- TBAM'S CONTENTIOUS PBACTICE, and Practice on Motions and Summonses of the High Court of Justice in granting Pro- bates or Administrations. 11th Edit. By Thomas Hutchinson Tristram, Q.C., D.C.L. In 1 vol. 8vo., 32s. cloth. 1891 "The above is another name for what eminently practical and useful work is commonly known to the profession as on Probate Practice of some 500 odd Coote's Probate Practice, a work about pages of text and 300 pages of forms, as indispensable in a solicitor's office as Although the work is entitled ' Tris- any book of practice that is known to tram & Coote's Contentious and Non- us. Solicitors know that the difficulties Contentious Practice,' in the arrange- in the way of satisfying the different mentof the book the practice is reversed, clerks at Somerset House are frequently Mr. Coote's Non-Contentious Practice great, and there is nothing so likely to properly coming first. We make no tend to simplicity of practice as Mr. pretence to have read through the whole Coote's book." — Law Times. of the book, but we have tested it in " The present edition is in reality a various places on points with which we new edition of two separate works com- are familiar or on points on which we bined. It consists of ' Coote's Non- seek information. We are pleased to Contentious ' and ' Tristram's Conten- find that in most cases our searches tious' Probate Practice, two familiar have been satisfactory." — Law Notes. books to all probatepractitioners. These " We heartily recommend the work to two works have now been combined by practitioners."— 'Law Student's Journal. Mr. Tristram, and the result is an 12 LAW WORKS PUBLISHED BY DALY'S CLUB LAW.— Second Edition. CLUB LAW AND THE LAW OF UNEEGXSTEEED FRIENDLY SOCIETIES : a Handbook of the Rights and Liabilities of Officers and Members of Clubs, and other Unregis- tered Societies, inter se, and as regards Strangers ; Procedure in Actions by or against ; Gambling ; Drinking ; Leading Cases, &c. By Dominick Daly, of the Inner Temple and Midland Circuit, Barrister-at-Law. 2ndEd. Just published, fscap. 8vo. 3s.6d. cloth. SHELFORD'S RAILWAYS.— Fourth Edition, by Glen. SHELEOED'S LAW OF EAILWAYS, containing the whole of the Statute Law for the Regulation of Railways in England, Scotland and Ireland. With Copious Notes of Decided Cases upon the Statutes, Introduction to the Law of Railways, and Appendix of Official Documents. Fourth Edition, by W. Cunningham Glen, Barrister-at-Law, Author of the "Law of Highways," "Law of Public Health and Local Govern- ment," &c. 2 vols, royal 8vo. 63s. cloth; 75s. calf. 1869 GRANT'S BANKERS AND BANKING COMPANIES. Fourth Edition. By C. C. M. PLUMPTRE. GE ANT'S TEEATISE ON THE LAW EELATING TO BANKERS AND BANKING COMPANIES. With an Appendix of the most important Statutes in force relating thereto. Fourth Edition. With Supplement, containing the Bills of Exchange and Bills of Sale Acts, 1882. ByC. C.M.Plumptre, of the Middle Temple, Esq., Barrister-at-Law. 8vo. 29s. cloth. %* The Supplement may be had separately , price 3s. sewed. " Eight years sufficed to exhaust the the sterling' merits which have ac- second edition of this valuable and quired for it the high position which it standard work, we need only now holds in standard legal literature. Mr. notice the improvements which have Fisher has annotated all the recent been made. We have once more looked cases." — Law Times. through the work, and recognize in it FISHER'S LAW OF MORTGAGE— Fourth Edition. The LAW of MOETGAGE and OTHEE SECUEITIES UPON PROPERTY. By William Richard Fisher, of Lincoln's Inn, Esq., Barrister-at-Law. Fourth Edition. 1 vol. roy. 8vo. 52s. Gd. cloth. " This work has built up for itself, in prove most useful reading for the stu- the experienced opinion of the profes- dent, both as a storehouse of inf orma- sion, a very high reputation for careful- tion and as intellectual exercise." — ness, accuracy and lucidity. Thisrepu- Law Magazine. tation is fully maintained in the present " We have received the third edition edition. The law of securities upon of the Law of Mortgage, by William property is confessedly intricate, and, Richard Fisher, Barrister-at-Law, and probably, as the author justly observes, we are very glad to rind that vast im- embraces a greater variety of learning provements have been made in the plan than any other single branch of the of the work, which is due to the incor- English law. At the same time, an poration therein of what Mr. Fisher accurate knowledge of it is essential to designed and executed for the abortive every practising banister, and of daily Digest Commission. In its present requirement amongst solicitors. To all f orm, embracing as it does all the sta- such we can confidently recommend Mr. tute and case law to the present time, the Fisher's work, which will, moreover, workisoneofgreatvalue." — Law Times. MESSRS. BTJTTERWORTH, 7, FLEET STREET, E.C. 13 EDWARDS AND HAMILTON'S LAW OF HUSBAND AND WIFE. THE LAW OF HUSBAND AND WIFE : with sepa- rate chapters upon Marriage Settlements, and the Married Women's Property Act, 1S82. By John William Edwards and William Frederick Hamilton, LL.D., Esquires, of the Middle Temple, Barristers-at-Law. In 1 vol. post 8vo. 16s. cloth. 1883 BOYLE'S PRECIS OF AN ACTION AT COMMON LAW. PEECLS of an ACTION at COMMON LAW, showing at a Glance the Procedure under the Judicature Acts and Bules in an Action in the Queen's Bench, Common Pleas and Ex- chequer Divisions of the High Court of Justice. By Herbert E. Boyle, Solicitor. 8vo. os. cloth. 1881 GLYN, PROBYN, AND JACKSON'S MAYOR'S COURT PRACTICE. THE JUEISDICTION AND PEACTICE OF THE MAYOE'S COUET, together with Appendices of Forms and of the Statutes specially relating to the Court. By L. E. Glyn and L. Probyn, Esquires, Barristers-at-Law ; and F. S. Jackson, Esquire, Barrister-at-Law (Deputy Registrar). In 1 vol. 8vo. 15s. cloth. 1888 BEDFORD'S FINAL EXAMINATION GUIDE TO PROBATE AND DIVORCE.— 2nd Edition. THE FINAL EXAMINATION GUIDE to the LAW of PEOBATE and _ DIVORCE: containing a Digest of Final Examination Questions with the Answers. By E. H. Bedford, Solicitor,Temple, Author of the " Final Examination Guide to the Practice of the Supreme Court of Judicature." In 1 vol. post 8vo. 6s. cloth. BEDFORD'S FINAL EXAMINATION GUIDE. THE FINAL EXAMINATION GUIDE TO THE PEACTICE of the SUPEEME COUET of JUDICATURE, containing a Digest of the Final Examination Questions, with many New Ones, with the Answers, under the Supreme Court of Judicature Act. By Edward Henslowe Bedford, Solicitor, Temple. In 1 vol. 8vo. 7s. 6d. cloth. 1875 14 LAW WORKS PUBLISHED BY FLOOD ON MAKING WILLS. THE PITFALLS OF TESTATOES. A Few Hints about the Making of Wills. By John C. H. Flood, of the Middle Temple, Esquire, Barrister-at-Law. 1 vol. post 8vo. 5s. cloth. 1884 LEWIS'S INTRODUCTION TO CONVEYANCING. PKrNCTPLES OF CONVEYANCING EXPLAINED and ILLUSTRATED by CONCISE PRECEDENTS. "With an Appendix on the Effect of the Transfer of Land Act in Modifying and Shortening Conveyances. By Hubert Lewis, B.A., late Scholar of Emmanuel College, Cambridge, of the Middle Temple, Barrister-at-Law. 8vo. 18s. cloth. 1863 PHILLIMORE'S INTERNATIONAL LAW.— 3rd edit. Vol. I. 8vo. 24s. cloth; Vol. II. 26s. cloth; Vol. III. 36s. cloth; Vol. IV. 36s. cloth. COMMENTAEIES ON INTEENATIONAL LAW. By the Right Hon. Sir Robert Phillimore, EJit., P.O., Judge in the Probate, Matrimonial, Divorce and Admiralty Division of the High Court of Justice. 1879—1889 Extract from Pamphlet on "American Neutrality," by George Bemis [Boston, U.S.). — " Sir Robert Phillimore, the present Queen's Advocate, and author of the most comprehensive and systematic ' Commentaries on International Law' that England has produced." " The authority of this 'work is admit- Having 1 read the work carefully and tedly great, and the learning and ability critically, we are able to highly recom- displayed in its preparation have been mend it." — Law Journal. recognized by writers on public law both "The second edition of Sir Robert on the Continent of Europe and in the Phillimore' s Commentaries contains a United States. With this necessarily considerable amount of valuable addi- imperfect sketch we must conclude our tional matter, bearing more especially notice of the hrst volume of a work on questions of international law raised which forms an important contribution by the wars and contentions that have to the literature of public law. The broken out in the world since the pub- book is of great utility, and one which lication of the first edition. Having should find a place in the library of upon a former occasion discussed at every civilian." — Law Magazine. some length the general principles and " It is the most complete repository of execution of this important work, we matters bearing upon international law now propose to confine ourselves to a that we have in the language. We need brief examination of a single question, not repeat the commendations of the on which Sir Robert Phillimore may text itself as a treatise or series of justly be regarded as the latest autho- treatises which this journal expressed rity and as the champion of the princi- upon the appearance of the two first pies of maritime law, which, down to a volumes. The reputation of the Author recent period, were maintained by this is too well established and too widely country, and which were at one time known. We content ourselves with tes- accepted without question by the mari- tif ying to the fulness and thoroughness time powers. Sir Robert Phillimore has of the work as a compilation after an examined with his usual learning, and inspection of the three volumes. (2nd established without the possibility of edition)." — Boston [United States) Daily doubt, the history of the doctrine 'free Advertiser. ships, free goods,' and its opposite, in " Sir Robert Phillimore may well be the third volume of his 'Comm en- proud of this work^as a lasting record taries' (p. 302)." — Edinburgh Review, No. of his ability, learning and his industry. 296, October, 1876. MESSRS. BUTTER.WOBTH, 7, FLEET STREET, E.C. 15 UNDERBILL'S GUIDE TO EQUITY. A CONCISE GUIDE TO MODERN EQUITY. Being a Course of Nine Lectures delivered at the Incorporated Law Society during the Year 1885 : Eevised and Enlarged. By A. Underhill, M.A., LL.D., of Lincoln's Inn, Esq., Barrister- at-Law. 1 vol. post 8vo. 9s. cloth. 1885 UNDERBILL'S SETTLED LAND ACTS.— 2nd Edition. THE SETTLED LAND ACTS, 1882 & 1884, and the BULES of 1882, with an Introduction and Notes, and Concise Precedents of Conveyancing and Chancery Documents. By A. Underbill, M.A., LL.D., of Lincoln's Inn, Barrister-at- Law. Assisted hy B. H. Deane, B.A., of Lincoln's Inn, Barrister-at-Law. 2nd Edit. 1 vol. post 8vo. 8s. cloth. 1885 UNDERBILL'S CHANCERY PROCEDURE. A PEACTICAL and CONCISE MANUAL of the PRO- CEDUBE of the CHANCEBY DIVISION of the HIGH COUBT of JUSTICE, hoth in Actions and Matters. By Arthur Under- bill, LL.D., of Lincoln's Inn, Barrister-at'-Law. 1 vol. post 8vo., 10s. 6eZ. cloth. 1881 UNDERHILL'S LAW OF TORTS.— Fifth Edition. A SUMMARY OF THE LAW OP TORTS, OR WBONGS INDEPENDENT OP CONTBACT. By Arthur Underhill, M.A., LL.D., of Lincoln's Inn, Esq., Barrister- at-Law. Fifth Edition. 1 vol. post 8vo. 10s. cloth. 1889 " He has set forth, the elements of the " The plan is a good one and has been law with clearness and accuracy. The honestly carried out, and a good index little work of Mr. Underhill is inexpen- facilitates reference to the contents of sive and may be relied on." — LawTimes. the book." — Justice of the Peace. UNDERHILL'S LAW OF TRUSTS AND TRUSTEES. A CONCISE AND PBACTICAL MANUAL OF THE LAW BELATING TO PBIYATE TBUSTS AND TBUSTEES. By Arthur Underhill, M.A., LL.D., of Lincoln's Inn and the Chancery Bar, Barrister-at-Law. Third Edit. With Supplement containing the Trustee Act, 1888. Post 8vo. 18s. cloth. 1889 *„* The Supplement may be had separately 2s. sewed. "The author so treats his subjects the model of Sir Fitzjames Stephen's that it will not be found a difficult ' Digest of the Criminal Law and Law matter for a person of ordinary intel- of Evidence from the Indian Acts,' and ligence to retain the matter therein con- which has been followed by Mr. Pollock tained, which must be constantly ne- in his ' Digest of the Law of Partner- cessary, not only to the professional ship.' Mr. Underhill has, in the above- man, but also for all those who may have named volume, performed a s imil ar task taken upon themselves the responsibili- in relation to the ' Law of Trusts.' In ties of a trustee." — Justice of the Peace. seventy-six articles he has summarized " We recently published a short re- the principles of the ' Law of Trusts' as view or notice of Mr. A. F. Leach's distinctly and accurately as the subject ' Digest of the Law of Probate Duty,' will admit, and has supplemented the and remarked that it was framed after articles with illustrations." LawJournal. 16 LAW WORKS PUBLISHED BY BROWN'S COPYHOLD ENFRANCHISEMENT ACTS. THE LAW AND PEACTICE ON ENFRANCHISE- MENTS AND COMMUTATIONS under the Copyhold Acts, 1841 — 1887, and other Acts, and at Common Law ; with Forms, Practical Directions, and Annotations to the Copyhold Acts. By Archibald Brown, of the Middle Temple, Barrister-at-Law, Editor of " Scriven on Copyholds," &c. Just published in 1 vol., post 8vo., 14s. cloth. 1888 SCRIVEN ON COPYHOLDS.— 6th Edit., by Brown. A TEEATISE on the LAW of COPYHOLDS and of the other TENUBES (Customary and Freehold) of LANDS within Manors, with the Law of Manors and Manorial Customs generally, and the Bules of Evidence applicable thereto, in- cluding the Law of Commons or Waste Lands, and also the Jurisdiction of the various Manorial Courts. By John Scriven. The Sixth Edition, thoroughly revised, re-arranged, and brought down to the present time, by Archibald Brown, Esq., of the Middle Temple, Barrister-at-Law, B.O.L., &c, Editor of " Bain- bridge on the Law of Mines." 1 vol. roy. 8vo. 30s. cloth. 1882 BAINBRIDGE ON MINES.— 4th Edit., by Archibald Brown. A TREATISE on the LAW of MINES and MINERALS. By William Bainbridge, Esq., F.G.S., of the Inner Temple, Barrister-at-Law. Fourth Edition. By Archibald Brown, M.A. Edin. and Oxon, of the Middle Temple, Barrister-at-Law. This Work has been wholly re-cast, and in the greater part re- written. It contains, also, several chapters of entirely new matter, which have obtained at the present day great Mining importance. 8vo. 45s. cloth. 1878 " This work must be already familiar which has for so long a period occupied to all readers whose practice brings the position of the standard work on them in any manner in connection with this important subject. Those only who, mines or mining', and they well know by the nature of their practice, have its value. We can only say of this new learned to lean upon Mr. Bainbridge edition that it is in all respects worthy as on a solid staff, can appreciate the of its predecessors." — Law Times on deep research, the admirable method, 3rd edit. and the graceful style of this model " It would be entirely superfluous to treatise.." — Law Journal on 3rd edit. attempt a general review of a work NASMITH'S INSTITUTES OF ENGLISH LAW. THE INSTITUTES OF ENGLISH LAW.— Part 1, English Public Law. Part 2, English Private Law (in 2 vols.). Part 3, Evidence and the Measure of Damages. By David Nasmith, LL.B., of the Middle Temple, Barrister-at-Law, Author of the Chronometrical Chart of the History of England, &c. In 4 vols, post 8vo. 30s. cloth. 1873—1879 * # * The above may be had separately to complete sets at the following prices : — Tart 1, 10s. cloth. Tart 2, 20s. cloth. Tart 3, 10s. cloth. MESSRS. BUTTERWORTH, 7, FLEET STREET, E.C. 17 HEWITT'S CORPORATION DUTY. A TEEATISE ON THE LAW EELATING TO COBPOBATION DUTY ; or, The Duty on the Income of the Property of Bodies Corporate and Unincorporate. With especial reference to Claims for Exemption ; with Inland Eevenue Forms and Eeport of Leading Case as to Exemption, &c. By Thomas Hewitt, of the Inner Temple, Barrister-at-Law. Just pub- lished, in 1 vol., post 8vo., 6s. cloth. 1892 FULTON'S Manual of CONSTITUTIONAL HISTORY. A MANUAL OF CONSTITUTIONAL HISTOEY, founded on the Works of Hallam, Creasy, May and Broom : comprising all the Fundamental Principles and the Leading Cases in Constitutional Law. By Forrest Fulton, Esq., LL.D., B.A., University of London, and of the Middle Temple, Barrister-at-Law. Post 8vo. 7s. 6d. cloth. 1875 TUDOR'S LEADING CASES ON REAL PROPERTY.- Third Edition. A SELECTION of LEADING CASES on the LAW relating to BEAL PEOPEETY, CONVEYANCING, and the CONSTEUCTION of WILLS and DEEDS ; with Notes. By Owen Davies Tudor, Esq., of the Middle Temple, Barrister- at-Law, Author of "Leading Cases in Equity." Third Edition. 1 thick vol. royal 8vo. 21. 12s. 6d. cloth. 1879 "The work before us comprises a to the former." — Solicitors' Journal and digest of decisions which, if not exhaus- Reporter. tive of all the principles of our real "In this new edition, Mr. Tudor has property code, will at least be found to carefully revised his notes in accordance leave nothing untouched or unelabo- with subsequent decisions that have rated under the numerous legal doc- modified or extended the law as pre- trines to which the cases severally relate. viously expounded. This and the other To Mr. Tudor' s treatment of all these volumes of Mr. Tudor are almost a law subjects, so complicated and so varied, library in themselves, and we are satis- we accord our entire commendation. fled that the student would learn more There are no omissions of any important law from the careful reading of them, cases relative to the various branches of than he would acquire from double the the law comprised in the work, nor are time given to the elaborate treatises there any omissions or defects in his which learned professors recommend statement of the law itself applicable the student to peruse, with entire for- to the cases discussed by him. We cor- getfulness that time and brains are dially recommend the work to the prac- limited, and that to do what they advise titioner and student alike, but especially would be the work of a life." — LawTimes. 18 LAW WORKS PUBLISHED BY MOSELY'S ARTICLED CLERKS' HANDY BOOK.— By Bedford. MOSELY'S PEACTICAL HANDY-BOOK OF ELE- MENTAEY LAW, designed for the Use of ARTICLED CLEEKS, with, a Course of Study, and Hints on Reading for the Intermediate and Final Examinations. Second Edition, by Edward Henslowe Bedford, Solicitor. Post 8vo., 8s. 6d. cloth. 1878 " This book cannot be too strongly Law. It will certainly not be the fault recommended to every one who con- of either author or editor if the years templates becoming' a solicitor." — Law spent under articles are not well spent, Examination Journal. and if the work required to lay a sound "Mr. E. H. Bedford, indefatigable foundation of legal knowledge is not in his labours on behalf of the articled done with that 'knowledge' of which clerk, has supervised a new edition of they so emphatically declare the neees- Mosely's Handy Book of Elementary sity." — Law Magazine. CUTLER & GRIFFIN'S INDIAN CRIMINAL LAW. AN ANALYSIS OF THE INDIAN PENAL CODE, including the INDIAN PENAL CODE AMENDMENT ACT, 1870. By John Cutler, B.A., of Lincoln's Inn, Barrister-at- Law, Professor of English Law and Jurisprudence, and Professor of Indian Jurisprudence at King's College, London, and Edmund Fuller Griffin, B.A., of Lincoln's Inn, Barrister-at-Law. 8vo. 6s. cloth. 1871 ROUSE'S CONVEYANCER, with SUPPLEMENT, 1871. Third Edition. The PEACTICAL CONVEYANCER, giving, in a mode combining facility of reference with general utility, upwards of Four Hundred Precedents of Conveyances, Mortgages and Leases, Settlements, and Miscellaneous Forms, with (not in previous Editions) the Law and numerous Outline Forms and Clauses of "Wills and Abstracts of Statutes affecting Real Pro- perty, Conveyancing Memoranda, &c. By Bolla Rouse, Esq., of the Mddle Tenrple, Barrister-at-Law, Author of " The Prac- tical Man," &c. Third Edition, greatly enlarged. With a Supplement, giving Abstracts of the Statutory Provisions affecting the Practice in Conveyancing, to the end of 18^0 ; and the requisite Alterations in Forms, with some new Forms ; and including a full Abstract in numbered Clauses of the Stamp Act, 1870. 2 vols. 8vo. 30s. cloth; 38s. calf. 1871 %* The Supplement may be had separately, price Is. 6d. sewed. " The best test of the value of a book reached its third shows that it is con- written professedly for practical men is sidered by those for whose convenience the practical one of the number of edi- it was written to fulfil its purpose well." tions through which it passes. The fact — Law Magazine. that this well-known work has now MESSRS. BUTTERWORTH, 7, FLEET STREET, E.C. 19 BLAGG'S LAW OF PUBLIC MEETING. THE LAW AS TO PUBLIC MEETING. By J. W. Blagg, Esq., of Lincoln's Inn, Barrister-at-Law. In 1 vol. Post 8vo. 3s. cloth. 1888 CUTLER'S LAW OF NATURALIZATION. THE LAW OF NATUEALIZATION as Amended by the Act of 1870. By John Cutler, B.A., of Lincoln's Inn, Barrister-at-Law, Editor of "Powell's Law of Evidence," &c. 12mo. 3s. 6d. cloth. 1871 "Professor Cutler's book is a useful is given in full with a useful index."— summary of the law and of the changes Law Magazine. which have been made in it. The act COOTE'S ADMIRALTY PRACTICE.— Second Edition. THE PEACTICE OF THE HIGH COUET OF ADMIEALTY OF ENGLAND : also the Practice of the Judicial Committee of Her Majesty's Most Honourable Privy Council in Admiralty Appeals, with Forms and Bills of Costs. By Henry Charles Coote, F.S.A., one of the Examiners of the High Court of Admiralty, Author of "The Practice of the Court of Probate," &c. Second Edition, almost entirely re- written; and with a SUPPLEMENT containing the County Court Practice in Admiralty, the Act, Rules, Orders, &c. 8vo. 16s. cloth. 1869 THE LAW EXAMINATION JOURNAL. THE LAW EXAMINATION JOUENAL. Edited by Herbert Newman Mozley, M.A., Fellow of King's College, Cambridge; and of Lincoln's Inn, Esq., Barrister-at-Law. *** Copies of Vol. I., containing Nos. 1 to 14, with full Indexes and Tables of Cases Cited, may now be had, price 16s. bound in cloth. Vol. II, containing Nos. 15 to 28, with Index, price in cloth, 16s. Vol. III., containing Nos. 29 to 45, price 18s. Gd. cloth. Vol. IV., containing Nos. 46 to 62, price 18s. 6d. cloth. b2 20 LAW WOKKS PUBLISHED BY NASMITH'S HISTORY OF ROMAN LAW. OUTLINE OF EOMAN HISTOEY, from Eomulus to Justinian (including Translations of the Twelve Tables — the Institutes of Gaius and the Institutes of Justinian), with special reference to the Growth, Development, and Decay of Boman Jurisprudence. With Map and Chart. By David Nasmith, Q.C., LL.B. Just published in 1 vol. demy 8vo. 25s. cloth. 1890 "The book itself is admirable in every " The author has treated his subject respect, and we notify to Students for in a clear and compendious manner, the Bar that it is an excellent treatise and his work will undoubtedly be found on Roman Law." — Law Notes, April, both useful and interesting to English 1890. lawyers." — Law Journal. ORTOLAN'S ROMAN LAW, Translated by PRICHARD and NASMITH. THE HISTOEY OF EOMAN LAW, from the Text of Ortolan's Histoire de la Legislation Bomaine et Generalisation du Droit (edition of 1870). Translated, with the Author's permission, and Supplemented by a Ohronometrical Chart of Boman History. By I. T. Prichard, Esq., F.S.S., and David Nasmith, Esq., L.L.D., Barristers-at-Law. 8vo. 28s. cloth. 1871 "We know of no work, which, in our translation before us, it is enough to opinion, exhibits so perfect a model of say, that it is a faithful representation what a text-book ought to be. Of the of the original." — Law Magazine. KELLY'S CONVEYANCING DRAFTSMAN.— 2nd Edit. THE DEAFTSMAN: containing a CoUection of Concise Precedents and Forms in Conveyancing; with Introductory Observations and Practical Notes. By James H. Kelly. Second Edition. Post 8vo. 12s. 6d. cloth. 1881 REDMAN ON ARBITRATIONS AND AWARDS.— Second Edition. A CONCISE TEEATISE on the LAW OF AEBI- TBATIONS and AWABDS ; with an Appendix of Precedents and Statutes. By Joseph Haworth Bedman, of the Middle Temple, Esq., Barrister-at-Law, Author of "A Treatise on the Law of Bailway Companies as Carriers." 2nd Edition. 8vo. 18s. cloth. 1884 " The arrangement is good, the style work will be useful. The precedents clear, and the work exhaustive. There of awards are clearly and concisely is a useful appendix of precedents and drawn. The arrangement of chapters statutes, and a very good index." — Law is conveniently managed. The law is Times. clearly stated, and, so far as we can " This is likely to prove a useful book judge, all the important cases bearing in practice. All the ordinary law on directly on the subject are given, while the subject is given shortly and in a the index appears reasonably copious, convenient and accessible form, and These facts, combined with the small- the index is a good one." -Solicitors' ness of the volume, ought to make the Journal. book a success." — Law Journal. "We have no doubt but that the MESSRS. BUTTERWORTH, 7, FLEET STREET, E.C. 21 CLIFFORD & STEPHENS' REFEREES' PRACTICE, 1873. THE PEACTICE OF THE COUET OF EEFEEEES on PEIVATE BILLS IN PARLIAMENT; with Reports of Cases as to the Locus Standi of Petitioners decided during the Sessions 1867—72. By Frederick Clifford, of the Middle Temple, and Pembroke S. Stephens, of Lincoln's Inn, Esqs., Barristers-at-Law. 2 vols, royal 8to. 31. 10s. cloth. In continuation of the above, Roi/. 8vo., sewed, Vol. I. Part I., 31s. M. ; Part II., 15s.: Vol. II. Part I., 12s. 6d. ; Part II., 12s. 6d. ; Part III., 12s. 6^.; Part IV., 15s.: and Vol. III. Part I., 15s. ; Part II., 15s. ; Part III., 15s. ; Part IV., 15s. CASES DECIDED DUEING THE SESSIONS 1873 to 1884. By Frederick Clifford and A. G. Rickards, Esqs., Barristers-at-Law. In continuation of the above, Roy. 8vo., sewed, Vol. I. Part I., 12s. 6d. ; Part II., 9s. ; Part III., 15s., Part IV., 10s. 6d. CASES DECIDED DUEING THE SESSIONS 1885— 1888. By A. Gr. Rickards and M. J. Michael, Barristers-at-Law. In continuation of the above, Roy. %vo., sewed, Vol. I. Part I., 18s. ; Part II., 10s. U. CASES DECIDED DUEING- THE SESSIONS 1890, 1891 and 1892. By A. G. Rickards and R. C. Saunders. CONSOLIDATED INDEX TO LOCUS STANDI REPORTS, 1867 to 1890. By R. C. Saunders. Roy. 8vo. 1?. lis. 6d. cloth. 1891 GTJRNEY'S SHORTHAND.— Eighteenth Edition. A TEXT BOOK OF THE GUENEY SYSTEM OF SHORTHAND. 18th Edition. Edited by W. B. Gurney & Sons, Shorthand Writers to the Houses of Parliament. Post 8vo. 3s. cloth. 1885 SAUNDERS' LAW OF NEGLIGENCE. A TEEATISE on the LA Wapplicable to NEGLIGENCE. By Thomas W. Saunders, Esq., Barrister-at-Law, Recorder of Bath. 1 vol. post 8yo. 9s. cloth. 1871 " The book is admirable ; while small " We find very considerable diligence in bulk, it contains everything that is displayed. The references to the cases necessary, and its arrangement is such are given much more fully, and on a that one can readily refer to it. Amongst more rational system than is common those those who have done a good ser- with textbook writers. He has a good vice Mr. Saunders will find a place." — index." — Solicitors' Journal. Law Magazine. 22 LAW WOKKS PUBLISHED BY DIXON'S LAW OF PARTNERSHIP. A TEEATISE ON THE LAW OF PAETNEESHIP. By J. Dixon, of Lincoln's Inn, Esq., Barrister-at-Law, Editor of "Lush's Common Law Practice." 1 vol. 8vo. 22s. cloth. 1866 "He has evidently bestowed upon this that of a philosophical lawyer. Mr. book the same conscientious labour and Dixon's is purely and exclusively prac- painstaking industry for which we had tical from beginning to end. We to compliment him some months since, imagine that very few questions are when reviewing his edition of ' Lush's likely to come before the practitioner Practice of the Superior Courts of Law,' which Mr. Dixon's book will not be and, as a result, he has produced a found to solve. We have only to add, clearly written and well arranged ma- that the value of the book is very nual upon one of the most important materially increased by an excellent branches of our mercantile law." — Law marginal summary and a very copious Journal. index." — Law Magazine and Review. " Mr. Lindley's view of the subject is MICHAEL & "WILL'S GAS AND WATER SUPPLY. Third Edition. THE LAW KELATING TO GAS AND WATEE: comprising the Bights and Duties, as well of Local Authorities as of Private Companies in regard thereto, and including all Legislation to the close of the last Session of Parliament. By W. H. Michael, Q.C., and J. Shiress Will, Q.C. Third Edition. By M. J. Michael, of the Middle Temple, Barrister- at-Law. 8vo. 30s. 1884 " The Law of Gas and Water, by had been executed with care, skill and Messrs. Michael and Will, has reached ability. This edition is a decided im- a second edition, and the authors tell provement on the first, and therefore us that they have not only brought the we need add nothing now. It is a work law down to the present time but they which has probably found its way into have re-written a considerable portion of the hands of all interested in the prac- the text, particularly with reference to tical application of the Acts of Parlia- gas. When the first edition appeared ment relating to gas and water supply." we expressed an opinion that the work — Law Times. DAVIS ON REGISTRATION.^Second Edition. With Supplement. THE LAW of EEGISTEATION, PAELIAMENTAEY, and MUNICIPAL, with all the STATUTES and CASES. With a Supplement comprising the Cases decided on Appeal on the Parliamentary and Municipal Eegistration Act, 1878. By J. E. Davis, Esq., Barrister-at-Law. Post 8vo., 15s. cloth. 1880 •»* The Supplement may be had separately, 2s. &d. sewed. MESSRS. BUTTERWORTH, 7, FLEET STREET, E.C. 23 PLUMPTRE ON THE LAW OF CONTRACTS. A SUMMARY OF THE PEINCIPLES OF THE LAW OF SIMPLE CONTBACTS. By Claude C. M. Plumptre, of the Middle Temple, Esq., Barrister-at-Law. (Middle Temple Common Law Scholar, Hilary Term, 1877.) Post 8vo. 8s. cloth. 1879 %* A Companion Work to Underhill on Torts. " In our last volume we had occasion to mention with approbation two works by Mr. Arthur Underhill, A Summary of the Law of Torts, and a Concise Manual of the Law relating to Trusts and Trustees ; the first of these had reached a second edition, and in its preparation the author of the present work was associated with Mr. Under- hill. In the preparation of this book Mr. Plumptre has adopted the Lines laid down by Mr. Underbill ; by means of short rules and sub-rules he presents a summary of the leading principles re- lating to the law of simple contracts, with the decisions of the Courts by which they are illustrated. Part I. deals with the parties to a simple contract, and treats of those persons exempted from the performance of their contracts by reason of incapacity, such as infants, married women, lunatics, drunkards, convicts and bankrupts. Chapter 4 is devoted to contracts by corporations and by agents, and the following chap- ter to partners and partnerships gener- ally. "In Part LT. we have the constituent parts of a simple contract, the consent of the parties, the consideration, the pro- mise, contracts illegal at common law and by statute, and fraudulent con- tracts. " Part HE. gives rules for making a simple contract, and treats of. contracts within the 4th and 17th sections of the Statute of Frauds ; Statutes of Limi- tation ; the discharge of the obligation imposed by the contract by perform- ance ; by mutual agreement ; by accord and satisfaction ; and by operation of law ; oral evidence and written con- tracts ; damages ; and contracts made abroad. " The book contains upwards of one hundred rules, all ably illustrated by cases, and a very full and well- compiled index facilitates reference. It is more particularly addressed to students, but practitioners of both branches of the legal profession will find it a useful and trustworthy guide." — Justice of the Peace. HERTSLET'S TREATIES. HERTSLET'S TREATIES of Commerce, Navigation, Slave Trade, Post Office Communications, Copyright, &c, at present subsisting between Great Britain and Foreign Powers. Compiled from Authentic Documents by Sir Edward Heetslet, K.C.B., Librarian and Keeper of the Papers of the Foreign Office. 18 Vols. 8vo. 26Z. 10s. *** Vol. I. price 12s., Vol. II. price 12*., Vol. III. price 18s., Vol. TV. price 18s., Vol. V. price20s., Vol. VI. price 25s., Vol. VII. price 30s., Vol. VIII. price 30s., Vol. IX. price 30s., Vol. X. price 30s., Vol. XI. price 30s., Vol. XII. price 40s., Vol'. XIII. price 42s., Vol. XIV. price 42s., Vol. XV. price 42s., Vol. XVI, price 25s., Vol. XVII., price 42s., Vol. XVIII., price 42s., cloth, may be had separately to complete sets. Vol. XVI. contains an Index of Subjects to the Fifteen published Volumes. 24 LAW WORKS PUBLISHED BY HERTSLET'S TREATIES ON TRADE AND TARIFFS. TREATIES AND TARIFFS regulating the Trade between Great Britain and Foreign Nations, and extracts of the Treaties between Foreign Powers, containing "Most Favoured Nation" Clauses applicable to Great Britain in force on the 1st January, 1875. By Sir Edward Hertslet, K.C.B., Librarian and Keeper of the Papers, Foreign Office. Part I. (Austria). Royal 8vo. 7s. 6d. cloth. Part II. (Turkey). 15s. cloth. Part III. (Italy). 15s. cloth. Part IV. (China). 10s. cloth. Part V. (Spain). 11. Is. cloth. Part VI. (Japan). 15s. cloth. Part VII. (Persia). 10s. cloth. TRISTRAM'S CONSISTORY JUDGMENTS. This day is published, in 1 vol., royal 8vo., 18s. cloth. THE PRINCIPAL JUDGMENTS DELIVERED IN THE CONSISTORY COURTS OF LONDON, HEREFORD, RIPON, and WAKEFIELD, and in the COMMISSARY COURT OF CANTERBURY, 1872 to 1890. By Chancellor Tristram, Q.C., D.C.L. 1893 Rules and Regulations to be observed in all Causes, SUITS and PROCEEDINGS instituted in the Consistory Court of London from and after the 26th June, 1877. By Order of the Judge. Royal 8vo. Is. sewed. INGRAM'S LAW OF COMPENSATION.— Second Edit. COMPENSATION to LAND and HOUSE OWNERS: being a Treatise on the Law of tbe Compensation for Interests in Lands, &c. payable by Railway and other Public Companies ; with an Appendix of Forms and Statutes. By Thomas Dunbar Ingram, of Lincoln's Inn, Esq., Barrister-at-Law, now Professor of Jurisprudence and Indian Law in the Presidency College, Calcutta. Second Edition. By J. J. Elmes, of the Inner Temple, Esq., Barrister-at-Law. Post 8vo. 12s. cloth. 1869 HIGGINS'S DIGEST OF PATENT CASES. A DIGEST of the REPORTED CASES relating to the Law and Practice of LETTERS PATENT for INVENTIONS, decided from the passing of tbe Statute of Monopolies to the present time. By Clement Higgins, M.A., F.C.S., of the Inner Temple, Barrister-at-Law. 8vo. 10s. cloth, net. 1875 MESSRS. BTJTTERWORTH, 7, FLEET STREET, E.C. 25 HOUSING OF THE WORKING CLASSES ACT, 1890. THE HOUSING OF THE WOEKING CLASSES ACT, 1890 (53 & 54 Vict. c. 70) ; with Notes and Introduction, the Forms prescribed under the Act, and all existing Enactments upon the Subject, Table of Cases and Index. By W. 0. Bernard, Esq., M.A., LL.B., and H. Morgan-Brown, Esq., LL.B., Barristers-at-Law. Just published, in 1 vol., post 8vo., 6s. cloth. 1891 LAWSON ON PATENTS, &c— Second Edition. LAW AND PEACTICE UNDEK THE PATENTS, DESIGNS AND TRADE MARKS ACTS, 1883 to 1888, with the Practice in Actions for the Infringement of Patent, and an Ap- pendix of Orders and Porms. By William Norton Lawson, M.A., of Lincoln's Inn, Barrister-at-Law, Recorder of Rich- mond. Just published, in 1 vol. demy 8vo., 26s. cloth. 1889 DOWELL'S INCOME TAX LAWS.— Third Edition. THE INCOME TAX LAWS at present in force in the United Kingdom, with practical Notes, Appendices and a copious Index. By Stephen Dowell, M.A., of Lincoln's Inn, Assistant Solicitor of Inland Revenue. Third Edition. 1 vol., demy 8vo., 12s. 6d. cloth. 1890 DOWELL'S HOUSE TAX LAWS. THE ACTS EELATING TO THE TAX ON IN- HABITED DWELLING-HOUSES, with references to the Decisions on the subject. By Stephen Dowell, M.A., of Lincoln's Inn, Assistant Solicitor of Inland Revenue. This day is published, in 1 vol., demy 8vo., 5s. cloth. 1893 DAVIS'S CRIMINAL LAW CONSOLIDATION ACTS. THE CEIMINAL LAW CONSOLIDATION ACTS, 1861 ; with an Introduction and practical Notes, illustrated by a copious reference to Cases decided by the Court of Criminal Appeal. Together with Alphabetical Tables of Offences, as well those punishable upon Summary Conviction as upon Indictment, and including the Offences under the New Bankruptcy Act, so arranged as to present at one view the particular Offence, the old or new Statute upon which it is founded, and the Limits of Punishment; and a full Index. By James Edward Davis, Esq., Barrister-at-Law. 12mo. 10s. cloth. 1SG1 26 LAW WORKS PUBLISHED BY SHELFORD'S SUCCESSION, PROBATE AND LEGACY DUTIES.— Second Edition. THE LAW relating to the PEOBATE, LEGACY and SUCCESSION DUTIES in ENGLAND, IEELAND and SCOTLAND, including all the Statutes and the Decisions on those Subjects: with Forms and Official Eegulations. By Leonard Shelfoed, Esq., of the Middle Temple, Barrister-at- Law. The Second Edition, with many Alterations and Additions. 12mo. 16s. cloth. 1861 BAYLIS'S LAW OF DOMESTIC SERVANTS. By Monckton. — Fourth. Edition. THE EIGHTS, DUTIES AND EELATIONS OE DOMESTIC SERVANTS AND THEIR MASTERS AND MISTRESSES. With a short Account of Servants' Institutions, &c, and their Advantages. By T. Henry Bayeis, M.A., Barrister-at-Law, of the Inner Temple. Fourth Edition, with considerable Additions, by Edward P. Monckton, Esq., B.A., Barrister-at-Law, of the Inner Temple. Fscap. 8vo. 2s. 1873 SEABORNE'S LAW OF VENDORS & PURCHASERS. Third Edition. A CONCISE MANUAL of the LAW of VENDOES and PURCHASERS of REAL PROPERTY. 3rd Edition. By Henry Seaborne, Solicitor. Post8vo. 12s. 6d. cloth. 1884 *** This work is designed to furnish Practitioners with an easy means of reference to the Statutory Enactments and Judicial Decisions regulating the Transfer of Real Pro- perty, and also to bring these authorities in a compendious shape under the attention of Students. " The book before us contains a good the most important branches of the deal, especially of practical inf omiation law. The student will find this book as to the course of conveyancing matters a useful introduction to a dry and in solicitors' offices, which may be use- difficult subject." — Law Examination ful to students." — Solicitors' Journal. Journal. " We will do Mr. Seaborne the justice " Intended to furnish a ready means to say that we believe bis work will be of access to the enactments and deci- of some use to articled and other clerks sions governing that branch of the law." in solicitors' offices, who have not the —The Times. opportunity or inclination to refer to the " The book will be found of use to the standard works from which his is com- legal practitioner, inasmuch as it will, piled." — Law Journal. so far as regards established points of "The value of Mr. Seaborne's book law, be a handier work of reference than consists in its being the most concise the longer treatises we have named." — summary ever yet published of one of Athenceum. TOMKINS' INSTITUTES OF ROMAN LAW. THE INSTITUTES OF EOMAN LAW. Part I., containing the Sources of the Roman Law and its External History till the Decline of the Eastern and "Western Empires. By Frederick Tomkins, M.A., D.C.L., Barrister-at-Law, of Lincoln's Inn. Roy. Svo. 12s. (To he completed in 3 Parts. ) 1867 MESSRS. BTJTTERWORTH, 7, FLEET STREET, E.C. 27 MACASKIE'S LAW OF BILLS OF SALE. THE LAW EELATING TO BILLS OF SALE : with Notes upon Fraudulent Assignments and Preferences, and the Doctrine of Eeputed Ownership in Bankruptcy; and an Appendix of Statutes, Precedents and Forms. By Stuart Macaskie, of Gray's Inn, Barrister-at-Law, some time holder of a First Class Studentship, Certificate of Honour, and the Barstow Law Scholarship of the Four Inns of Court, &c. Post 8vo. 8s. cloth. DREWRY'S EQUITY PLEADER. A CONCISE TEEATISE on the Principles of EQUITY PLEADING, with Precedents. By C. Stewart Dee wry, Esq., of the Inner Temple, Barrister-at-Law. 12mo. 6s. boards. 1858 GAIUS' ROMAN LAW.— By Tomkins and Lemon. (Dedicated by permission to Lord Chancellor Hatherley.) THE COMMENTARIES of GAIUS on the EOMAN LAW: with an English Translation and Annotations. By Frederick J. Tomkins, Esq., M.A., D.C.L., and William George Lemon, Esq., L.L.B., Barristers-at-Law, of Lincoln's Inn. 8vo. 27s. extra cloth. 1869 MOSELEY ON CONTRABAND OF WAR. WHAT IS CONTEABAND OP WAR AND WHAT IS NOT. A Treatise comprising* all the American and English Authorities on the Subject. By Joseph Moseley, Esq., B.C.L., Barrister-at-Law. Post Svo. 5s. cloth. 1861 SMITH'S BAR EDUCATION. A HISTOEY of EDUCATION for the ENGLISH BAE, with SUGGESTIONS as to SUBJECTS and METHODS of STUDY. By Philip Anstie Smith, Esq., M.A., LL.B., Barrister-at-Law. 8vo. 9s. cloth. 1860 LUSHINGTON'S NAVAL PRIZE LAW. A MANUAL of NAVAL PEIZE LAW. By Godfrey Ltjshington, of the Inner Temple, Esq., Barrister-at-Law. Royal 8vo. 10s. 6d. cloth. 1866 28 LAW WORKS PUBLISHED BY STEPHEN'S LAW OF SUPPORT AND SUBSIDENCE. THE LAW OF SUPPORT AND SUBSIDENCE. By Harry Lushington Stephen, LL.B., of the Inner Temple, Barrister-at-Law. Just published in 1 vol. post 8vo. 5s. cloth. 1890 WAGGETT ON PATENTS. THE LAW AND PEACTICE RELATING TO THE PBOLONGATION OF THE TEEM OP LETTEES PATENT FOE INTENTIONS, with full Table of Cases and Synopsis of Colonial and Foreign Laws, &c. By J. F. Waggett, M.A., Oxon., of Lincoln's Inn, Barrister-at-Law. In 1 vol. 8vo., 7s. cloth. 1887 HEALES'S HISTORY AND LAW OF PEWS. THE HISTOEY and the LAW of CHUECH SEATS or PEWS. By Alfred Heaxes, F.S.A., Proctor in Doctors' Commons. 2 vols. 8vo. 16s. cloth. 1872 BRABROOK'S WORK ON CO-OPERATION. THE LAW and PEACTICE of CO-OPEEATIVE or INDUSTBIAL and PEOVIDENT SOCIETIES ; including the Winding-up Clauses, to which are added the Law of France on the same subject, and Eemarks on Trades Unions. By Edwaud W. Brabrook, F.S.A., of Lincoln's Inn, Esq., Barrister-at-Law, Assistant-Eegistrar of Friendly Societies in England. 6s. cl. 1869 COOMBS' SOLICITORS' BOOKKEEPING. A MANUAL OF SOLICITORS' BOOKKEEPING: comprising practical exemplifications of a concise and simple plan of Double Entry, with Forms of Account and other Books relating to Bills of Costs, Cash, &c, showing their operation, giving directions for keeping, posting and balancing them, and instructions for drawing costs. Adapted for a large or small, sole or partnership business. By W. B. Coombs, Law Accountant and Costs Draftsman. 1 vol. Svo. 10s. 6d. cloth. . 1868 *»* The various Account Fools ([escribed in the above work, the forms of which are copy- right, may be had from the Publishers, at the prices stated in the work at page 274. MESSRS. BUTTERWORTH, 7, FLEET STREET, E.C. 29 WIGRAM ON WILLS.— Fourth Edition. AN EXAMINATION OF THE EULES OF LAW respecting the Admission of EXTEINSIC EVIDENCE in Aid of the INTEEPEETATION of WILLS. By the Eight Hon. Sir James Wigram, Knt. The Fourth Edition, prepared for the press, with the sanction of the learned Author, by W. Knox Wigram, M.A.,of Lincoln's Inn, Esq., Barrister-at-Law. 8vo. lls.cl. 1858 LAWRENCE'S PARTITION ACTS, 1868 and 1876. THE COMPULSOEY SALE OF EEAL ESTATE under the POWEES of the PAETITION ACT, 1868, as Amended by the Partition Act, 1876. By Philip Henry Lawrence, of Lincoln's Inn, Esq., Barrister-at-Law. 8vo. 8s. cloth. 1877 "Mr. Lawrence is evidently ac- suit. On the sale of land the whole quainted with his subject. He explains subject is ably treated, and the book the state of the law previous to the contains, amongst other things, a valu- Statute of 1S6S, and the means by which able selection of leading cases on the under it persons may now maintain a subject." — Justice of the Peace. BUND'S LAW OF SALMON FISHERIES. THE LAW relating to the SALMON FISHEEIES of ENGLAND and WALES, as amended by "The Salmon Fishery Act, 1873 ; " with the Statutes and Cases. By J. W. Willis Bund, M.A., L.L.B., of Lincoln's Inn, Barrister-at-Law, Vice-Chairman Severn Fishery Board. Post 8vo. 15s. cl. 1876 " Mr. Bund has done the work excel- • " We have always found his opinion lently well, and nothing further in this sound, and his explanations clear and way can be desired." — The Field. lucid." — Land and Water. TROWER'S CHURCH BUILDING LAWS, Continued to 1874. THE LAW of the BUILDING of CHUECHES, PAESONAGES, and SCHOOLS, and of the Division of Parishes and Places. By Charles Francis Trower, M.A., of the Inner Temple, Esq., Barrister-at-Law, late Fellow of Exeter College, Oxford, and late Secretary of Presentations to Lord Chancellor Westbury. Post 8vo. 9s. cloth. 1874 *%* The Supplement may be had separately, price Is. sewed. 30 LAW WORKS PUBLISHED BY OKE'S MAGISTERIAL SYNOPSIS.— Fourteenth Edit. THE MAGISTEEIAL SYNOPSIS : a Practical Guide for Magistrates, their Clerks, Solicitors, and Constables; com- prising Summary Convictions and Indictable Offences, with their Penalties, Punishments, Procedure, &c; alphabetically and tabularly arranged : with a Copious Index. Fourteenth Edition. Harry Lushington Stephen, Barrister- at-Law. In By 2 vols. 8vo. 58s. cloth. "Oke's Magisterial Synopsis has so long held the field as a standard work for all who have to deal with petty- sessional matters, that the appearance of a new edition is most welcome, and especially welcome when we find that this edition does not follow the con- ventional process of continued and ill- digested repetition by which so many standard works gradually sink into oblivion. As Mr. H. L. Stephen says in a preface which is particularly worthy of attention, it has been his aim to save ' Oke's Magisterial Synopsis ' from such an untoward fate. We are of opinion that the reputation of this old-esta- blished work of reference will be greatly enhanced by the capable handling of the editor. First and foremost, its bulk has been reduced by some 600 pages, in itself a great editorial labour when we remember the care requisite in excision that nothing of value may be lost, and the many additional matters which have fallen within the purview of justices in petty sessions by the numerous and ever-increasing bulk of the statute law since the last edition of Oke appeared. " Mr. Stephen's Preface is interesting and refreshing, and the whole work teems with evidences of his carefid, accurate, and well-judged handling of an intricate and difficult subject. We strongly recommend the result of his labours upon this standard work to our readers. Not the least merit is the ex- haustive index, with its well-selected titles, extending over more than 100 pages." — Law Journal. " The work of revising the 14th edi- tion of ' Oke's Magisterial Synopsis ' (London : Butterworths) has been carried out by Mr. Harry Lushington 1893 Stephen, LL.B., and one of the most satisfactory results of a very able edi- torship is the reduction of its size by something like 600 pages. This has been partly accomplished by the exci- sion from the tables in the first volume of the column giving the limit of time within which proceedings can be taken for the punishment of an offence. The exceptions to the now almost invariable six months are referred to in foot-notes. The changes effected in procedure by the Summary Jurisdiction Acts of 1879 and 1884 have rendered the re-writing of the introductions to each part neces- sary, and here again Mi - . Stephen has saved, more space Jby dealing at once with much that was formerly scattered in foot-notes throughout the work, such ' as the procedure to be followed in ap- pealing from a summary conviction. We are glad to note, too, that statutes have been epitomised as much as pos- sible, the actual words only being quoted where it is absolutely necessary. Part III., in which this method has been chiefly carried out, is consequently almost entirely re-written ; metropoli- tan matters are not dealt with, and everything not strictly relevant has been carefully excluded. Synopses of all recent statutes, and also of offences under the Factory Act, the Army Act, and others of a like nature, have been added, and the Index has been re- written on the original lines. The Table of Cases is very complete, and contains references to the principal re- ports. We congratulate Mr. Stephen on the successful accomplishment of an arduous task. It may be added that the work is dedicated to Sir James Fitzjames Stephen." — Law Times. OKE'S MAGISTERIAL FORMULIST.— Seventh. Edit. THE MAGISTEEIAL EOEMULIST : being a Com- plete Collection of Porms and Precedents for practical use in all Cases out of Quarter Sessions, and in Parochial Matters, by- Magistrates, their Clerks, Attornies and Constables. Seventh Edition, enlarged and improved. By Harky Lushington Stephen, Barrister-at-Law. In 1 vol. 8vo. 35s. cloth. 1893 MESSRS. BTJTTERWORTH, 7, FLEET STREET, E.C. 31 OKE'S HANDY BOOK OF THE GAME LAWS.— 3rd Ed. A HANDY BOOK OF THE GAME LAWS; containing the whole Law as to Game, Licences and Certificates, Gun Licences, Poaching Prevention, Trespass, Rabbits, Deer, Dogs, Birds and Poisoned Grain, Sea Birds, Wild Birds, and. Wild Fowl, and the Bating of Game throughout the United Kingdom. Systematically arranged, with the Acts, Decisions, Notes and Fonns, &c. Third Edition. With Supplement to 1881, con- taining the Wild Birds Protection Act, 1880, and the Ground Game Act, 1880. By J. W. Willis Bund, M.A., LL.B., of Lincoln's Inn, Esq., Barrister-at-Law; Vice-Chairman of the Severn Fishery Board. Post 8vo. 16s. cloth. 1881 * # * The Supplement may be had separately, 2s. 6d. sewed. OKE'S LAWS AS TO LICENSING INNS, &c— 2nd Edit. THE LAWS AS TO LICENSING INNS, &c. ; containing the Licensing Acts, 1872 and 1874, and the other Acts in force as to Ale-houses, Beer-houses, Wine and Refresh- ment-houses, Shops, &c, where Intoxicating Liquors are sold, and Billiard and Occasional Licences. Systematically arranged, with Explanatory Notes, the authorized Forms of Licences, Tables of Offences, Index, &c. By George C. Oke. 2nd edit, by W. C. Glen, Esq. , Barrister-at-Law. Post Svo. 10s. cloth. 1871 OKE'S FISHERY LAWS.— Second Edition by Bund. THE EISHEEY LAWS : A Handy Book of the Fishery Laws : containing the Law as to Fisheries, Private and Public, in the Inland Waters of England and Wales, and the Fresh- water Fisheries Preservation Act, 1878. Systematically ar- ranged : with the Acts, Decisions, Notes, and Forms, by George C. Oke. Second Edition, with Supplement containing the Act of 1884, with Notes, by J. W. Willis Bund, M.A., LL.B., of Lincoln's Inn, Barrister-at-Law, Chairman of the Severn Fishery Board. Post 8vo. 6s. cloth. 1884 OKE'S LAW OF TURNPIKE ROADS.— Second Edit. THE LAW OF TUENPIKE EOADS ; comprising the whole of the General Acts now in force, including those of 1861 ; the Acts as to Union of Trusts, for facilitating Arrangements with their Creditors; as to the interference by Railways with Roads, their Non-repair, and enforcing Contributions from Parishes, &c, practically arranged. With Cases, copious Notes, all the necessary Forms, and an elaborate Index, &c. By George C. Oke. Second Edition. 12mo. 18s. cloth. 1861 32 LAW WORKS PUBLISHED BY CLERKE AND BRETT'S CONVEYANCING ACTS.— Third Edition. THE CONVEYANCING ACTS, THE VENDOE AND PURCHASER ACT, THE SOLICITORS' REMUNERATION ACT, and the General Order made thereunder ; with Notes and an Introduction. By Aubrey St. John Clerke, B.A., and Thomas Brett, LL.B., B.A., both of the Middle Temple, Esquires, Barristers-at-Law. Third Edition. Just published, post 8vo., 12s. 6d. cloth. 1889 " This little book is one of the most useful works on the Conveyancing Acts, and with students, perhaps, the most popular." — Jurist, August, 1839. •' The third edition of Messrs. Clerke & Brett's work on the Conveyancing Act will deservedly maintain the high reputation gained by the former edi- tions. The cases are well noted up to date."— Law Times, July 27, 1889. " We are glad to welcome, after the lapse of several years, a new edition of this excellent work. We can commend the book as an extremely handy and complete edition of the Acts." — Solici- tors' Journal, July 27, 18S9. " We do not think the student could have a better work to assist him in his study of these all-important Acts, and we most heartily commend the work to our readers' attention."— Law Students' Journal, August, 1889. "This volume deserves hearty com- mendation, for the work throughout is characterized by conciseness in arrange- ment, patient labour in research, and scholarly accuracy in compiling. All recent cases have been incorporated in the work, so far at least as our perusal has served as a test, their precise effect given, and, as the authors say, much in the nature of conjectural interpretation in the previous editions has now been replaced by the authority of express decision. The result is eminently satis- factory."— Pump Court, Aug. 21, 1889. " The first edition of this book was published in 1881, and it became evident that its combination of topic and treat- ment would make it popular. That it was capable of expansion is shown by the fact that the authors have added, more than two hundred and fifty cases in the present edition. The cases bear- ing directly on the Act are to be found in their proper places, and the authors continue their practice of discussing questions suggested by the sections dealt with in their notes. The table of cases is admirably full, giving the re- ferences to all the reports besides those which the authors, under a mistake wliich it is hard to kill, call the autho- rized reports. The index is good, ex- cept for its referring back to the table of contents under the head of the Acts dealt with." — Law Journal, August 17, 1889. RUEGG'S EMPLOYERS' LIABILITY ACT.— Second Edition. A TEEATISE upon the EMPLOYERS' LIABILITY ACT, 1880, with Rules, Eorms and Decided Cases. By A. H. Ruegg, of the Middle Temple, Barrister- at-Law. Second Edition. 1 vol. post 8vo. 7s. 6d. cloth. 1892 MESSRS. BUTTERWORTH, 7, FLEET STREET, E.C. 33 HYDE'S RATING APPEALS. EEPOETS OF EATING APPEALS heard during 1886 — 1890 before the Queen's Bench. Division and Court of Appeal and the Assessment Sessions and London Quarter Sessions, with a Digest of the Practice, and Appendix of Statutes, &c. By Walter C. Ryde, M.A., of the Inner Temple, Barrister-at-Law. Just published, in 1 vol., demy 8vo., 18s. 1890 HUNT'S BOUNDARIES, FENCES & FORESHORES.— Third Edition. A TEEATISE on the LAW of BOUNDAELES and FENCES in relation to the Sea-shore and Sea-bed; Public and Private Eivers and Lakes ; Mines and Private Properties Generally ; Railways, Highways, and other Ways and Roads, Canals, and Waterworks ; Parishes and Counties ; Inclosures, &c. Together with the Rules of Evidence and the Remedies applicable thereto, and including the Law of Party- walls and Party-structures, both Generally and within the Metropolis. Third Edition. By Archibald Brown, Esq., of the Middle Temple, Barrister-at-Law. In 1 vol. post 8vo. 14s. cloth. 1 884 " There are few more fertile sources the seashore and the subjects of sea of litigation than those dealt with in walls and commissions of sewers." — Mr. Hunt's valuable book. It is sum- Law Times. cient here to say that the volume ought "Mr. Hunt chose a good subject for to have a larger circulation than ordi- a separate treatise on Boundaries and narily belongs to law books, that it Fences and Rights to the Seashore, and ought to be found in every counti-y we are not surprised to find that a gentleman's library, that the cases are second edition of his book has been Drought down to the latest date, and called for. The present edition contains that it is carefully prepared, clearly much new matter. The chapter espe- written and well edited." — Law Mag- cially which treats on rights of property azine. on the seashore, which has been greatly " It speaks well for this book, that it extended. Additions have been also has so soon passed into a second edition. made to the chapters relating to the That its utility has been appreciated is fencing of the property of mine owners shown by its success. Mr. Hunt has and railway companies. All the cases availed Mmself of the opportunity of a which have been decided since the work second edition to note up all the cases to first appeared have been introduced in this time, and to extend considerably their proper places. Thus it will be some of the chapters, especially that seen this new edition has a considerably which treats of rights of property on enhanced value." — Solicitors' Journal. COLLIER'S LAW OF CONTRIBUTORIES. A TEEATISE on the LAW OF CONTEIBUTOEIES in the Winding-up of Joint-Stock Companies. By Robert Collier, of the Inner Temple, Esq., Barrister-at-Law. Post 8vo. 9s. cloth. 1875 34 LAW WORKS PUBLISHED BY THE BAR EXAMINATION JOURNAL. THE BAE EXAMINATION JOURNAL, containing the Examination Papers on all the subjects, with Answers, set at the General Examination for Call to the Bar. Edited by A. D. Tyssen, B.C.L., M.A., Sir E. K. Wilson, Bart., M.A., and W. D. Edwards, LL.B., Barristers-at-Law. 3s. each, by post 3s. Id. Nos. 3, 6, 9, 10, 11, 12, 13, 14, 15 and 16, Hil. 1872 to Hil. 1878, both inclusive, may now be had. *.* No. 13 is a double number, price 6s., by post 6s. 2d. Nos. 1, 2, 4, 5, 7 and 8 are out of print. THE PRELIMINARY EXAMINATION JOURNAL, And Students' Literary Magazine. Edited by James Erle Benhatvt, formerly of King's College, London; Author of "The Student's Examination Guide," &c. Now Complete in Eighteen Numbers, containing all the Questions, with Answers, from 1871 to 1875, and to be had in 1 Vol. 8vo., price 18s. cloth. CUTLER'S CIVIL SERVICE OF INDIA. ON EEPOETING CASES for their PEEIODICAL EXAMINATIONS by SELECTED CANDIDATES for the CIVIL SERVICE of INDIA. Being a Lecture delivered on Wednesday, June 12, 1867, at King's College, London. By John Cutler, B.A., of Lincoln's Inn, Barrister-at-Law, Pro- fessor of English Law and Jurisprudence, and Professor of Indian Jurisprudence at King's College, London. 8vo. Is. BROWNING'S DIVORCE AND MATRIMONIAL PRACTICE. THE PEACTICE and PEOCEDUEE of the COUET for DIVORCE AND MATRIMONIAL CAUSES, including the Acts, Rules, Orders, Copious Notes of Cases and Eorms of Practical Proceedings, with Tables of Costs. By W. Ernst Browning, Esq., of the Inner Temple, Barrister-at-Law. Post 8vo. 8s. cloth. 1862 PHILLIPS'S LAW OF LUNACY. THE LAW CONCEENINQ LUNATICS, IDIOTS, and PERSONS OF UNSOUND MIND. By Charles P. PniLUPS, M.A., of Lincoln's Inn, Esq., Barrister-at-Law, and Commissioner in Lunacy. Post 8vo. 18s. cloth. 1858 MESSRS. BUTTERWORTH, 7, FLEET STREET, E.C. 35 BOWER'S DIRECTORS LIABILITY ACT, 1890, &c. THE DTEECTOES LIABILITY ACT, 1890, and other Statutory Provisions relating to Prospectuses of Public Com- panies, including the Common Law : with Notes and Copious Index. By George Spencer Bower, B.A., of the Inner Temple, Barrister-at-Law. Just published, in 1 vol., post 8vo., 9s. cloth. » 1890 STEVENS'S ELEMENTS OF MERCANTILE LAW. THE ELEMENTS OF MEECANTILE LAW. By T. M. Stevens, M.A., B.C.L., Barrister-at-Law. Just pub- lished, in 1 vol. post Svo. 10s. 6d. cloth. LAND LAWS. STATEMENT OE THE LAND LAWS. By the Council of the Incorporated Law Society of the United King- dom. Koyal Svo. Is. sewed ; by post Is. Id. 1886 TJNDERHILL'S "FREEDOM OF LAND." "EKEEDOM OF LAND," and WHAT IT IMPLIES. By Arthur Underhell, LL.D., of Lincoln's Inn, Barrister-at- Law. Svo. Is. sewed; by post Is. Id. HOLLAND ON THE FORM OF THE LAW. ESSAYS upon the FOEM of the LAW. 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