UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY r' ^ I 6 t. ELEMENTS OF THE LAW OF TORTS. ?iontlon: C. J. CLAY AND SONS, CAMBRIDGE UNIVERSITY PRESS WAREHOUSE, AVE MARIA LANE. CambriUse: DEIGHTON. BELL, AND CO. ILcipjig: F. A. BROCKHAUS. ELEMENTS OF THE LAW OF TORTS A TEXT BOOK FOR STUDENTS. BY MELVILLE M. BIGELOW, Ph.D. LECTOKER IN THE LAW SCHOOL OF THE UNIVERSITY OF BOSTON, O.S.A. % tv \-^ CAMBRIDGE: AT THE UNIVERSITY PRESS. 1889 [All Rights reserved.] T Camfarttigt: FEINTED BY C. J. CLAY, M.A. AND SONS, AT THE UNIVEESITY PBESS. c; ^ TO MY FEIENDS R W. MAITLAND and R. T. WRIGHT OF THE UNIVERSITY OF CAMBRIDGE TO THEM THIS BOOK IS DUE IIHIO^ PEEFACE. IT chanced some time ago that ray Elements of the Law of Torts found favour in the instruction of the Law School of the University of Cambridge, and that not long afterwards a suggestion came to me over sea, from those who had been using the book there, to prepare an English edition of it. More to say were needless. The University Press undertook the work ; the result is here. The present differs from the American edition in that it is a book of the law of England instead of the law of America. American cases are, indeed, cited here and there ; but that has always been done with a view to throwing light upon the student's work. In the changes made, English authorities and illustrations have been substituted very generally for American, and the English statutes have been referred to wherever they fall within the scope of the book. Some chapters have been almost wholly re-written ; chapter fourth, of Part I, appears here for the first time ; the Introduction is a new one. To. be a little more specific in regard to the use of American cases, these have been referred to (1) where there appeared to be doubt concerning the state of the English authorities, (2) where they served to fill a gap now and then left, and (3) where they afforded particu- larly good illustrations of the law. In one or two Vlll PREFACE. instances, indeed, American cases not always accepted in the United States have been noticed for the instrnc- tiveness of the principles involved. An instance may be seen on pp. 326 — 328, in regard to the Sunday laws. It is proper to repeat the statement made in the American edition, that the object of the book is to answer the question, as far as answer may be given, What is the legal conception of tort ? and then more definitely the question. What constitutes the specific torts of the English law ? Nothing else is attempted ; a book for the beginner should, I think, stop there. The end in view is sought by presenting and con- sidering three or four fundamental duties, in which are found the ' elements of the law of torts.' These are (1) the duty to refrain from fraud and malice, (2) certain absolute duties — duties, that is to say, in- dependent of any real or nominal attitude of mind, and (3) the duty to refrain from negligence ; a train of duties extending from positive attitudes around to negative. The order, it should perhaps be said, is entirely academic ; but it is believed to be natural. The cases made use of have been presented with special reference to their instructiveness. The fact cannot be too strongly urged upon the student's attention that the cases are the authorities, and that a mastery of the more important ones is indispensable to a competent knowledge of the law. M. M. B. Boston, Mass., Aug. 2, 1888. CONTENTS. PAGE Cases Cited . . xvii Introduction PART I. BREACH OF DUTY TO REFEAIN FROM FRAUD OR MALICE. CHAPTER I. § 1. § 2. §3. §4. §5. § 6. § 7. Introductory Of the Representatiou Of Defendant's Knowledge of Falsity Of Plaintift^'s Ignorance of Falsity . Of the Intention that the Representation should be acted upon Of Acting upon the Representation Of Slander of Title and Trade Marks 17 17 18 32 37 43 45 47 CONTENTS. CHAPTER II. Malicious Prosecution .... § 1. Introductory § 2. Of the Termination of the Prosecution § 3. Of the Want of Probable Cause . § 4. Of Malice § 5. Of Damage ..... § 6. Of Analogous Remedies . CHAPTER III. Conspiracy. § 1. Introductory ..... § 2. Of the Xatvire of Conspiracy . § 3. Of Damage CHAPTER IV. Malicious Interference with Contract § 1. Introductory ..... § 2. Of Malice 3. Of Damage ..... 4. Conclusion : Contract not Property PAGE 52 52 53 58 67 68 69 72 72 74 76 76 76 76 79 80 CHAPTER V. Slander and Libel § 1. Introductory ........ § 2. Of the Interpretation of Language § 3. Of the Publication of Defamation and Special Damage ........ § 4. Of the Imputation of having Committed a Crime . § 5. Of the Imputation of having a Contagious or Infectious Disease of a Disgraceful Kind . § 6. Of an Imputation affecting the Plaintiff in his Office, Business, or Occupation .... § 7. Of an Imputation tending to Disinherit the Plain- tiff § 8. Of an Imputation conveyed by Writing, Printing, or Representation ; that is, of Libel . § 9. Of the Truth of the Charge § 10. Of Malice and Privileged Communications . 81 81 82 84 86 87 88 90 91 92 93 CONTENTS. XI PART II. BREACH OF ABSOLUTE DUTY. Assault and Battery § 1- § 2. § §5. §6. CHAPTER I. PAGE 115 Introductory 115 Of Assaults 115 Of Batteries 118 Of Justifiable Assault : Self-clefeuce : ' Son Assault Demesne' 123 Of Violence to or towards One's Servants . .126 Of Felony 129 CHAPTER 11. False Imprisonment .... § 1. Introductory .... § 2. Of the Nature of the Restraint § 3. Of Arrests with Warrant § 4. Of Arrests without Warrant . CHAPTER III. Enticement and Seduction § 1. Introductory Of Master and Servant ex Contractu Of Master and Servant ex Gratia . Of Parent and Child Of Guardian and Ward . Of Husband and Wife . 2. 3. 4. 5. 6. CHAPTER IV. Trespasses upon Property .... § 1. Introductory § 2. Of Possession § 3. Of what constitutes Tresjoass to Property 131 131 131 134 150 157 157 158 IGO 162 168 169 176 176 176 189 Xll CONTENTS. CHAPTER V. PAGE Conversion 198 § 1. Introductory 198 § 2. Of Possession 199 § 3. Of what constitutes Conversion .... 204 CHAPTER VI. Infringement of Patents and Copyrights § 1. Introductory ..... § 2. Of Patents for Invention § 3. Of Trade Marks .... § 4. Of Copyrights .... 217 217 218 228 228 CHAPTER VII. Violation of Rights of Support 240 § 1. Introductory 240 § 2. Of Lateral Support 240 § 3. Of Subjacent Support 247 CHAPTER VIII. Violation op Water Rights 251 § 1. Introductory 251 § 2. Of Usufruct and Reasonable Use of Streams . 251 § 3. Of Sub-surface Water 255 CHAPTER IX. Nuisance 256 § 1. Introductory 256 § 2. Of what constitutes a Nuisance . . . .256 CHAPTER X. Damage by Animals 266 § 1. Introductory 266 § 2. Of Notice of Propensity to do Damage . . . 266 § 3. Of Escape of Animals 269 CHAPTER XI. Escape of Dangerous Things 270 § 1. Introductory 270 § 2. Of the Nature of the Protection Required . . 270 CONTENTS. Xlii PART III. BEEACH OF DUTY TO EEFEAIN FEOM NEGLIGENCE. PAGE Negligence 279 § 1. Introductory 279 § 2. Of the Legal Conception of Negligence . . . 279 § 3. Of Innkeeper and Guest 284 § 4. Of Bailor and Bailee 285 § 5. Of Professional Services 291 § 6. Of the Liability of Agents, Servants, Trustees, and the Like 295 § 7. Of Public Bodies and Public Officers . . . 302 § 8. Of the Use of Premises 304 § 9. Of Notice 322 § 10. Of Contributory Negligence 323 § 11. Of Intervening Forces 331 STUDIES IN PLEADING 345 INDEX 355 ABBREVIATIONS OF AMERICAN REPORTS CITED. [Unless otherwise indicated below, the Eeports are of cases decided by courts of last resort.] Ala Alabama. Barb Barbour, New York, intermediate. Blackf Blackford, Indiana, Conn Connecticiat. Cowen New York, intermediate and of last resort. Cush Gushing, Massachusetts. Denio New York, intermediate and of last resort. Duer New York (City), intermediate. Dutch -...Butcher, New Jersey, intermediate and of last resort. Eng English, Arkansas. Gratt Grattan, Virginia. Halst Halstead, New Jersey. Heisk Heiskell, Tennessee. How Howard, Supreme Court of United States. Humph Humphreys, Tennessee. Ill Illinois. Ind Indiana. Ired IredeU, North Carolina. Johns Johnson, New York, intermediate and of last resort. Kelly Georgia. Keyes New York. Ky Kentucky. Ijans Lansing, New York, intermediate. ABBREVIATIONS OF AMERICAN REPORTS CITED. XV Mason Circuit Court of United States, intermediate Federal Court. Mass Massachusetts. Met Metcalf, Massachusetts. Met. (Ky.) Metcalf, Kentucky. Mich Michigan. N. H New Hampshire. N.J New Jersey. See Dutcher ; Halstead. N.Y ..New York. Ohio St Ohio State. Penu. St Pennsylvania State. Pick Pickering, Massachusetts. E.I Rhode Island. Eob Robertson, New York (City), intermediate. Scam Scammon, Illinois. Smedes & M Smedes & Marshall, Mississippi. Smith, E. D New York (City), intermediate. Story Circuit Court of United States, intermediate Federal Court. Strobh Strobhart, South Carolina. Tenn Tennessee. U. S United States. Vt Vermont. Wall Wallace, Supreme Court of United States. Wall. C. C Wallace, Circuit Court of United States, intermediate Federal Court. Wend Wendell, New York, intermediate and of last resort. Wheat Wlieaton, Supreme Court of United States. Wis Wisconsin. OTHER ABBREVIATIONS. Div. (Ch. Div., Q. B. Div., &c.) = decision by Court of Appeal. D. (Ch. D., Q. B. D., &c.) = decision by Divisional Court or by single judge. L. C. Torts = Bigelow's Leading Cases on Torts. B. T. NOTANDA. Mr Herbert Stephen strongly urges that the effect of the decision in Abrath v. North-eastern Ey. Co., 11 App. Cas. 247, is to give to the jury the right to determine what constitutes probable cause (in cases, of course, not settled by law) in suits for malicious prosecution or for false imprisonment. Stephen, Malicious Prosecution, ch. 7 ; to which a reference should be made on pp. 67 and 153 of this book. The reader is requested to substitute the word ' fraudulent ' for ' artful ', in line 2, p. 17 ; to insert the word ' distinctively ' between 'be' and 'proved', end of middle paragraph, p. 70; and to add to note 2, p. 82, the following : As to libel see Fox's Act, 32 Geo. III. c. 60. The case of Whalley v. Lancashire Ey. Co., 13 Q. B. Div. 131, may be added to note 4, p. 259. LIST OF CASES CITED. ] PAGE PAGE Abrahams v. Kidney . 164, 165 Anstin v. Dowling 146 Abratli v. North-eastern Ey. V. Great Western Co xvi, 6e !, 94 Ey. Co. . . 335 Absor V. French . . • 195 Ayer v. Bartlett . . . 183 Albany Sav. Inst. v. Bnr- Ayre v. Craven ■ . . . 89 (Jick 40, 41 . 231 Bacon v. Sheppard . Albert v. Strange . . 188 Albro V. Jaquith . . 317 V. Towne . . . 56, 64 Alclred v. Constable . 205 Badger v. Nichols , 22 Alexander v. Southey 216 Badische Aniliu Fabrils V. Allen V. Crofoot . . 196 Levinstein . . . , , 226 V. Wright . . 156 Baglehole v. Walters . , 42 Alton V. Midland Eaih vay Baird v. Williamson . , 272 Co 128, 334, 335 Baker r. Bolton . . , 129 Ames V. Union E. Co. . 335 Ball, Ex parte . . . , 130 Amick V. O'Hara . . , 269 Balston v. Bensted . . 255 Andre v. Johnson , 123 Bamford v. Turuley . 258 ,259 Andrews v. Harris . . 142 Barfield v. Nicholson , 233 Arkwright v. Newbold 31, 32 Barker v. Braham . 146 Armistead v. Wilde . . 284 Barley v. Walford , 34 Armory v. Delamirie . 201 Barnes v. Allen . . , 172 Armstrong v. Lancasl lire V. Ward . . . 307 Ey. Co 336 337 Barnett v. Guildford . , 187 Arundell v. Wliite 55 Barnstable v. Thacher , 179 Ash V. Dawnay 195 Barratt v. Price . 137 Ashby V. White . . 303 BartonshiU Coal Co. Ashwell's Case . . . 204 V. Eeid .... 318, 319 Aston V. Blagrave 90 V. McGuire . . , 319 Atkinson v. Matteson 138 Batehelor v. Fortescue . I 305 2 306 XVlll LIST OF CASES CITED. PAGE Batson v. Donovan . , , 288 Baum't'. Clause . . . 87, 93 Baxendale v. McMurray . 261 Baxter v. Taylor . . 181 Baynes v. Brewster . .154 ,155 Beach v. Hancock , 117 Beal V. Eobeson . . , 66 V. South Devon By. Co. . . 287, 288 302 Beattie v. Ebury . . . 29 Beckwith v. Philby . . 153 Bellamy v. Burch . 90 Bellefontaine & I. E. Co. V. Snyder .... 339 Benjamin v. Storr 263 264 Bennet v. Bullock . 187 Bennett v. Allcott . 127 V. Smith . . 170 171 Bernina, The . . . . 337, 340 Bes^be v. Matthews . , 54 Bibley v. Carter . . . 242 Bigaouette v. Paulet . . 170 Bird V. Holbrook . 269, 305, 326 V. Jones . . . • 133 Birdsey v. Buttei'field . 27 Blackham v. Pugh . 107 Blake v. Barnard . . , 116 V. Lanyon . . 159, 334 Bliss V. Hall . . . , 259 Bloodworth v. Gray . . 87 Bloxam v. Hubbard . ■ . 215 Blyth r . Birmingham Wa ter- works Co. . . 260 V. Topham . . . 308 Bolch V. Smith . . . . 310 Bonomi v. Backhouse . 240, 241 Bostickt;. Rutherford . . 64 Bosworth V. Swansea . . 327 Boucicault v. Chatterton . 234 PAGE Bowen v. Hall 5, 77, 78, 79, 160 Bovill V. Pimm . . . 226, 227 Boyle V. Brandon .... 165 Bradbury v. Hotten 235, 236, 237 Bradlaugh v. Newdegate . 71 Bradley v. Fisher .... 304 V. Fuller ... 46, 47 Bradt v. Towsley .... 84 Bramwell v. Halcomb . 235, 236 Brannock v. Bouldin . . 75 Brass v. Maitland . . 289, 333 Bridge v. Grand June. Ey. Co 328 Bridges t'. Hawkesworth . 203 Briggs V. Taylor .... 287 Brinsmead v. Harrison . . 212 Bristol V. Wilsmore ... 2& Broad v. Ham ... 52, 60, 62 Broadbent r. Imperial Gas Co. . . . 258 V. Eamsbotham 254 Bowditch V. Balchin 154 Bromley v. Coxwell . V. Wallace . Brooks V. Curtis . . Broughton v. Jackson Brown v. Boorman . V. Kendall . . V. McGregor . Browulie v. Campbell Brushaber v. Stegemann Buck V. Aiken . . Buckley v. Gross . , Bulmer v. Bulmer Burke v. Broadway . Burroughes v. Bayne Burrows v. March Gas Co Burt V. Place . . Bushel V. Miller . Busst V. Gibbons . . 212 170, 175 . 246 . 59 . 288 121, 122 . 337 18, 33 . 132 . 184 180, 202 . 129 . 339 . 216 335, 336 61, 63, 64 . 204 . 59 LIST OF CASES CITED. XIX Butcher v. Butcher . Butterfield v. Forrester Byne r. Moore . . . Bywater v. Eichardson Bywell Castle, The . PAGE 178 328 56,69 42 328 299 231 143 332 82 266 55 Caffrey v. Darby . Caird v. Sime . . Calder v. Halket . Caledonian Ry. Co. v. Sprot 242, 250 Callahan v. Bean .... 338 CampbeU v. Spottiswoode 93, 110, 111 Canu V. Willson . . . 315, Capital Bank v. Henty . . Card V. Case Cardival v. Smith . . . Carleton v. Franconia Iron Co 312, 313 Carpenter v. Hale . . . 205 V. Tarrant . . 86 Cam;. Hood 110 Carratt v. Morley 142, 143, 145, 146 Carroll v. Hayward . . . V. Staten Island R. Co Carslake v. Mapledoram Carstairs v. Taylor . . . Carter v. Kingman . . . V. Towne .... Cary v. Longman .... Case V. De Goes . Cashill V. Wright . Cass V. Boston & L. E. Co Castrique v. Behrens. . Caswell V. Worth . . . Cavey v. Ledbitter . . 34 . 327 . 87 . 273 . 200 . 331 . 233 187, 188 284, 285 287 54 328 258 Central Ry. Co. v. Kisch 31, 32, 39 PAGE Chambers v. Bedell . . . 194 V. Caulfield . . 174 V. Donaldson . 178 V. Robinson . . 68 Chapman v. New Haven R. Co 337 V. Rothwell . . 312 Chappell V. Boosey . . . 234 Charitable Corp. v. Sutton 299 Chasemore v. Richards 5, 255, 271 Chauntler v. Robinson . . 245 Cheesman v. Esall . . . 201 Chicago Ry. Co. r. Ross . 320 Childers v. Wooler ... 32 Chrysler v. Canaday ... 25 Churchill v. Siggers ... 71 Cibber v. Sloper . . . . 175 Cincinnati Gazette Co. i\ Timberlake 100 Citizens' Bank v. First Nat. Bank 27 Clark V. Adie 225 V. Chambers . . 331, 338 V. Cleveland ... 138 V. Molyneux . . . 108 V. Rideout .... 200 Clarke v. Dickson ... 40, 43 V. Midland Ry. Co. . 309 Clement v. Maddick . . . 235 Clendon v. Dinneford . . 210 Cleveland E. Co. v. Terry . 336 Cliff V. Midland Eailway Co 309, 311 Clothier v. Webster ... 302 Clough V. North-western Ry . Co 206 Clowes V. Staffordshire Waterworks Co. ... 260 Cluff V. Mutual Ben. Life Ins. Co 124 XX LIST OF CASES CITED. PAGE Coaks V. Boswell .... 21 Cobbett V. Woodward . . 232 Codrington v. Lloyd . . . 147 Coffin V. Coffin 97 Coggs V. Bernard .... 286 Cole V. Maundy .... 192 V. Stewart .... 182 V. Turner 119 Coleman v. New York & N. H. E. Co 337 CoUen V. Wright . . 20, 35, 36 CoUett V. Foster .... 147 Collins V. Evans ... 32, 34 CoUis V. Selden . 315, 333, 334 Commonwealth v. Carey 154, 156 V. McLaughlin 154 Connolly v. Boston . . . 327 Cook V. Hartle 212 Coombs V. New Bedford Cordage Co. . . . 317, 319 Cooper V. Booth .... 71 V. Greeley .... 92 V. Harding . . . 145 V. Willomatt . 206, 210 V. Wooley .... 262 Coote V. Lighworth . . . 134 Corbett v. Brown ... 31, 32 Corby v. Hill 310 Cornish v. Stubbs ... 192 Cory V. Bath 327 Cotterell v. Jones .... 76 Cotton V. Wood .... 283 Coulter V. American Ex]). Co 329 Coward v. Baddeley . .121, 122 Cox V. Burbridge .... 267 Crafter v. Metrop. Ey. Co. . 283 Craig V. Hasell 71 Crawshay v. Thompson . . 50 Crepps V. Burden .... 149 PAGE 262 207 225 177 . 188 237, 239 243, 250 . 165 . 71 V. Crump V. Lambert Cuudy V. Lindsay . Curtis V. Piatt . . Cutts V. Spring Dabney v. Manning D'Almaine v. Boosey Dalton V. Angus . 242, Damon v. Moore . . Daniels v. Fielding . Danville Turnp. Co Stewart 337 Darley Coll. Co. v. Mitchell . 240 Davey v. South-western Ey. Co 307, 329 Davies v. Jenkins . . . 147 V. Mann . 325, 326, 328 Davis V. Eeeves .... 107 V. Eussell .... 153 V. Shepstone . . . Ill Davison v. Duncan . . . 101 Dawkins v. Paulet . . . 108 V. Eokeby ... 97 V. Saxe Weimar . 97 Dawson v. Chamney . . 284 Dean ?;. Keate . . . .281,290 V. Peel 102 De Crespigny v. Wellesley . 109 Delegal v. Highley . . 60, 61 Denton v. Great Northern Ey. Co 35 Dewey v. Osborn .... 187 Dews r. Eiley 142 Deyo V. Van Valkenburgh 139, 140, 148, 149 Dickinson v. Grand Junction Canal Co 255 Dicks V. Yates 232 Dinks V. South Yorkshire Ey. Co 308 LIST OF CASES CITED. XXI Dixon V. Bell . . . Dobell V. Stevens . . Dodd V. Holme . . Dodwell V. Burford . Doe V. Challis . . . V. Harlow . . . Donald v. Suckling . Donaldson v. Haldane Doorman v. Jenkins . Dougherty v. Stei^p . Dowling V. Hemmings Doyle V. Hort . . . V. Eussell . . Dublin & WicklowRy. Co Slattery 283,306,307, Dudgeon v. Thomson Duff V. Budd . . . Dunham v. Powers . Dunston v. Paterson . PAGE 282 26 242 119 187 187 209 294 287 189 246 37 139 310, 329 . 225 . 288 95, 96 . 135 Eager v. Grimwood . . . 164 Eaglesfield v. Londonderry 29 Earle v. Holderness . . . 212 Eaton V. Boston & L, R, Co. 336 Electric Tel. Co. v. Brett 225, 227 Elliott V. Pray 314 Ellis V. Loftus Iron Co. . . 269 Embrey v. Owen . 251, 252, 253 Emerson v. Davies . . . 238 Emmens v. Pottle . . . . 9, 92 Eno V. Del Vecchio . . . 246 Evans v. Carrington ... 21 V. Edmonds . . 32, 33 V. Walton . 161, 163, 164 Fairmount Eailway Co. v. Stutler 334 Farnsworth v. Garrard . . 290 V. Storrs . . 99 Farrant v. Barnes V. Thompson Farrar v. Beswick . . Farwell v. Boston & W, Co Filbert v. Hoff . . . Firbank v. Humphreys Fisher v. Bristow . . V. Prince . . V. Thirkell . . Fitzjohn v. Mackinder Fletcher v. Smith . . Flint V. Pike . . . Folsom V. Marsh . . Forde v. Skinner . . Forster v. Forster Foster v. Charles . . Fouldes V. Willoughby Foulkes V. Metropolitan Ey Co Fowler v. Holhns . Fox V. Mackreth . Frearson v. Loe . Freeman v. Cooke V. Venner Frierson v. Hewitt Fritz V. Hobson . Frogley v. Lovelace Fryer v. Kinnersley Fuller V. Fenner . V. Wilson . Gainsford v. Blachford Gallwey v. Marshall . Gannon v. Hargadon Garr v. Selden . . Gentry v. Madden George v. Johnson . V. Skivingtou Gibbons v. Alison PAGE 289, 333 182, 199 214 E. 317, 319 184 36 54 212 309 65 272 99 236, 237 119 165 45 204, 214 335 206 21 221, 224 44 46 69 263 191 108 84 26 27 88,90 259 96 210 42 332, 333 . . 71 XXll LIST OF CASES CITED. PAGE Giblin j;. McMulleu . .287,288 Godefroy v. Dalton ... 294 Goffin V. Donnelly ... 97 Goldsmid v. TunLridge Wells Com'rs .... 260 Gordon v. Harper . . . 199 Gott V. Pulsifer .... 110 Goubaud v. Wallace . . . 231 Graham v. Peat .... 177 Grainger v. Hill ... 70, 132 Gray v. Durland .... 167 V. North-eastern By. Co 307 V. Eussell .... 234 Green v. Elgie 147 Greenland V. Chaplin . , 325 Gregory v. Brunswick . 74, 76 V. Hill .... 125 V. Piper .... 190 Griffiths V. Dudley ... 322 V. Teetgen . . . 162 Grill V. General Colliery Co 287 Grinnell v. Wells .... 163 Griswold v. Sedgwick . . 136 Hall V. Corcoran . V. Fearnley . V. Hollander Halley v. Stanton Hallmark's Case . Halls V. Thompson Hamilton v. Boston Hammack v. White Hampton v. Brown Hankinson v. Bilby Hardcastle v. South shire Ey. Co. . Hare v. Miller Harper v. Luff kin . . 327 120, 121 . . 163 . . 87 . . 35 . . 38 . . 328 . . 283 . 181, 204 . . 82 Tork- . . 308 . . 98 . . 161 PAGE Harris v. Brisco . . . 71 V. Saunders . , 206 V. Smith . . . , 181 Harrison v. Bush . . . 109 V. North-eastern Ey. Co. . 305, 306 Hart V. Aldi-idge . . , 158 V. Frame . . . 292 293 V. Swaine . . . , 38 Hartley i\ Cummings , 160 Harvey v. Epes . . , . 211 V. Watson . . 173 174 Hastings v. Brown . . , 221 Hatch V. Lane . . . , 103 Hay V. Cohoes Co. . . 275 Haycraft v. Creasy . . 33, 34 Hayes v. Porter . . . 302 303 Heaven v. Pender . . 315, 381, 333 Heckert's Appeal . . , 297 Hedges v. Tagg . . , 162 Heermance v. James . . 170 Henderson v. Broomhead 95, 96 Henley v. Lyme Eegis 302, 303, 385 Henwood v. Harrison 110 Hewlett V. Cruchley . 65 Hibbard v. Thompson 295 Hilbery v. Hatton 206 Hill I'. Bateman . . 143 V. Yates 153 Hilton V. Granville . 241 Hinton v. Dibdin . . 287 Hiort V. Bott . 213 Hobson V. Todd . . 189 Hodges V. Windham , 175 Hogau V. Cregan . . 165 Ho22 I'. Ward . 152 Holcomb V. Eawlyns 187 Hole V. Barlow . . 257 LIST OF CASES CITED. XXUl PAGE HoUey v. Mix .... 136, 195 Hollins V. Fowler .... 204 Holly 17. Boston Gas Co. . 338 Holmes v. Mather 120, 121, 122 V. North-eastern Ry. Co 315 Hooper v. Lane .... 137 V. Truscott ... 94 Hoosac Tunnel Co. v. O'Brien 304 Hopkins v. Crowe . . . 149 V, Tanqueray . . 19 Hopper V. Eeeve .... 119 Hotten V. Arthur .... 232 Houck V. Wachter . . . 265 Houlden v. Smith . . . 144 Howe V. Finch .... 320 Howland v. Vincent . . . 307 Hughes V. Macfie .... 338 Humphries v. Brogden . . 248 Humphrys v. Stanfeild . . 91 Hunting v. Eussell . . . 179 Hurdman v. North-eastern Ry. Co 259 Hutcheson v. Peck 170, 171, 172 Hutchins v. Hutchins . 13, 73 Hyde v. Graham . . . . 191 V. Noble 200 Hyman v. Nye .... 285 Ihl V. Forty-second St. R. Co 340 Ilott V. Wilkes 269 Ilsley V. Nichols . . 195, 196 Indiana E. Co. v. Tyng . . 20 Insurance Co. v. Tweed . 332 Ireson v. Pearman . . . 293 Irwin V. Dearman . . . 169 Isaack v. Clark .... 211 Israel v. Brooks .... 64 Jackson v. Adams V. Smithson James v. Campbell . Janson v. Brown . . Jarmain v. Hooper . Jarrold v. Houlston . PAGE 83 266 121 269 148 232, 233 Jefferies v. Great Western Ry. Co Jefferys v. Boosey . . Jekyll V. Moore . . Jendwine v. Slade Jenings v. Florence . Joannes v. Bennett . Johnson v. Weedman Johnston v. Ewing . Johnston's Estate Joliffe V. Baker . . Jones V. Festiniog Ry V. Read . . . Jordan v. Money . . Co 201 231 97 25 71 108 211 228 300 32, 33 274 246 27 Kain u. Old 19 Kelly V. Byles 232 Kelsey v. Murphy .... 46 Kennedy v. Green .... 322 Killard v. Rooke . . . 320, 322 Knight V. Gibbs .... 107 V. Legh .... 181 Knights V. Quarles . . . 294 Lafayette R. Co. v. Huffman 338 Laidlaw v. Organ ... 21 Lake v. King 98 Lamb v. Stone .... 46 Lamphier v. Phipos . . 292, 295 Lancashire Wagon Co. v. Fitzhugh 210 Lancaster Co. Bank v. Smith 288 XXIV LIST OF CASES CITED. PAGE Langridge v. Levy . . . 333 Laughton v. Bishop of Sodor 103 Lawrence v. Obee .... 190 Leader v. Purday .... 233 Leather Cloth Co. v. Ameri- can Leather Cloth Co. . 48 Lee V. Jones .... 20, 23 Lemaitre v, Davis , . . 243 Leverick v. Meigs .... 296 Lewis V. Clement .... 100 V. FuUarton ... 233 V. Jones .... 29 V. Levy 100 Leyman v. Latimer ... 87 Liford's Case . . . 187, 189 Lister w. Ferryman 52, 59, 67, 153 Little V. Hackett .... 337 Lockhart v. Lichteuthaler . 336 Longman v. Winchester . 232 Longmeid v. HoUiday . . 334 Loomis V. Terry . . 268, 269 Lord V. Price 199 Losee v. Buchanan . . 271, 275 Louisville Canal Co. v. Murphy 339 Lowther v. Eadnor . . . 144 Lumby v. Allday .... 88 Lumley v. Gye . . 5, 77, 78, 79, 159, 160, 169 Lynch v. Knight . . V. Nurdin . . V. Smith . . Lysney v. Selby . . McAvoy V. Medina . V, Wright McCombie v. Davies . Macdougall v. Knight Macfadzen v. Olivant . 85, 169 . . 339 .339 ,340 • • 26 203 . , 43 . 206 . 100 . . 197 V. The McGiffin V. Palmer's Ship- building Co. . . Machin v. Geortner McLeod V. Jones . Madras Eailway Co. Zemindar . , Malachy v. Soper . Mangan r. Atterton Mauley v. Field . Manvell v. Thomson Manzoni v. Douglas Maple v. Junior Army Stores Marshall v. York and New- castle Ry. Co. . Martin v. Payne . Marzetti v. Williams Mason v. Hill . . Mathews v. Hursell Matthewson v. Stockdale Matts 17. Hawkins Maunder v. Venn . . Maxwell v. Hogg . . V. Palmerston May V. Burdett . . Maydew v. Forrester . May hew v. Herrick . Medbury v. Watson . Mellish V. Motteux . Mellor V. Watkins Mellors v. Shaw . . Menvil's Case . . . Merivale v. Carson PAGE 320 183 192 . 274 12, 49 , 338 . 162 . 169 . 283 232 . 335 . 163 . 283 . 252 181, 204 232 246 127 231 269 266 298 214 26 42 192 318 188 95, 110, 111 25. Merrifield v. Worcester . . 260 Mersey Docks v. Gibbs 302, 323 Metropolitan Bank v. Pooley 54, 71 Metropolitan Ey. Co. v. Jackson 283 Milan, The 337 Millar r. Tavlor .... 231 LIST OF CASES CITED. XXV Millen v. Fawdry . Miller v. Foley V. Proctor . Millington v. Fox . Mills V. Ai'mstroug Milwaukee E. Co. v. Miner v. Gilmonr . Mitchell V. Jenkins Mogul Shipping McGregor . . Mohney v. Cook . Moore v. Meagher V. Mourgue V. Robinson V. Westervelt Morgan v. Marquis V. Ravey . V. Vale of Ry. Co. V. Varick . Morison v. Salmon Morris v. Ashbee . Mortin v. Shoppee Munster v. Lamb . Murchie v. Black . Murgoo V. Cogswell Murray ■;;. Bogue . V. Hall . PAGE . 193 . 135 . 300 . 50 . 337 Arms . 287 252, 253, 254 . . 67, 68 Co. V. ... 73 ... 327 . 12, 85, 86 ... 298 .. . 181, 204 ... 304 ... 214 ... 284 Neath ... 319 ... 187 ... 50 ... 233 ... 118 . 95, 96, 97 ... 242 ... 269 ... 233 ... 185 Neilson v. Harford . . . 220 Nelson v. Liverpool Brewery Co 309 Newall, In re . . . . 219, 220 Newcomb v. Boston Protec- tive Dept 327 New World, The .... 287 Nichols V. Marsland . . 272, 273 Nicholson v. Coghill . . 62, 63 Nitroglycerine Case . . . 121 Nixon V. Jenkins .... 215 PAGE Norris v. Litchfield ... 326 North-eastern Ry. Co. v. Wanless . . . 283, 306, 329 North Pen. R. Co. v. Ma- honey 339 O'Donoghue v. Hussey Olmstead v. Miller Onslow V. Home . Oppenheun v. White Hotel Co. . . . Ormrod v. Huth . Osborne v. GUlett . V. North-western Ry. Co. Outcalt V. Burling Overeud v. Gibb . Oxley V. Holden . Page V. Robinson .... 182 Palmer v. Dewitt .... 234 Panton v. Williams . . 59, 67 Pappa V. Rose 304 Park V. Hammond . . . 298 Partridge v. Gilbert . . . 246 V. Scott .... 242 Pasley v. Freeman . 18, 26, 37, 44, 46 Pater v. Baker .... 49, 50 Paterson v. Wallace . . . 318 Pattison v. Jones . . 106, 108 Peake v. Oldham .... 82 Peard v. Jones 89 Pearse v. Coker .... 187 Pease v. Chaytor . . 143, 144 Peek V. Deny . . 30, 32, 33, 34 V. Guruey . . 21, 31, 47 Penn v. Bibby .... 219, 220 V. Present .... 183 Penruddock's Case . . . 194 . . 104 . . 85 . . 90 Lion 284, 285 . 32, 34 . . 129 . 330 . 200 301, 302 224, 225 XXVI LIST OF CASES CITED. PAGE Perham v. Coney .... 211 Peyton v. London . . . 245 Phillips V. Homfray . . . 129 Philp V. Squire .... 172 Philpott V. Kelley .... 210 Pickard v. Sears .... 211 Pickering v. Dowson ... 42 Pike V. Fay 28 Pilkington v. Scott ... 160 Pippet -v. Hearn .... 70 Pitt V. Donovan ... 49, 50 Pittsburgh E. Co, v. Devin- ney . 320 V. Vining 338 Pixley V. Clark .... 275 Playford v. United Kingdom Tel. Co 334 Plimpton V. Malcolmson . 219, 222, 223 Polhill V. Walter .... 45 PoUey V. Lenox Iron Works 212 Powell V. Evans .... 300 Prideaux v. Bunnet ... 25 Priestley v. Fowler . 317, 319 Proctor V. Webster ... 98 Purinton v. Chamberlain . 34 Pursell V. Horn .... 120 Puterbaugh v. Eeasor . . 336 Pym V. Great Northern Ey. Co 129 Quartz Hill Mining Co. v. Eyre 53, 69 Eadleyu. London andNorth- western Ey. Co. ... 329 Eandall v. Trimen . . 20, 36 Eawstron v. Taylor . . . 254 Eeading v. Eoyston . . . 178 Eeading's Case 184 Eeddie v. Scoolt . Eedgrave v. Hurd Eeese Mining Co. v Eegina v. Clarke . . V. Cotesworth V. James . . V. Saddler's Co. V. St George . V. Veley . . Eevenga v. Mackintosh Eex V. Abingdon . . V. Burdett . . . V. Creevy . . . Eeynell v. Sprye . . Eeynolds v. Kennedy Eich V. Pierpont . . Eichards v. Jenkins . V. Eose . . Eichardson v. Silvester Eiley v. Baxendale . V. Home . . . Eist V. Faux . . . Eoberts v. Connelly . V. Smith . . V. Wyatt . . Eobinson i\ May . . Eodgers v. No will . . Eogers v. Ai-nold . . V. Palmer . Eohan v. Sawin . . Eoope V. D'Avigdor . Eose V. Miles . , , Eoss V. Fedden . . Eowbotham v. Wilson Eoworth V. Wilkes , Eylands v. Fletcher . PAGE , 168 . 39, 41 Smith 32, 33 168 32, 30, 120 116 40 116 104 65 98 93 98 39 . 62 . 295 . 249 . 244 . 47 . 317 . 288 . 164 . 167 . 317 . 201 . 102 . 50 . 201 . 34 152, 153 . 130 263, 264 . 273 . 240 . 237 260, 271, 272, 275 St Helen's Smelting Co, v. Tipping . . . 258, 259, 261 LIST OF CASES CITED. XXVll PAGE Sampson v. Hoddinott 251, 252, 253 Sanborn v. Neilson , . . 175 Sankey v. Alexander . 30, 39 Sargent v. .... 167 V. Gile .... 208 Saunders v. Smith . . 234, 236 Savacool v. Boughton . . 141 Savil V. Eoberts ... 68, 73 Sayles v. Briggs .... 57 Schneider v. Heath ... 42 Schuneman v. Palmer . 172, 173 Scott u. Ely 136 V. Shepherd ... 332 V. Stansfield ... 95 Scribner v. Beach . . 123, 125 Seaman v. Bigg .... 89 V. Netherclift . 95, 96 Seton V. Lafone ... 20, 36 Severin v. Keppell . . . 216 Seward v. the Vera Cruz . Sheckell v. Jackson . . , Shergold v. Holloway . , Shipley v. Fifty Associates Shorland v. Govett . . Simar t). Canaday. . . Simmons v. Lillystone . V. Mitchell . . Simpson v. Holliday . . Sinclair v. Eldred . . . Singer Machine Co. v. Wil- son 50, 228 Singer Manuf. Co. v. Loog 228 Singleton v. Bolton ... 51 Six Carpenters' Case 195, 196, 129 101 140 271, 247 195 25 214 82 221 62 11)7 Smith V. Ashley . . . . 92 V. Chadwick . . 23, 26 V. Higgins . . . . 102 PAGE Smith V. Hughes .... 21 V. Kay 30 V. Ken wick. . . . 272 V. Land Corp. . 27, 31, 39, 40, 41 V. Midland By. Co. . 262 V North-western Ey. Co. . . . 225, 226 V. Smith .... 336 V. South-western Ey. Co. . . V. Stewart . V. Sydney . V. Thackerah V. Tett . . Snow V. Allen . . Solomon v. Vintner's Co South V. Denniston . Southcote V. Stanley Speight V. Oliviera . Spiers v. Brown . . Springfield v. Harris Stanley v. McGauran Standard Bank v. Stokes Starr v. Jackson . Stead V. Anderson Stebbins v. Eddy . Stedman v. Smith Steele i^. Brannan V. Southwick Stephens v. Myers V. Wilkins Stevens v. Midland Ey V. Sampson . Stockdale v. Hansard Stockley v. Horuridge Stoner v. Todd . . Story V. Walthew Stowe V. Thomas . . Stroyan v. Knowles . . 332 . 87 , 145 . 243 . 187 . 64 . 245 . 167 . 311 . 163 . 233 . 254 39, 40 . 246 . 181 . 225 . 25 . 247 . 100 . 92 . 118 . 140 68 . 99 . 98 . 75 219, 224 . 298 . 233 . 242 Co. XXVlll LIST OF CASES CITED. PAGE PAGE Suggs V. Anderson . . 123 Tuffu. Warman . 328 329, 330 Sutton V. Huffman . . . 164 TuUidge v. Wade . . . . 197 V. Johnstone . . 62 Turner v. Ambler . . . 59, 67 V. Wauwatosa . 327 V. Harvey. . . . 21 Swain v. Stafford . . . 60 V. Eobinson . .231,234 Sweeny v. Old Colony Ry. V. Sullivan . . . 99 Co.. . 306, 309, 310, 311, 329 i\ Winter . . . . 221 Sweet V. Benning . . . 234, 236 V. Sweet . . . 236 . 47 Ullee, In re . . . . . . 168 Swift V. Winterbotham United Telephone Co V. Sykes v. Dixon . . . 160 . 50, 51 Harrison .... . . 224 V. Sykes . . . Unwin v. Heath . . . . 226 Usill V. Hales . . . . . 100 Tarlton v. Fisher . . 139, 141 Tebbut V. Bristol & E. By. Van Brunt v. Schenck . . 187 Co . . 315 Vanderbilt v. Mathis . . 63, 67 Terry v. Hutchinson . 163, 164 Van Wyck v. Aspinwall . . 103 Terwilliger v. Wands . 84, 85 Vaughan v. Taff Vale Ry. Tharsis Sulphur Co. V. Co 273, 274 Loftus . . 304 Vernon v. Keys , . 25, 38, 39 Thomas v. Churton . . 96 Vincent v. Cornell . . 208 V. Quartermain e 322, 330 V. Stinehoiu- . . 121 V. Welch. . . . 221 V. Winchester . 333 Wait V. Eichardson . . . 186 Thompson v. Eose . . 216 Waite V. N. E. Ey. Co. 338, 340 V. Eoss 127, 163 Wakefield v. Buccleuch . . 241 V. Shackell . . 110 Wakelin v. South-western Thorley v. Kerry . . . 91 Ey. Co . . 283 Thorogood v. Bryan . . 336, 337 Wakeman i'. Eobinson . . 121 V. Eobinson . . 214 Walker v. British Guarantee Thrussell v. Handyside 315, 330 Assoc. , . 299 Thurston v. Hancock 241, 242 V. Cronin . . 78, 79, 80, Tickell V. Eead . . . 126 127, 158 Timothy v. Simpson . 155 Walsh V. Whiteley . . . 320 Todd V. Flight . . . 309 Walsham v. Stainton . . 75 Toole V. Young . 233 Walter v. Howe . . . . 232 Tolhausen v. Davies . 306 V. Sample . . . . 66 Tootle V. Clifton . . 260 V. Selfe . . . . 261, 262 Trusler v. Murray . 238 Ward V. Clark . . . . . 83 Tuberville v. Savage . 117 r. Hobbs . . . . 22 LIST OF CASES CITED. XXIX PAGE Wason, Ex parte .... 97 V. Walter 98, 99, 100, 101 Watkin v. Hall . . . 109 Watling V. Oastler . . 319 Watson V. Gray . . . . 245 V. McCarthy . . . 87 Weaver v. Ward . . . . 120 Webb V. Beavau . . . 82, 86 V. Hill . . . . 62, 63 Weblin v. Ballard . . . . 322 Webster v. Bailey . . . 42 V. Hudson EiverB. Co. . . . . 337 Weedon v. Timbrell . 173, 174 Wegmann v. Corcoran . . 220 Welfare v. London & B. Ry. Co . . 311 Wellock V. Constantine . . 130 Wells V. Abrahams . . . 130 Wennhak v. Morgan . . . 84 Wesson v. Washburn Iron Co . . 264 West V. Nibbs . . . . . 195 Western Bank v. Addie 34, 36, 40 West Loudon Bank v. Kit- son . 29 Weston V. Arnold . . . . 245 Whalley v. Lauc. Ey. Cc ). . xvi Wheatley v. Chrisman . . 252 Wheaton v. Peters . . 236 White V. Demary , . . . 216 V. Garden . . . . 207 Whitehead v. Greetham . . 294 Whitney V. Boardman . 42 V. Peckham . . 63 Wilkins v. Aikin . . . 237 Wilkinson v. Fairrie . . 315 V. Haygarth . 185 . 248 PAGE Willans v. Taylor ... 63 Williams v. Clouch ... 318 V. Esling . . 189, 190 V. Great Western Ry. Co. . . 806 V. Hill .... 86 V. Smith . . 145, 147 Wilson V. Brett .... 287 V. Goit 84 V. New Bedford . . 275 V. Newberry . . . 273 Wilton V. Webster . . 174, 175 Winsmore v. Greenbank 171, 172 Winter v. Henn .... 165 Winterbottom v. Derby . . 265 V. Wright . 334 Wood V. Boosey .... 233 V. Cooper .... 297 V. Leadbitter . . . 191 V. Waud .... 253 Woodleyv. Metropolitan Ry. Co 330 Wootton V. Dawkins . . . 269 Wren r. Weild . , . . . 50 Wright V. Court .... 137 V. Maiden E. Co. . 338 V. Eamscot . . . 269 Wyatt V. Barnard . . . 233 Wyndham v. Wycombe . . 175 Yarmouth v. France . . . 330 Yeates v. Prior .... 24 York & North Midland Ey. Co. V. Hudson .... 301 York V. Pease 99 Young V. Spencer .... 182 Zoebisch v. Tarbell . 314 INTEODUCTION. B. T. INTRODUCTION. For the purposes of one first approaching the subject, the term ' tort ' cannot be defined in language not itself needing definition. Indeed, no definition, helped out even by explana- tion, can convey a full conception of the meaning of such an expression as 'the law of torts'; nothing short of careful study of the specific torts of the law will suffice. The difficulty grows out of the fact that there is no such thing as a typical example, an actual tort, that is to say, which contains all the elements entering into every other. One is as perfect as another; and each of the torts of the law differs, not merely in point of fact from the rest, but in its legal constituents as well. Still, it is important to get some helpful conception, if possible, of the meaning of the term before entering upon the study of the particular torts. And fortunately there are some things in common to all ; which things too, if not at first sufficiently intelligible, may be explained in a way to make the matter instructive to the beginner, and prepare him the better for the more special study of the subject to follow. Putting, then, common features together in the way of definition, a tort may be said to be a breach of duty, 1—2 4 INTRODUCTION. fixed by law, and redressible by a suit for damages\ Each of the parts of the definition, however, will need explanation. Consider in the first place the phrase 'breach of duty. ' What does that mean ? The answer cannot be given directly and shortly. There is no constant factor in the 'duty' ; what would constitute a breach of duty in the case of one tort would not constitute it in the case of another. Still, the various duties involved in the different torts are capable of being grouped into some three or four classes, upon a basis not wanting in instructiveness. In one of these classes the breach of duty is stated in terms apparently significant of an actively guilty state of mind. This phase of the breach of duty may be manifested in either of two forms ; in one, the breach consists in the doing an act fraudulently ; in the other, in doing it maliciously. And without the facts upon which the conception of fraud or malice is predicated, there is no redress in damages ; that is, there is no tort. It should be said, however, and the fact should be well observed, that the legal way of stating a conclusion from facts is here and elsewhere often stronger than the facts in themselves seem to justify. The law looks to manifestations, and then, it may be, declares that they proceed fi^om fraud, malice, or other motive, and will hear no denial while the external facts stand ; in other words, the law has a dictionary of its own. 1 The term 'tort,' or its adjective 'tortious,' is sometimes used for convenience of cases in which there could be no action for damages; as, e.g., to express wrongful conduct. But the common acceptation of the term, especially in the exjDression 'law of torts,' is that of a wrong for which a suit for damages can be maintained. INTRODUCTION. Subject to this observation, fraud or malice is, then, an element of the right of action in the first class of cases. But it may be observed that, while the law of torts presents a very clear conception of fraud and its consequences, it has not determined, with any great precision, what constitutes malice^ ; and the law still hardly knows how to deal with admitted malice in respect of civil liability, outside of a few cases. As yet it is only feeling its way, and that in no perfectly assured direction I Fraud as a necessary element of liability in tort is confined almost entirely to cases of misrepresentation ; malice is a necessary element in actions for malicious prosecution, slander of title, so-called ^ and for interfer- ing with contracts*. Malice may also become a turning- point in actions for defamation, upon a defence that the occasion of the publication made it presumptively lawful ; but its presence or absence is immaterial to the right of action itself^. Another step will bring the student to a class of cases in which, though there is often a manifest inten- tion on the part of the defendant to do the very thing for which he has been sued, the law now takes no 1 See Part I. ch. ii. § 4. A wrongful motive or a wrongful act may, it seems, constitute malice. ■- Comp. Bowen v. Hall, 6 Q. B. Div. 333, with Chasemore v. Kichards, 7 H. L. Cas. 349, 388; L. C. Torts, 525. ■•* This subject, however, belongs on the whole to fraud, as will be seen in ch. i. 4 The last-named wrong refers to cases like Bowen ;;. Hall, 6 Q. B. Div. 333, following and explaining Lumley v. Gye, 2 El. & B. 216, and L. C. Torts, 306. See ch. iv. of Part I. 5 Actions for defamation (slander or libel) may thus be treated as marking a transition from the first to the second phase of tort. 6 INTRODUCTION, account of the state of his mind, supposed or actual-, so far as the right of action is concerned. The plaintiff's right of redress no longer depends upon his ability to shew, in any way, that the defendant did the act in question from wrongful motives or even intentionally ; and hence the want of such motives, or of intention, is no defence. Nor indeed is negligence, or the want of negligence, any necessary part of the case. Here, then, is a class of cases in which the tort con- sists in the breach of what may be called an absolute duty ; the act itself (in some cases it must have caused damage) is unlawful and redressible as a tort. The cases in which this is true are, speaking generally, cases of violence apparently about to be committed upon one's person \ or actually so committed ^ restraint of liberty^, interfering with the relation of master and servant with notice thereof ^ interfering in one way or another with the possession^, ownership®, or enjoyment^ of property, and failing to keep safely dangerous things. One other phase of the breach of duty remains. From regarding, first, a positive mental attitude of the defendant ; and secondly, disregarding the existence or non-existence of such an attitude ; the law, thirdly, passes over to cases in which it regards, as an essential fact, what may be considered as a negative mental attitude. In the class of cases now reached the law ^ Assault. ^ Battery. ^ False imprisonment. ^ E.g. enticing away or seducing a servant, s Trespass to lands or goods. ^ Conversion, 'trover' in the old law, a wrong relating to goods. 7 E.g. nuisance and interference with ancient rights. The latter wrong, however, is commonly treated as a case for injunction. INTRODUCTION. 7 takes account of the fact that the defendant has not directed proper attention to danger attending some act or omission of his, or, if he has, that he has not con- ducted himself as he ought to have done in the situation. He has failed, e.g., to exercise due care; and the failure, assuming damage to have followed, constitutes a tort. This phase of the breach of duty is the domain of negligence \ The meaning of the first part of the definition is now, it is hoped, somewhat cleared up. The result may be shortly put thus : Looking to one class of cases, a tort is (so far) a breach of duty effected by fraud or by malice. Looking to a second class, a tort is a breach of duty, absolute, regardless of fraud, malice, intention, or negligence. Looking to a third class, a tort is a breach of duty effected by negligence"^. These divisions of the breach of duty will be found to cover all cases of tort in the law as it now exists. Further, it may be remarked that the breach of ^ The law does not, in point of fact, stop to consider the actual state of mind of the defendant as a ground of liability in actions for negligence; and the text, it will be seen, only says that negligence 'may be considered as a negative mental attitude.' It is believed, however, that there is always in fact a negative or passive state of mind in cases of negligence; the defendant's mind has not been duly aroused to the danger, or if the defendant is sensible of the situation, he has not exerted his will to avoid harm. And it is beUeved that it is useful and instructive to call attention to this. But the actual standard of the law is external. '- It should be observed, however, that the result shews only the outward aspect of the breach of duty. For the deeper meaning, the student must await the examination to be made of the specific torts of the law. It could not be shewn here without making this intro- duction prolix, and going over ground to be examined, necessarily, later. 8 INTRODUCTION. duty, in whatever form, may be committed by anyone having natural capacity. The law of torts affords a strong contrast, in this particular, both to the law of contract and to the criminal law. Liability in contract depends, indeed, upon capacity to contract ; but want of such capacity may be either natural or artificial. One must be of sound mind and at least twenty-one years of age to bind oneself by contract \ Liability under the criminal law depends also, generally speaking, upon the existence of capacity to commit crime ; but want of this too may be natural or artificial. A person must be of sound mind and at least seven years of age to be subject to punishment under the criminal law. There may be difficulty sometimes in applying the rule of natural capacity ; but the difficulty can hardly arise except in cases requiring proof of fraud, malice, or negligence, and then as a rule only in suits against infants. Where the doing of the act creates of itself liability, that is, where there is a breach of the absolute duty, a defence of incapacity would be contrary to the fact, and could not, it seems, be allowed. The fact that the defendant was a person of unsound mind^ or a child of tender years, would not be material. It would be enough that the act done was of the will. Cases requiring proof of fraud, malice, or negligence would perhaps create no difficulty where the defendant 1 Infants' contracts for necessaries are an exception. - Quasre, in regard to civil liability committed by a madman in a frenzy, though the act was intended? In some cases necessity would excuse a tort by anyone, as where a person is chased upon another's close by a savage beast. But suppose A threatens to kill B unless B will trespass upon C's land, and B does the act; will it affect the case that B is an infant, insane, or idiotic? INTRODUCTION, 9 was a person of unsound mind, not accountable to the criminal law ; an action of tort could hardly be main- tained. A madman may, indeed, be guilty of fraud or malice in some sense (cunning, it is well known, is a common trait of the insane), but not in the sense in which it would be necessary to create liability, as, e.g., in an action for deceit or for malicious prosecution \ And clearly a madman cannot exercise diligence. It is only the case then of an infant defendant that can raise serious difficulty. An infant of sound mind, twenty years of age, or much less, is liable for any tort for which an adult might be sued ; an infant of five years could not be liable for negligence probably, and of course would never be sued for torts requiring proof of fraud or malice. But within these extremes, and it may be also without them, there is a region of un- certainty, in which the courts, if called upon to act, must act according to the best lights they may have, in each particular case ; the question of capacity being probably a question of fact I Consider in the next place that the duty in question is 'fixed by law.' This will serve to distinguish tort from contract ; for in contract the duty is commonly fixed by the parties, in the terms of the agreement. 1 Compare Emmens v. Pottle, 16 Q. B. Div. 354, 356, Lord Esher. - There is a difficulty of another kind touching the Uability of infants, and that is where what would be a tort in other cases, e.g. a fraudulent representation, is the inducement to a contract. But the rule in regard to such cases is, that there can be no liability in tort if to enforce the action would virtually fix upon the infant liability for breach of contract. The case is or may be quite different where the tort follows the contract ; there to enforce an action for the tort would not be to enforce the contract. 10 INTRODUCTION. But this is not always the case; it happens not in- frequently that the parties to a contract leave terms to be supplied by the evidence of custom or by the law itself In such cases a violation of the term so to be supplied might even before the Judicature Act make a case of tort or of breach of contract, at the election of the injured party ; the duty being fixed by law, or, what would come to much the same thing, by custom, the breach could be treated as a tort. Thus, if a common carrier at London were to contract with A to deliver at York certain goods put into the carrier's hands, and fail to do so, he would be presumptively liable to A, as for a tort, or for breach of contract, at A's election. A breach of an implied term of a contract may then, it seems, be treated as constituting a tort whenever the term is supplied by law or by custom ; but this is not now a matter of much importance in regard to the subject under consideration. Nor, indeed, was it so formerly, for the injured party had a clear right of action for breach of contract, at all events; and the question was only one of the preferable remedy. Still, it is to be remembered that theoretically the law of torts overlaps that of contract at the place indicated. It is not to be inferred that there cannot be a tort in respect of the breach or the invalidity of a contract the terms of which are all fully expressed. If the contract contain a false warranty, it is broken in the breach of the warranty ; and breach of an affirmative warranty', fraudulently made, may be treated as a tort. So too, what is of much importance, a contract founded 1 A warranty affirming a fact, as distinguished from one promising something. INTRODUCTION. 11 upon a false and fraudulent representation, though not amovmting to a warranty, may be repudiated, and an action for tort maintained ; or the contract may be treated by the injured party as binding, and an action for tort brought to recover damages for the loss caused by getting him into the contract. The explanation is, that the breach of duty sued upon is not in reality a term, express or implied, of the contract ; the duty violated is fixed by law, — a duty not to defraud. In this view, then, the law of tort still further overlaps that of contract \ Consider, finally, the phrase in the definition ' re- dressible by a suit for damages.' Does this imply that the plaintiff must have sustained some loss or detriment ? Not necessarily. There are many cases in which the defendant would not be allowed to shew that the plaintiff had not suffered a pennyworth. On the other hand, there are many cases in which the plaintiff cannot recover judgment without proving that the act or omission of the defendant caused a loss to him. In regard to this, the law has laid down certain arbitrary rules ; and that being the case, about all that could be said towards making clear the conception of tort in this particular would be to state the cases in which loss must, and those in which it need not, be proved. But at this stage of the student's work it 1 In regard to the case of warranty, if what is said supra is not understood, it should be observed that warranty in itself, where it consists in the affirmation of a fact, is a contract only by courtesy of language ; and in general it is only false warranties of that kind that are treated as torts. As a statement of fact a warranty is like a representation ; and if fraudulent, the breach of duty is like that committed in a case of misrepresentation apart from the contract. 12 INTRODUCTION. would be a questionable service to enumerate the torts which fall upon the one and the other side of the line of loss. The student can, however, satisfy himself, if he will, bj referring to the ' Statement of Duty ' at the head of the several chapters of the text ; where the words ' prejudice,' ' detriment,' and ' damage ' are used in their ordinary sense of ' loss,' or ' special damage.' To constitute damage within the meaning of such a phrase as ' suit for damages,' whether loss is necessary or not, there must have been an infraction of some legal as distinguished from a moral right. But ' legal ' right includes cases in which the right is in process of con- summation at the time of the infraction, and cases in which a person is at the time receiving, actually or potentially, a gratuity \ Examples of the statement just made should be given here and now, or its meaning may not be seen. The following will, it is hoped, serve the purpose : A and B are negotiating for the sale by the former to the latter of a horse. By false and fraudulent representa- tions concerning the animal, C induces B to break off the negotiations. A has, it seems, sustained damage, and can maintain an action against C^. If, however, the case is such that the plaintiff had only a hope or an expectation, though well founded, of obtaining something of value from another, in regard to which no contract had been made, no negotiations entered into, and no enjoyment begun, he will not be 1 Post, Part I. ch. iv. § 3; Part II. ch. rii. § 3; Moore t;. Meagher, 1 Taunt. 39, 44, Ex. Ch. 2 Malachy v. Soper, 3 Bing. N. C. 371 ; s. c. L. C. Torts, 54—59. INTRODUCTION. 13 deemed to have suffered damage by the defendant's causing his hope or expectation to be frustrated. This too may need the aid of an example : A makes his will in favour of B ; and C by false and fraudulent represen- tations induces A to revoke the gift. B has sustained no damage, and cannot maintain an action against C\ A word more. The fact that a tort is redressible in damages serves to distinguish the offence from a crime ; which is redressed by prosecution on behalf of the Crown, for the purpose of punishing the accused, by imprison- ment, fine, or forfeiture. But most crimes which are attended with loss may also be treated as torts, at least after the Crown has prosecuted. Homicide is an excep- tion, apart from cases falling within statute. It will be seen, then, that the law of torts, which we have found overlapping the law of contracts on one side, overlaps on the other the criminal law. But the greater part by far of the domain of tort lies between the two extremes. In explanation of the examples given throughout the following pages it is to be observed, that when a particular act or omission under consideration is said to be a ' breach of duty,' or of ' legal duty,' or of the ' duty under consideration,' it is assumed that other elements of liability, if there be such, are present. Further, ' breach of duty ' or the like implies a right of action in damages. 1 Hutching v. Hutchins, 7 Hill, 104; s. c. L. C. Torts, 207, an American example. SPECIFIC TOETS. PART I. BREACH OF DUTY TO REFRAIN FROM FRAUD OR MALICE. CHAPTER I. DECEIT. § 1. Introductory. Statement of the duty. A owes to B the duty to forbear to mislead him to his prejudice by false and artful repre- sentations, apt to mislead. 1. Deceit is a ground of defence to the enforcement of a contract, and is also ground for proceedings by the injured party to rescind a contract. In such cases the same facts, apart from the wrong-doer's knowledge of the actual state of things, are necessary for establishing the deceit as are necessary to an action of or for deceit. Hence, with the exception mentioned, authorities concerning the proof of deceit in cases of contract are authorities in regard to actions for damages by reason of deceit. 2. The action at law for damages by reason of deceit is called indilferently an action of deceit or an action for deceit. 3. When it is said that a particular representation is a breach of duty, or of legal duty, or of the duty under con- sideration, it is to be understood that the other elements necessary to constitute the complete breach of duty (where not referred to) are supposed to be present. In order to establish a breach of the duty above stated, and to entitle B to civil redress therefor, B, unless he come B. T. 2 18 LAW OF TORTS. [PART I. within one of the qualifications to the rule, must make it appear to the court (1) that A has made a false represen- tation of material facts; (2) that A made the same with knowledge of its falsity ; (3) that B was ignorant of its falsity, and believed it to be true ; (4) that it was made with intent that it should be acted upon;, (5) that it was acted upon by B to his damage'. But each of these general elements of the rights of redress must be separately examined and explained, and the qualifications to the same presented. The designation of the parties as A and B may now be dropped^ and B will be spoken of as the plaintiflF, and A as the defendant. § 2. Of the Representation. It is proper first to consider the meaning of the term ' representation,' and its nature, and thus to ascertain what is the foundation of the action under consideration. A representation then, in contemplation of law, may be de- fined, for the present purpose, to be any clear impression of fact, created upon the mind of the plaintifi", by act, not amounting to a warx'anty, of the defendant sufficient to govern the conduct of a man of ordinary intelligence. The difference in aspect (and that is all that calls for remark here) between a representation and a warranty may be put as follows : While the latter as well as the former may be a statement of fact, it is always annexed to some contract and is part of that contract ; the warranty is indeed a contract itself^, though a subsidiary one, dependent upon the main agreement. A representation, however, is in no case more than inducement to a contract; it is never part of one. To carry it into a contract would be to make it a warranty. And again, there may be a representation, 1 Pasley v. Freeman, 3 T. E. 51; s. c. L. C. Torts, 1. 2 Brownlie v. Campbell, 5 App. Gas. 925, 953, Lord Blackburn. CHAP. I.] DECEIT. 19 such as the law will take cognizance of, though no contract was made or attempted between the one who made the representation and the one to whom it was made. This would be sufficient to distinguish the two terms, if it were necessary to a warranty that it should be expressly annexed to the contract-in-chief ; but it is not, and that fact sometimes creates difficulty. In written contracts there can seldom be difficulty in determining whether a particular statement is a warranty or a representation (when it is one or other), for the warranty must be part of the wi'iting, since a warranty must be part of the contract- in-chief \ and it will either be directly incorporated into the general writing or be so connected with it by apt language" that there can be no doubt of the intention of the parties. The difficulty is with oral contracts, and then for the greater part only in regard to sales of personalty. Whether the statement in question is a representation or a warranty is, however, a question of intention; and an intention to create a warranty is shewn, it seems, by evidence of ma- terial statements of fact made as an inducement to the sale, at the time the bargain was effected, or during negotiations therefor which have been completed in proper reliance upon the statements^; provided nothing at variance with the in- ference of intention is shewn*. If the statement was not so made, it is a representation if it is anything. "What difficulty remains is in the application of the rule; and that is a matter for works treating of contracts or torts in detail. A warranty of fact, however, when broken may be 1 Kaui V. Old, 2 B. & C. 627. 2 A warranty may indeed be implied, i.e. arise without language, but such cases are aside from the present jiurpose. The difficulty under consideration concerns the effect of language used. =* See Hopkins v. Tanqueray, 15 C. B. 130. ■* Such appears to be the effect of the cases. See Benjamin, Sales, §613. 2—2 20 LAW OF TORTS. [PART I. treated, it seems, as a case of misrepresentation, giving rise to an action for deceit if the elements necessary to liability in a proper case of misrepresentation are present ' ; and this, it is believed, is true whether the warranty was express or implied. Indeed, in case of implied warranty the breach appears to be enough to make the case one of deceit^. This reduces the matter to a question of the form of action. But it is very doubtful whether an action based on deceit could be maintained where the evidence shewed nothing but a breach of warranty. That would be a variance ; the action should be on the warranty as such. The representation requires, as the definition indicates, an act. There are, it is true, cases in which legal con- sequences may attend absolute silence ; but there are probably no cases in which an action for damages on account of silence alone can be maintained. There must be some additional element to make silence actionable^. If the silence consist in withholding part of the truth of a statement, it may be actionable, as will be seen later ; but in such a case it is, properly speaking, only part of the representation. The silence amounts to saying that what has been stated is all. There is a duty to speak in such a case, and it is only when there is such a duty that silence has any legal significance. Indeed, even passive concealment, that is, intentional withholding of information, when not attended with any active conduct tending to mislead, is insufiicient to create a cause of action. For example : The defendant, knowing of 1 See Indianapolis E. Co. v. Tyng, 63 N. Y. 653. 2 CoUen V. Wright, 8 El. & B. 647; Randell v. Trimen, 18 C. B. 786; Seton v. Lafone, 18 Q. B. D. 139; post, p. 36. 3 The question of the effect of silence is perhaps more frequently- seen in defences than as a ground of action. For a case of defence see Lee v. Jones, 17 C. B. N. S. 482; s. c. 14 C. B. N. S. 386. CHAP. I.] DECEIT. 21 the existence of facts tending to enhance the price of tobacco, of which facts the plaintiff" is ignorant, to his knowledge, buys a quantity of tobacco of the plaintiff" at current prices, withholding information of the facts referred to (no question being asked to bring them out). This is no breach of duty to the plaintiff"'. Again : The defend- ant buys of the plaintiff" land in which there is a mine, the defendant knowing the fact, and knowing that the plaintiff' is ignorant of it. The defendant does not disclose the fact in the negotiations for the purchase. This is no breach of duty". An act, however, attending what would otherwise be a case of perfect silence, in regard to the fact in question, may have the effect to create a representation, and lay the foundation so far for an action ; but the act must be significant and misleading. For that purpose, however, it may be slight^ ; a nod of the head may no doubt be enough, so may a withdrawing of attention from some point to which it is being or about to be directed. But as has just been said, the act attending the silence must be significant and misleading ; if not, it will count for nothing. For example : The plaintiff" sues the defendant for damages caused by the sale to him by the defendant of animals having a contagious disease. Statute prohibits the sending of such animals to market, and imposes a 1 Laidlaw v. Organ, 2 Wheat. 178, Supreme Court U. S. See Smith V. Hughes, L. E. 6 Q. B. 597; Evaus v. Carrington, 2 De G. F. & J. 481; Peek v. Gurney, L. E. 6 H. L. 377, Lord Cah-ns; Coaks V. Boswell, 11 App. Cas. 232, Lord Selborne. 'Whatever may be the case in a court of morals, there is no legal obligation on the vendor to inform the purchaser that he is under a mistake, not induced by the act of the vendor.' Blackburn, J. in Smith v. Hughes, supra. 2 Fox V. Mackreth, 2 Bro. C. C. 400, 420, a leading case in equity. See Turner v. Harvey, Jacob, 169, 178. 2 Turner v. Harvey, Jacob, 178, Lord Eldou. 22 LAW OF TORTS. [PART I. penalty for violating the prohibition. The animals in question have, however, been inspected by the public officer and passed before the sale. The seller has made a written statement that the animals must be taken ' with all faults,' and that no warranty is made and no compensation for defects will be given. These facts do not shew any representation by the defendant that the animals are not affected with disease, or create any right to damages in favour of the plaintiff'; though it is possible that the case mio-ht have been different had there been no such statement by the seller as that mentioned^. In a word, then, the supposed representation must be clear and certain ; the plaintiff does not make out the alleged breach of duty if his evidence shew only a statement or act of vague or indefinite import. This rests upon the plain ground that the average man would not rely and act upon statements of an indefinite nature. The fact that they are of such a nature would put him upon inquiry before acting, if acting were seriously contemplated ; and then if he should act, he would have acted upon the information so obtained and not upon the indefinite statements. Hence, whether he acted or did not act, the author of those statements would not be liable. The representation need not, however, be created by lan- o-uao-e : there is no distinction between an impression created by words and one created by other acts. If the impression is capable of being stated as an existing or past fact, and is such as might govern the conduct of an average man in regard to some change of position in contemplation, it is enough. In a word, it may be entirely implied. Indeed, it appears to be unnecessary that the implication should 1 Ward V. Hobbs, 4 App. Gas. 13, affirming 3 Q. B. Div. 150. " See Badger v. Nichols, 28 L. T. N. S. 441, Blackburn, J. referred to by Lord Cairus in Ward v. Hobbs, but apparently with doubt. CHAP. I.] DECEIT, 23 be adverted to or consciously present to the mind at the time of the change of position; a fact to be brought out fully somewhat later. It follows that, to constitute a false representation, it is not necessary tliat statements made should be made in terms expressly affirming the existence of some fact. If the alleged misrepresentation be made by the defendant in terms such as would naturally lead the plaintiff to suppose the existence of a particular state of facts, that is as much as if statements had so been made in exact terms'. It should be noticed that there is a difference in fact between vagueness and ambiguity. Vagueness, as we have seen, is fatal to the idea of a legal representation; but ambiguity in an impression may only mean that more than one fact has been impressed upon the mind, not that none at all has been left there. In such a case as this the only question that can arise in reason or in law is whether, assuming the facts impi-essed to be clear and definite, the plaintiff reasonably acted upon the one which was false. That he did this it devolves upon him to shew. The point is illustrated by a case recently before the House of Lords ^. That was an action for deceit, in which it appeared that the prospectus of a company in process of formation to take over certain iron-works contained the following statement : ' The present value of the turnover or output of the entire works is a million pounds sterling per annum.' This statement might mean either that the works had actually turned out more than a million's worth at present prices within a year or yearly, or only that the works were capable of turning out so much; in the former case it was false, in the latter it might be true. It was held that the plaintiff, who had been induced to buy shares 1 Lee V. Jones, 17 C. B. N. S. 482; s. c. 14 C. B. N. S. 386. '■i Smith V. Chadwiek, 9 App. Gas. 187 ; s. c. 20 Ch. Div. 27. 24 LAW OF TORTS, [PART I. in the undertaking, must shew that he had acted upon the statement in the sense in which it was false. Where a term of art, ha\dng a technical and also a popular meaning, has been used, the case may be affected by presumption. Between parties engaged in the same vocation, the presumption (probably) would be, that the representation was to be taken in the technical sense ; if they were not, there would perhaps be no presumption either way. In either case it would be necessary, judging from the decision in the House of Lords just stated, for the plaintiff to shew that he had acted upon tlie representation in the sense in which it was false ; and even then there could not be a cause of action if the defendant made the statement with reasonable ground to suppose that it would be acted upon in the sense in which it was true. And in that presumption might help him. The presumption, however, in any case, would only be prima facie, and so conclusive only in the absence of evidence opposed to it. Another case may be mentioned. A statement of fact may have one meaning in one place and another in another; in such a case it would seem that the statement should be understood as intended in the sense in which it is commonly used where it was made', unless, indeed, it was made there by one residing where it is used -in a different sense. In this latter case the courts would (probably) consider the party bound only by that meaning which he would have reason to suppose was conveyed. Upon the principle that there can be no breach of the legal duty in question unless the supposed representation be definite enough to justify a prudent man, i.e. the average man, in relying upon it, there must be something more than 1 See Yeates v. Prior, 6 Eng. 58, an American case stated in Bigelow, Fraud, 500. CHAP, I.] DECEIT. 25 the expression of a mere opinion. It would not be enough for a vendor, not warranting his statement, to say that a certain valve would consume smoke and save fuel', or that certain pictures were the works of old masters^, or that his property was worth a certain sum^ Whatever weight such statements might have, and in point of fact they might come with much weight in particular cases, they still would, if not warranted or affected by very special facts, fall with- out the notice of the law. Representations in regard to the value of property about to be sold often give rise, however, to difficult questions. The general rule, as already indicated, is plain enough ; 'simplex commendatio non obligat.' But what is 'simplex commendatio ' 1 A simple statement of value by a vendor is a clear case on the one hand ; a plain statement of fact going to make up value, as the age of a horse, is an equally clear case on the other. But what of statements falling between the two extremes 1 The question cannot be defi- nitely answered ; most of the cases that arise have to be determined upon the special facts attending them. Tliat is to say, particular rules can seldom be framed to reach them, and general rules have only a remote bearing upon them ^. One or two rules, however, of a limited nature, have been laid down touching the subject. There are well- considered cases in America in which a distinction is drawn 1 Prideaux v. Bunnett, 1 C. B. N. S. 613. 2 Jendwine v. Slade, 2 Esp. 572. 3 Vernon v. Keys, 12 East, G32; s. c. 4 Taunt. 488, Ex. Ch. * The American courts have had to deal much with so-called representations of value. The following are important cases : Simar V. Canaday, 53 N. Y. 298; Chrysler v. Canaday, 90 N. Y. 272; Medbury v. Watson, 6 Met. 246 (Mass.) ; Stebbins v. Eddy, 4 Mason, 414, Story, J. 26 LAW OF TORTS. [PART I. between statements of value made by a vendor and statements of the same kind made by a stranger to the title. While the former are without the law in ordinary cases, the latter, if false, may constitute actionable misrepresentation. For example : The defendant, not being the seller of the property, falsely states that a tannery has on a previous sale brought a certain price. This is a misrepresentation within the law'. Again, it is settled law that statements of the income of property, or of the rental receipts of a leasehold estate to be sold, would constitute representations of fact. For example : The defendant, seller of a public-house, falsely tells the buyer, the plaintiff, that the receipts of the house have been i£160 per month, and that the tap is let for £82 per annum, and two rooms for ^£27 per annum. This is a false representation, and not a mere statement of value^. And this would be equally true if the statement were that the present ' value ' of the property is a certain sum per year ; for that would mean its annual return \ Statements concerning the pecuniary condition of an individual are not necessarily statements of opinion, and when distinctly and specifically made may be breaches of the duty under consideration. For example : The defendant says to the plaintiff, 'F is pecuniarily responsible. You can safely trust him for goods to the amount of £3,000.' This is a representation of facf. Slight expressions, however, are sufficient to put state- ments of this character on the footing of statements of 1 Medbury v. Watson, 6 Met. 246 (Mass.). ■2 Dobell V. Stevens, 3 B. & C. 623. See Fuller v. Wilson, 3 Q. B. 58 ; Lysney v. Selby, 2 Ld. Raym. 1118, leading case. 3 See Smith v. Cliadwick, 9 App. Gas. 187, ante, p. 28. " Pasley v. Freeman, 3 T. R. 51; s. c. L. C. Torts, 1. Such representations must now be proved by writing signed by the party to be charged. 9 Geo. -4, c. 14. CHAP. I.] DECEIT. 27 opinion. For example : The defendant, in answer to inquiries as to the circumstances and credit of a third person, says to the plaintiff, 'I should be willing to give him credit for anything he wanted.' This statement cannot safely be acted upon by the plaintiff. The mere fact that the defendant may be willing to give him credit does not necessarily justify the plaintiff in doing so'. The rule of certainty further requires that the repre- sentation should relate to present or past facts ; if it relate to matters in the futui-e, it cannot justify a prudent man in acting upon it, unless it comes to a contract, and then it will not be a legal representation ^ In most cases of uncertain statements, consisting of opinion or prediction as distinguished from the uncertainty of vagueness, there wdll be implied a plain representation of fact, to wit, that the party knows of nothing making his expressed statement false. And there is strong reason to believe that the courts would take cognizance, not indeed of the opinion or prediction, but of this implied though none the less real representation, if it should be false. This observation is founded upon the language of Lord Justice Bowen in a recent case^. It was there said in substance that if facts were not equally known to both parties, a statement of opinion by the one who knew the truth very often involves a statement of fact, ' for he impliedly states that he knows facts which justify his opinion.' The statement in question was that a certain person was a 'most desirable tenant,' and the coux't took cognizance of it. But there may be soiue doubt whether such a 1 Gainsford v. Blachford, 7 Price, 544. 2 See Joi-den v. Money, 5 H. L. Cas. 185 ; Citizens' Bank v. First National Bank, L. E. 6 H. L. 352, 360. 3 Smith V. Land Corp., 28 Cb. Div. 7. 28 LAW OF TORTS. [PART I. statement amounts to opinion in contemplation of law; it was not directly decided to be such. An American case, however, may be stated, which speaks to the very case of an opinion : The defendant, a cattle-dealer, desiring to sell cattle to the plaintiff, makes a statement in the way of opinion that the cattle will weigh 900 lbs. and upwards per head. He has already weighed them, and knows that their average weight is considerably below 900 lbs. This is a breach of duty'. A similar observation to that above made should be made in regard to representations looking to the future, whether in the way of prediction or of promise. As predic- tion the case would fall without the notice of the law; and so it would as promise, unless the promise came to a contract. But either as prediction or as promise there would ordinarily be an implied representation that the party making it knew of nothing which made his statement a sham. Thus, if a person were to say that a certain vessel would arrive on the morrow, that would amount to a representation that he knew nothing to the contrary ; if he knew that she was at the bottom of the sea, there would, or there might be, a case for the courts. Again, if a person were to promise to pay for goods bought by him on credit, intending at the time not to pay for them, there would be a case for the courts on the footing of misrepresentation ^ ; for the party's promise is a plain representation of present intention to fulfil his undertaking. Such cases are, however, more com- monly treated as cases for rescission of the contract. It is e^ddent that the party wronged may not in any of these cases of implied representation have adverted to the representation iDehind the actual language ; indeed, it would 1 Bkdsey v. Butterfield, 34 Wis. 52. See also Pike v. Fay, 101 Mass. 134. - Bristol V. Wilsmore, 1 B. & C. 514. CHAP. I.] DECEIT. 29 seldom happen that he had adverted to the fact. But that would not atfect the case ; the implied statement has, or may have, influenced the party's conduct, notwithstanding the fact that he may have been unconscious of the precise nature of the influence. Had attention been directed to the matter he would certainly have said that the language imi3lied the representation behind it, to wit, that nothing was known to the defendant falsifying his expressed opinion, prediction, or promise. Again, to come within the notice of the law, the repre- sentation, if not made by a lawyer to a layman, or by a man professing familiarity with the law to one not familiar with it, must, it seems, be more than a mere representation of what the law is. The reason of this has sometimes been said to be that all men are presumed to know the law ; ' ignorantia legis neminem excusat.' But it may be doubted whether that is the true ground of the rule ; if it were, misrepresentation of the law by one's legal counsel could hardly be made the foundation of any liability. A better reason appears to be that the law is understood by all men to be a special branch of learning ; and hence what one layman may say to another will seldom have the effect to alter conduct. But whatever the ground, the rule appears to be treated as settled', though it probably has not been actually decided that evidence of reliance upon a represen- tation of law is not admissible where the parties stood on equal footing^. When further it is said that the representation must be of a character to affect the conduct of a prudent man, i.e. 1 See Lewis v. Jones, 4 B. & C. 506 ; Beattie v. Ebury, L. R. 7 Cb. 777, 804; Eaglesfield v. Londonderry, 4 Cli. Div. 693, Jessel, M. R., explaining the nature of a representation of law. And see West London Bank v. Kitson, 13 Q. B. Div. 360, 363, Bowen, L. J, 2 See Pollock, Torts, 243. 30 LAW OF TORTS. [PART I, when it is said that the representation must, in the language of the books, be material, it is not to be implied that the law will not take notice of the case if influences from other sources may have operated upon the plaintiff. The only question upon this point is whether the representation made by the defendant was adequate to influence, and did influ- ence, the plaintiff, not whether it was the sole inducement to the action taken ; if it was sufficient to influence him, and did influence him to some real extent, that is enough. The courts will not be astute to find that one of several inducements present was not adequate to the damage'. Indeed, if the defendant has accomplished his purpose by his misrepresentation, he will not be permitted to say that the act was immaterial^. ■Finally, it is for the plaintiff to shew that the represen- tation was false. But a representation is false in contem- plation of law as well as of morals if it is false in a plain, practical sense ; if, that is to say, it would be apt to create a false impression upon the mind of the average man. For example : The prospectus of a company about to construct a railway describes the contract for the work as entered into at ' a price considered within the available capital of the company.' The fact is, that there is a merely nominal capital of £500,000, and from this the sum of £50,000 is to be deducted for the purchase of the concession for making the railway, and the contract price for making it is £420,000. The representation is false ; the term ' available capital ' not being a true description of capital to be raised by borrowing ^ Again : Particulars of the sale of a hotel by auction, August 4, 1882, state that the premises are let to A, 'a 1 Peek V. Derry, 37 Ch. Div. 541 ; Eeynell v. Sprye, 1 De G. M. & G. 660 ; Sankey v. Alexander, Ir. R. 9 Eq. 259. 2 Smith V. Kay, 7 H. L. Gas. 750. 3 Central Ry. Co. v. Kisch, L. R. 2 H. L. 99. CHAP. I.] DECEIT. 31 most desirable tenant,' at a certain rental, for a long term. On May 1, 1882, Lady Day quarter's rent was wholly unpaid, and a distress was then threatened. On May 6, A pays part of the sum due; on June 13, another part, and shortly before the auction the rest. No part of the Mid- summer rent has been paid. The representation is false'. An example in contrast with the foregoing may be stated. A pi'ospectus of a company formed for buying a certain business declares that the price of purchase is a stated sum, and that no ' promotion money ' is to be paid to the directors of the company for making the purchase. In fact, the sum paid for the business is somewhat less than the sum stated in the prospectus, and shares of the stock representing the difference are now transferred, pai't to the directors of the company who effected the purchase, which part is afterwards transferred to the company on complaint, and part to the solicitors in the transaction. This is not misrepresentation ". The defendant cannot, then, escape liability by shewing that the representation was, if literally taken, true, or true if taken in some forced or unnatural sense. So too the defendant cannot rely upon the truth of the actual language used, when that is but part of the whole state of facts, and what was suppressed would, had it been stated, have given to the language used a contrary effect. If the part sup- pressed would have made the part stated false, there is a false representation^. For example : The plaintiff, being 1 Smith V. Land Corp., 28 Ch. Div. 7. " Arkwright v. Newbold, 17 Ch. Div. 301. 'Nobody was ever lucky enough to sell a property without having some considerable deduction made out of the gross price, there being such persons as auctioneers and solicitors to be paid.' James, L. J. 3 Peek V. Gurney, L. R. 6 H. L. 377, 403, Lord Cairns; Central Ey. Co. V. Kisch, L. R. 2 H. L. 99, 113; Corbett v. Brown, 8 Bing. 33. 32 LAW OF TORTS. [PART I. about to supply the defendant's son with goods on credit, asks the defendant if the son has property of the value of £300, as the son has asserted. The defendant answers in the affirmative, stating that he has advanced the sum to his son, but failing to state that his son has given his promissory note for the amount. This is a false representation, though true in a literal sensed § 3. Of Defendant's Knowledge of Falsity. In order to entitle a plaintiff to recover damages for misrepresentation, it is necessary for hini to prove that the defendant made the false representation fraudulently. In a proceeding, indeed, in what would formerly have been called a court of equity, a contract may be rescinded, or its enforcement successfully resisted, for an innocent misrepre- sentation, that is to say, for a false repi^esentation justly believed to be true at the outset by the party who made it ; but if damages are sought, fraud must be proved, as well in such a proceeding as in one which under the old system would have been called legaP. Fraud, within the meaning of this rule, may be proved in one of three ways, according to the nature of the case. It may be proved by shewing (1) that the defendant made the representation with knowledge of its falsity, or (2) that he made it without reasonable ground to believe it true^, 1 Corbett v. Brown, supra. 2 Joliffe V. Baker, 11 Q. B. D. 255; Arkwright v. Newbold, 17 Cb. Div. 301, 320; Redgrave v. Hurd, 20 Ch. Div. 1; Reese Mining Co. V. Smith, L. R. 4 H. L. 64; Collins v. Evans, 5 Q. B. 820, Ex. Cb. ; Ormrod v. Hutb, 14 M. & W. 650, Ex. Ch.; Cbilders v. Wooler, 2 El. & E. 287; Evans v. Edmonds, 13 C. B. 777, 786. 3 See the cases last cited ; Peek v. Derry, 87 Ch. Div. 541. This, the latest case, contains the most specific declaration in regard to proof of fraud, though it does not touch (3) of the text. Lopes, L. J. makes an elaborate division of (2). 37 Ch. D. at p. 585. CHAP. I.] DECEIT. 33 or (3) that he made it under circumstances in which he was so related to the facts that it was his duty to know whether the representation was true or not. Proving the allegation in any of these ways is often, especially in common law pleading, called proving the ' scienter ' ' ; and the burden of proof is upon the plaintiif. The first and second of these phases of fraud bear, upon examination, a close resemblance to each other; and for ordinary purposes they may be considered as equivalents. The second is really a case of false representation made with knowledge, if regard be had to what it implies. If a man make a positive statement, he impliedly affirms that he is in possession of facts which justify the same; and if he is not, he has told what he knows to be false", or, more accurately, what the average or standard man would know to be false. It is, however, the implied representation which he knows to be false. Accordingly, for ordinary purposes, it will be enough to establish knowledge of falsity to shew that the representation was made without reasonable ground to believe it true. In other words, an allegation of fraud of the first form mentioned may be proved by facts shewing the second; and the converse would no doubt be true also. And then it is no answer to the case that the defendant in fact believed the representation to be true ; belief, i.e. rational belief, 1 From the term used in the early Latin precedents of declaration. - Haycraft v. Creasy, 2 East, 92, 103, Lord Kenyon; Evans v. Edmonds, 13 C. B. 777, 786, Maule, J. ; Hart v. Swaiue, 7 Ch. D. 42, 46, Fry, J.; Joliffe v. Baker, 11 Q. B. D. 255, 259, Williams, J.; Brownliev. Campbell, 5 App. Cas. 925, 953, Lord Blackburn. Further, see Eeese Mining Co. v. Smith, L. E. 4 H. L. 64, 79, Lord Cairns : ' If persons take upon themselves to make assertions as to which they are ignorant whether they are true or not, thej' must in a civil ijoint of view be held as responsible as if they had asserted that which thej- knew to be untrue.' See also Peek v. Derry, 37 Ch. Div. 541, 581. B. T. 3 :34 LAW OF TORTS. [PART I. requires sufficient grounds. It is equally obvious that the plaintiff fails if his evidence is met by credible evidence that the defendant reasonably believed his representation to be true; for that means that he had reasonable ground to believe the same'. Thus far of ordinary cases. For the purposes, however, of a strict application of law, the first and second phases of fraud appear not to be equivalents. It does not, in strictness, prove that a man knew that a statement made by him was false, to shew that he knew nothing about the facts affirmed ; it only shews, as has been seen, that the imjMed repre- sentation of the possession of grounds of belief was false, scienter. And there may be cases under criminal statutes, or statutes relating to bankruptcy, in which the distinction is important, thus making it necessary to prove knowledge of falsity strictly' ; and questions of tort might arise out of such cases. The third phase of fraud is quite different. There the defendant, being under a duty to know the facts ^, cannot shew that he made the representation in the belief that it 1 Haycraft v. Creasy, 2 East, 92 ; Collins v. Evans, 5 Q. B. 820, Ex. Ch. ; Ormrod v. Huth, 14 M. & W. 650, Ex. Ch. ; Barley v. Walford, 9 Q. B. 197. There was till very lately some doubt whether the court would weigh the grounds of the defendant's belief where he shewed some grounds. See the difference of opinion between the Lord Chancellor and Lord Cranworth in Western Bank v. Addie, L. R. 1 H. L. So. 145. But the Court of Appeal has just decided that the grounds must be reasonable. Peek v. Derry, 37 Ch. Div. 541. Contra in America. Carroll v. Hayward, 124 Mass. 120. Collins V. Evans, supra, finally settled the rule that it is neces- saiy to prove fraud in an action for damages on account of misrepre- sentation. - Comp. Rogers v. Palmer, 102 U.S. 203. Conversely, if statute make reasonable belief a test, actual belief is not enough. Purinton r. Chamberlain, 131 Mass. 589. 3 Knowledge of facts ought not to be implied, contrary to the CHAP, I.] DECEIT. 35 was true. It may not then be strictly true that tlie plaintiff must prove the scienter in any ordinary way. Still the defendant was aware that it was his duty to know the true state of things, and if he did not perform that duty he must have known the fact, whereas his representation is an implied assertion that he has performed that duty. Thus then, even in this phase of the subject, the plaintiff may be considered as shewing fraud on the part of tlie defendant. But there is another and perhaps more satisfactory view to be taken. The defendant stands in a peculiar situation in regard to the facts ; the facts are specially within his reach ; they ai'e not facts that others may, even by inquiry, know as well. The result is, that any representation made by him touching them is likely to carry great weight, greater, all else being equal, than i-epresentations made in other cases. This fact may well be held enough to govern his conduct, and to i^equire him to know the truth of the representation ; in a word, he may well be held to warrant the representation to be true, and warranting it, he cannot require the party with whom he has dealt to prove that he knew it to be false when he made it'. This third phase of fraud may then be treated as a case either of implied warranty or of deceit ; the injured party has his election in the matter. It is believed that cases of implied warranty generally are capable of being treated as falling under the head of deceit as thus explained. A typical illustration will serve to make the application of truth, except where there is some duty to know them. Hallmark's Case, 9 Ch. Div. 329, Bramwell, L. J. 1 See Collen v. Wright, 8 El. & B. 647, Ex. Ch., Willes, J. for the majority. Cockburn, C. J. dissented as to the form of action. See Denton v. Great Northern Railway Co. 5 El. & B. 860, in regard to representations by railway time tables. 3—2 36 LAW OF TORTS. [PART I. these remarks clear : I£ a person assume to act for another in respect of a matter over whicli he has no authority, he renders himself liable for misrepresentation to the pei^son whom he may thus have misled, though he may have honestly believed that he had the authority assumed '. The matter of his authority was a fact peculiarly within his own means of knowledge, and it was therefore his duty to acquaint himself with the situation. Cases falling under this phase of the subject appear, however, to stand upon narrow ground, and the principle of liability is not to be extended to cases not clearly within it. Thus, the fact that a person allows his name to be used as director or trustee of a corporation or other company, in prospectuses containing false representations, does not impose upon him in law the duty to know the truth of the statements and so subject him to liability. To prove such fact is not to prove fraud". What creates the duty to know the facts is a difficult question to answer ; perhaps it is incapable of being answered in the way of any very perspicuous proposition. The following rule, laid down by an Irish judge, is wanting somewhat in definiteness, but it is doubtful whether the nature of the case permits anything better : What a man must know, it was in substance declared, must have regard to his particular means of knowledge and to the nature of the representation ; and this must be subject to the test of the knowledge which a man, paying that attention which everyone owes to his neighbour in making a representation 1 Collen V. Wright, 8 El. & B. 647, 658, Coekbuin, C. J. See also Randall v. Trimen, 18 C. B. 786; Firbank v. Humphreys, 18 Q. B. D. 54; Seton v. Lafone, id. 139, Denman, J. The majority in Collen V. Wright would no doubt have agreed that an action for deceit could have been maintained. 2 Western Bank v. Addie, L. E. 1 H. L. Sc. 145. €HAP. I.] DECEIT. 37 to be acted upon, would have acquired in the particular case by the use of such means'. § 4. On Plaintiff's Ignorance of Falsity. The next element of the breach of duty is that requiring the plaintiff" to have been ignorant of the truth of the matter concerning which the representation was made, and to have believed that it was true. Both of these situations must, in general, be true of the plaintiff; he must have been ignorant of the true state of things, and have trusted the representation of them as made by the defendant. He must have been deceived ; and to render the defendant liable the plaintiff must have been deceived by the defendant. If the plaintiff had knowledge of the facts in question, or if without having knowledge thereof he acted upon independent information, and not upon a belief of the truth of the defendant's representation, he is in the one case not deceived at all, and in the other is not deceived by the person of whom he complains. And the burden of proving such facts rests upon the plaintiff". Should a purchaser of property therefore make investi- gation of his own in regard to the truth of representations made by the vendor, he will be barred from alleging that the latter made false representations. More than this, if in such a case there was no warranty, the purchaser cannot say that the vendor concealed facts of importance from him ; provided nothing was done or said to prevent the pui^chaser from making as ample investigation as he chose. For example : The defeiadant, vendor of a large tract of land, represents the estate to contain only fifty or sixty acres of 1 Doyle V. Hort, 4 L. E. Ir. 661, 670, Palles, C. B. ■ Pasley v. Freeman, 3 T. E. 51 ; s. c. L. C. Torts, 1. 88 LAW OF TORTS. [PART I. untillable soil, and the plaintiff, the purchaser, before the sale, examines all the land more than once. The defendant is not guilty of a breach of duty to the plaintiff, though it turns out that the estate contains three hundred acres unfit for cultivation \ Aside from such cases, there are few cases in which the plaintiff, if he was actually ignorant of the true state of facts and supposed the representation to be true, is con- sidered by the law as fixed with knowledge of the facts ; the duty resting upon him being only a general duty of dili- gence, rather than a duty, like that in the preceding section, towards the opposite party. The imputation of knowledge is then of much lessened force ; it is generally, indeed, reduced to a case of presumptive evidence, if it arises at all. Authorities there have been in which it is laid down that if the means of knowledge be equally open to both parties, the plaintiff, as a prudent man, must be deemed to have availed himself of such means (or is not to be excused if he has not done so), and hence that, in contemplation of law, he has not been deceived by the defendant ; the result being that, unless there was a warranty, no action can be maintained. Thus, Lord Ellenborough has said that a seller is liable to an action for deceit if he fraudulently misrepresent the quality for the property in some particular ' which the buyer has not equal means with himself of knowing ^' And statements to the same effect have been made by other judges^. In the light, however, of recent authorities this doctrine could hardly be sustained at the present time. Indeed, 1 Halls V. Thompson, 1 Smedes & M. 443, an American example. 2 Vernon v. Keys, 12 East, 632. 3 Statements to that effect have been very common in America. See Bigelow, Fraud, 522. CHAP. I.] DECEIT. 39 Lord Ellenborough himself appears to have limited his proposition; for immediately after the foregoing quotation he adds the alternative statement, in regard to the seller's liability for the fraudulent misrepresentation, ' or if he do so in such a manner as to induce the buyer to forbear making the inquiries' which he would otherwise have made. It may be hard to believe that a plaintiff did not avail himself of means of knowledge if directly at hand ; but there is in principle, and by authority, only a probability of fact to be overcome even in such a case. There is no conclusion of law either that the plaintiff availed himself of the means, or that it was his duty to do so ; the plaintiff may still shew that he was misled by the defendant's representation ' . For example : A prospectus of a company in process of formation falsely states that the capital stock is a certain sum, and the plaintiff is induced by this statement to subscribe for shares of stock in the company. The plaintiff might have learned the true state of things by examining the records of the company which were open to his inspection, but does not make the examination. He is not barred of redress". The case is not varied in law by the circumstance that the plaintiff may have made some partial examination on his own behalf ; if still he was misled, and prevented from making such examination as otherwise he would have made, he will be entitled, so far, to recover ^ For example: Representations concerning a hotel about to be sold at auction are made by the seller in printed particulars of sale. ^ Central Ey. Co. v. Kisch, L. E. 2 H. L. 99, 120; Smith v. Land Corp., 28 Ch. Div. 7; Eedgrave v. Hurd, 20 Cb. Div. 1, 13, Jessel, M. E.; Eeynell v. Sprye, 1 De G. M. & G. 668, 709; Stanley v. McGauran, 11 L. E. Ir. 314; Sankey v. Alexander, Ir. E. 9 Ex. 259, 316. 2 Central Ey. v. Kisch, supra. ^ Smith V. Land Corp., 28 Ch. Div. 7; Vernon v. Kej's, 12 East, 632, supra. 40 LAW OF TORTS. [PART I. The buyer, having seen the statements, sends his agent to look over the prenaises to see whether it will be advisable to buy. The agent goes accordingly, and having made some examination, advises the purchase, which is made. The buyer may shew that he was induced by the repre- sentations of the seller to buy\ The subject may be fui'ther illustrated by a quite differ- ent sort of case. Every man is presumed to know the contents of a written contract signed by him ; but no presumption of knowledge will stand in the way of a charge of fraud made in regard to the contents of the writing. No doubt it would be imprudent not to read or to require the reading of an instrument before signing or accepting it ; indeed, the courts would turn a deaf ear to a man who sought to get rid of a contract solely on the ground that its terms were not what he supposed them to be. But the case would be different where a plaintiff charged fraud upon the defendant in reading the contract to him, or in stating its terms, or in secretly inserting terms not agreed upon". The usual course of proceeding in regard to cases of the kind now under consideration is to rescind the contract ; but such a course may have become impossible ^ And whether it be possible or not, it is a well-established rule of law that one who has been induced by fraud to enter into a contract, whether executory or wholly (as by sale and pay- ment) executed, may treat the contract as binding, retain its fruits, and sue for the fraud by which it was effected*. 1 Smith V. Land Corp., supra. '^ Stanley r. Mc Gauran, 11 L. R. Ir. 314; Albany Sav. Inst. v. Burdick, 87 N. Y. 40. 3 See Clarke v. Dickson, El. B. & E. 148. •1 Clarke v. Dickson, El. B. & E. 148; Regina v. Saddlers' Co., 10 H. L. Cas. 404, 421, Blackburn, J. ; Western Bank v. Addie, L. R. 1 H. L. Sc. 167. CHAP. I.] DECEIT. 41 Hence in the case of a written contract knowingly misread, misstated, or miswritten the party wronged may (probably) maintain an action of deceit for the damage he may have incurred, while at the same time treating the contract as in itself valid. But the defendant must have been guilty of fraud, as by purposely misreading or misstating the instrument. Should he profess to state no more than the effect of a long writing, he could not, it seems, be liable in damages for a mistake ; though equity would reform the instrument at the instance of the party injured. The explanation of all this is not far to seek. It is not for one who admits that he has been guilty of endeavouring to mislead another to say to him, when called to account, 'You ought not to have trusted me; you were negligent; you ought to have made inquiry'.' The law requires, indeed, the exercise of prudence by both parties ; but that is all. If prudence on the one side has been disarmed by miscon- duct on the other, the law cannot justly refuse relief. Besides, the case of a plaintiff so situated is quite different from that of a defendant so related to the facts as to be bound to know the truth. In this latter case no one has misled the defendant ; in the case under consideration, on the other hand, the misrepresentation has, upon the hypothesis, misled the plaintiff. The case will of course be different if the defendant's representation was not of a nature to mislead, as where it is a statement of mere opinion, or where it did not in fact mislead. And where the facts are open to the plaintiff equally with the defendant, there is a presumption, it seems, that the plaintiff availed himself of the means of inquiry ; which presumption must be overcome before he can recover. 1 Smith V. Land Corp., supra, Bowen, L. J.; Eedgrave v. Hurd, supra. So too in Albany Sav. Inst. v. Burdick, 87 N. Y. 40. 42 LAW OF TORTS. [PART I. When the defendant induces the plaintiff to abstain from seeking information, mere concealment of material facts may become a breach of duty ; and redress will not be refused in such a case merely because a sharp business man might not have been deceived. Nor is the rule of law different when the defendant suggests examination to the plaintiff, but in such a way as to indicate that such a step would be quite unnecessary. So it is held in America. For example : The defendant, in selling to the plaintiff property at a distance, suggests to the plaintiff that he go and look at the property 'as their judgment might not agree, and, if not satisfied, he would pay the plaintiff's expenses, but if satisfied the plaintiff should pay them himself.' This is deemed to justify the plaintiff in acting upon the defendant's representations without examining the property'. Even though a party sell at the risk of the purchaser, 'with all faults,' as he may, he will have no right to practise fraud ; and if he should do so he will be liable as for a breach of his legal duty to the purchaser. For example : The defendant sells to the plaintiff a vessel, 'hull, masts, yards, standing and running rigging, with all faults, as they now lie.' He, however, makes a false statement, that the ' hull is nearly as good as when launched ', and takes means to conceal defects which he knew to exist. This is a breach of duty to the plaintiff ^ But the case would be difierent if the seller, though aware of the defects, do nothing to conceal them . When the parties, by reason of physical or mental 1 Webster v. Bailey, 31 Mich. 3G. ■•^ Schneider v. Heath, 3 Campb. 506. See Whitney v. Boardman, 118 Mass. 242, 247; George v. Johnson, 6 Humph. 36 (Tenn.). 3 Baglehole r. Walters, 3 Campb. 15-4 (overruling Mellish r. Motteux, Peake, 156); Pickering v. Dowson, 4 Taunt. 779; Bywater V. Richai'dsou, 1 Ad. & E. 508. CHAP. I.] DECEIT. 48 infirmity on the one side, or of the fact that the one party is in the occupation or management of the other's business, or has the general custody of his body, do not stand upon an equal footing, the objection to a suit for false representations, that the party to whom they were made was negligent in not making inquiry or examination, has still less force. Examples of this class of cases may be readily found in the case of transactions with aged persons, or with cestuis que trust by trustees, or with wards by guar- dians. Not even the subsequent acts of accepting and paying for goods upon delivery will bar the purchaser of redress, though the goods were open to his inspection at the time, if tlie fraud was not then discovered, and especially if such acceptance and payment were pi'ocured by fraudulent arti- fices on the part of the vendor \ For example : The defen- dant, a manufacturer and vendor of tobacco, knowingly uses damaged tobacco in the manufacture, and intentionally uses boxes of green lumber ; and while the tobacco is being made up he exhibits to the plaintiff from time to time, in order to mislead him, specimens of tobacco as of the kind he (the defendant) is supplying the plaintiff, when in fact the defendant is supplying him witli a different and inferior kind. Notwithstanding acceptance of the goods and pay- ment for them, the plaintiff is entitled to damages against the defendant^. § 5. Of the Intention that the Representation SHOULD be acted UPON. In regard to that element of the breach of duty under consideration which requires the plaintiff to prove that the 1 See Clarke v. Dickson, El. B. & E. 148. - Mc Aroy v. Wright, 25 Ind. 22. An act does not amount to the waiver of a wrong unless it be done with knowledge of the wrong. 44- LAW OF TORTS. [PART I. defendant intended his representation to be acted upon, it is to be observed that, while the rule is probably inflexible, its force appears chiefly in those cases in which the decep- tion was practised with reference to a negotiation with a tliird person, and not with the defendant. In cases of that kind, an instance of which is found in false representations to the plaintifi" of the solvency of a third person', it is plain that the transaction with such third person, though shewn to have been caused by the defendant's false representation, aftbrds no evidence of an intention in the defendant that the representation should be acted upon by the plaintiff". It would be perfectly consistent with mere evidence that the plaintiff" acted upon the defendant's misrepresentation in a transaction with a third person, that the defendant, though he knew the falsity of his representation, did not know, and had no reason to suppose, that the plaintiff would act upon it. Tlie representation might, for all this, have been a mere idle falsehood, such as would not justify anyone in acting upon it. It follows that where a party complains of false repre- sentations, whereby he was caused to suff'er damage in a transaction with some third person, it devolves upon him to give express evidence either that the defendant in- tended that he should act upon the representation, or that the plaintiff' was justifled in inferring such intention, — it matters not which ' ; and that it is not enough to prove that the misrepresentation was made with knowledge of its falsity ^ When, however, the eff"ect of the false representation was to bring the plaintiff into a business transaction with 1 Pasley v. Freeman, 3 T. R. 51, ante, p. 26. - See Freeman v. Cooke, 2 Ex. 654 ; Cornish v. Abington, 4 H. A' N. 549. ^ See Pasley v. Freeman, 3 T. R. 51 ; s. c. L. C. Torts, 1. CHAP. I.] DECEIT. 45 the defendant, the case is quite difterent. Proof of such a fact shews at once the intent of the defendant to induce the plaintiff to act upon the representation ; and it fol- lows that no evidence need be offered of an intention to this effect, or of reasonable ground to suppose an intention. The principle appears most frequently in cases of sales ; the rule of law being, that if the plaintiff, the purchaser, establish the fact that the defendant, the vendor, knew that his represen- tation was false, it is not necessary for the plaintiff to give other evidence to shew that the defendant intended to mis- lead the plaintiff. That is already proved '. For example : The defendant sells a horse as sound, knowing that he is not sound. Further evidence to shew the existence of an intent to defraud the plaintiff is not necessary ^ Indeed, it is probably not necessary in any case, if the cause of action is carefully stated, that it should appear that the defendant intended to injure the plaintiff. It has already been stated that a person honestly professing to have authority to act for another is liable as for fraud for the damages sustained, if he has not the authority^. In such cases it is obvious that the representation may have been made for the benefit of the plaintiff^ So too in cases in which the defendant has made the misrepresentation with knowledge of its falsity, it is plain that he may really have desired and expected that the plaintiff would derive a benefit from the transaction, § 6. Of Acting upon the Representation. It is fundamental that the defendant's representation sliould have been acted upon by the plaintiff, and acted upon to his injury, to enable him to maintain an action for 1 Foster v. Charles, 6 Bing. 396; s. c. 7 Bing. 105; Polhill r. Walter, 3 B. & Ad. 114. - Id. 3 Ante, p. 36. ^ See Polhill v. Walter, 3 B. & Ad. 114. 46 LAW OF TORTS. [PART I. the alleged breach of duty\ Indeed, fraudulent conduct or dishonesty of purpose, however explicit, will not aflPord a cause of action unless shewn to be the very ground upon which the plaintitf acted to his damage. The defendant must have caused the damage. So strong is the rule upon this subject that it is deemed necessary to this action that the damage as well as tlie acting upon the representation must already have been suffered before the bringing of the suit, and that it is not sufficient that it may occur. For example : The defendant induces the plaintift' to indorse a promissory note before its maturity by means of false and fraudulent representations. An action therefor cannot, according to American law, be maintained before the plaintiff has been compelled to pay the note". A person who has been prevented from effecting an attachment upon property by the fraudulent representa- tions of the owner or of his agent is deemed in America, and the same view would probably be entertained in Eng- land, to have suffered no legal damage tliereby, though subsequently another creditor should attach the whole property of the debtor and sell it upon execution to satisfy his own debt^. The person thus deceived, having acquired no lien upon or right in the property, cannot lose any by reason of the deceit. The most that can be said of such a case, it has been observed, is that the party intended to attach the property, and that this intention has been frus- trated*; and it could not be certainly known that that 1 Pasley v. Freeman, 3 T. K. 51 ; Smith v. Chadwick, 9 App. Cas. 187 ; Freeman v. Venner, 120 Mass. 424, - Freeman v. Venner, supra. 3 Bradley v. Fuller, 118 Mass. 239. But see Kelsey v. Murphy, 26 Penn. St. 78. ■» Id.; Lamb v. Stone, 11 Pick. 527. CHAP. I.] DECEIT. 47 intention would have been carried out'. If the attachment had been ah-eady levied and was then lost through the deceit, the rule would of course be difJei'ent". It must appear, moreover, that the plaintiff was entitled to act upon the representation ; and this will depend upon the intention of the defendant. The representation may have been intended for (1) one particular individual only (in which case he alone is entitled to act upon it), or (2) it may have been intended for any one of a class, or (3) for any one of the public, or (4) it may have been made to one person to be communicated by him to another. Anyone so intended, who has acted upon the misrepresentation to his damage, will be entitled to redress for any damage sustained by acting upon the representation^. For example : The defendants put forth a prospectus to the public, con- taining false representations for the purpose of selling shares of stock in their company. The plaintift', as one of the public, may act upon the representations, and, having bought stock of the company, recover damages for the loss sustained thereby*. § 7. Of Slander of Title and Trade marks. The foregoing presentation of the law supposes that the representation was made to or for the plaintiff. But there is another class of cases, with several branches, in which the situation is difierent. A representation may be made of a man or of his property to his injury, as well as to 1 Bradley v. Fuller, supra. 2 Id. 3 Richardson v. Silvester, L. E. 9 Q. B. 34 ; Swift v. Winterbotham, L. R. 8 Q. B. 244 ; Peek v. Gurney, L. E. 6 H. L. 377. * Id. Coutra, if the shares are bought on the market. Peek v. Guruey, supra. 48 LAW OF TORTS. [PART I. him ; still this class of cases (probably) stands upon the same footing as the cases which have been under considei'a- tion'. False representations of a person may consist, either (1) in disparaging his credit, or the title to his property, or his property itself, or (2) in infringements of his trade mark or sign or badge of business. The subject of misrepresentations made to the plaintiff of the credit of a third person has been considered"; and (in principle) there is no difference between such a case and that of misrepresentations to a third person of the plaintiff's pecuniary standing. The representation having been acted upon to the plaintiff's damage by the person to whom the defendant made it, the latter is liable for the former's loss. If the representation relate to the plaintiff's title to pro- perty or to the quality of the property itself, the wrong done is termed slander of title ; if it be an attempt to palm off the defendant's goods in trade as the goods of the plaintiff, it will commonly be the case of an infidngement of his trade mark^. In the action for slander of title, it devolves upon the plaintifi' to prove that the statement of the defendant was 1 See L. C. Torts, 54—59, 69-72. 2 Ante, pp. 26, 27. ^ An infringement of a patent, it should be observed, is not so much an attempt to obtain the benefit of another's reputation in business as to make and vend the very same article, to do which an exclusive right has been given to another. There is no necessary attempt to deceive anyone in the infringement of a patent ; and the same is measurably true of infringements of copyrights. These sub- jects, therefore, do not belong to the law of deceit. An invasion of a l^atent or a copyright is simply an invasion of a right of j^roperty, like a trespass upon real estate. Indeed, the same is now become, to some extent, true of trade marks. Leather Cloth Co. v. American Leather Cloth Co., 4 De G. J. & S. 137 ; post, p. 228. CHAP. I.] DECEIT. 4& false, was made with actual malice', and that it has been accompanied with some actual, specific damaged The interpretation put upon the elements of the action by the authorities shews that they are substantially equiva- lent to the corresponding elements of the ordinary action of deceit ^ The false representation (which clearly must have been material, and otherwise of the nature of the repre- sentation above considered) must, it seems, have been made with knowledge of its falsity and with intent to deceive ; this appears to be the meaning of the ' actual malice ' above mentioned ■*. For example : The defendant states to a third person with whom the plaintiff has made a contract for the sale of certain lands, that the plaintiff's 'title to those estates will hereafter sooner or later be contested. At the time they were sold by Mr Y [the plaintiff's vendor], he was not in a state of soundness and competency to do so.' The defendant makes this statement as trustee of the particular lands, in good faith, believing it to be true. This is no breach of duty to the plaintiff*. The same case would afford an example of the necessity of proof of actual damage by supposing that the plaintiff had not been negotiating for the sale of the lands at the time of the statement*. And the question of the defendant's liability must turn, further, upon the evidence whether the third person, to 1 Pater v. Baker, 3 C. B. 831, 868; Pitt v. Donovan, 1 Maule & S. 639. 2 Malachy v. Soper, 3 Bing. N. C. 371. See L. C. Torts, 54—59. 3 The form of declaring has been on the model of the action for slander or libel. See Bigelow, Fraud, 557, 558. But the significant facts are that the plaintiff must prove the falsity of the statement, actual malice, and damage. Such facts are no necessary part of the plaintiff's case in an action for defamation, as will be seen. 4 Pitt V. Donovan, supra. ^ Malachy v. Soper, supra. B. T. 4 50 LAW OF TORTS. [PART I. whom the defendant made the false statement, was deceived by and acted upon that particular statement. If such person knew the truth of the matter, or acted upon other information regardless of the defendant's statement, the latter could not be deemed in any proper sense to have caused the damage of which the plaintiff complains \ With regard to the law of trade marks (using this as a generic term to cover all kinds of signs and badges of busi- ness), similar observations are to be made. In order to sustain an action of deceit for a breach of duty by the defendant to the plaintiff in the use of a trade mark, it must appear (1) that the defendant knew of the existence of the plaintiff's mark when he committed the alleged wrong, (2) that he intended to palm off the goods as the goods of the plaintiff, or to represent that the business which he was carrying on was the plaintiffs business, or business of which the plaintiff had a special patronage, and (3) that the public were deceived thereby ^ For example : The defendant sells a medicine labelled ' Dr Johnson's ointment,' — the label being one which the plaintiff had previously used, and was still using when the defendant began to make use of the same. The plaintiff cannot recover 1 See Pitt V. Donovan, 1 Maule & S. 639 ; Pater v. Baker, 3 C. B. 831, 868; "Wren v. Weild, L. E. 4 Q. B. 730; L. C. Torts, ut supra. 2 Sykes v. Sykes, 3 Barn. & 0. 541; s. c. L. C. Torts, 66; Eodgers V. Nowill, 5 C. B. 109 ; Morisou v. Salmon, 2 Man. & G. 385 ; Craw- shay V. Thompson, 4 Man. & G. 357, 379, 383. See Bigelow, Fraud, 560, 565. In a proceeding for injunction it is not necessary, in ordinary cases, to prove the defendant's knowledge or intent to deceive. Simple priority of use of the mark is enough. See MiUington v. Fox, 3 Mylne & C. 338; Singer Machine Co. v. Wilson, 3 App, Cas, 376. The sub- ject of trade-marks is being gradually assimilated to the law of pro- perty, and actions for deceit are apparently becoming infrequent under the influence of a better right. CHAP, l] deceit. 51 without shewing that the defendant lias used the label for the purpose of indicating that the medicine has been prepared by the plaintiff'. Again : The plaintiff Sykes is a maker of powder-flasks and shot belts, upon which he has placed the words 'Sykes Patent.' There is no valid patent upon them, in fact, as has been decided by the courts ; but the maker has continued to use the words upon the goods to designate them as of his ow-n making. The defendant, whose name is also Sykes, makes similar goods, and puts upon them the same words, with a stamp closely resembling that of the plaintiff, so as to sell the goods ' as and for' the plaintiff's goods. This is a breach of duty^ 1 Singleton v. Bolton, 3 Doug. 293. This supposes, of course, that the medicine was not patented. - Sykes v, Sykes, supra. 4—2 CHAPTER 11. MALICIOUS PROSECUTION. § 1. Introductory. Statement of the duty. A owes to B the duty to forbear to institute against him a prosecution, with malice and with- out reasonable and probable cause, for an offence falsely charged to have been committed by B. 1. When a termination of prosecution is referred to without further explanation, such a termination is meant as will, in connexion with the other elements of the action, permit an action for malicious prosecution. 2. The word 'prosecution' includes such civil actions as may be the subject of a suit for malicious prosecution. 3. The term 'probable cause' is used for brevity in this chapter for 'reasonable and probable cause'.' In order to maintain an action for a malicious prosecu- tion, three things are necessary, and possibly four, to wit, (1) the prosecution complained of must have terminated before the action for redress on account of it is commenced; (2) it must have been instituted without probable cause; (3) it must have been instituted maliciously; (4) actual damage must be proved in cases in which the charge in itself would not be actionable, assuming that an action for ' There may be some slight difference in meaning between ' reason- able' and 'probable' cause. See the language of Tindal, C. J. in Broad v. Ham, 5 Bing. N. C. 722, 725, quoted in Lister v. Ferryman, L. E. 4 H. L. 521, 530, 540. CHAP. II.] MALICIOUS PROSECUTION. 53 malicious prosecution is maintainable in such a case. And it devolves upon the plaintiff to prove all these facts. Actions for malicious prosecution are brought, for the greater part, only for wrongful criminal prosecutions. For a civil suit instituted of malice and without probable cause there is no redress', except in peculiar cases; and these appear, at least in the main, to be cases of actions involving charges of ' scandal to reputation or the possible loss of liberty'', such as 'proceedings in bankruptcy against a trader, or the analogous process of a petition to wind up a company^'. Whether there are other cases for the action is doubtful. § 2. Of the Termination of the Prosecution. The action for a malicious prosecution is given for the preferring in court of a false charge, maliciously and with- out proper grounds. And, as it cannot be known by satis- factory evidence whether the charge is true or false before the verdict and judgment of the court trying the cause, it is deemed necessary for the defendant to await the termination of the proceeding before instituting an action for malicious prosecution. Or, as the reason has more connnonly been stated, if the suit for the alleged malicious prosecution should be permitted before the prosecution itself is terminated, inconsistent judgments might be rendered, — a judgment 1 ' In the present day, and according to our present law, the bringing of an ordinaiy action, however maliciously, and however great the want of reasonable and probable cause, will not support a subsequent action for malicious proseciition.' Quartz Hill Mining Co. V. Eyre, 11 Q. B. Div. 674, 690, Bowen, L. J. Actions for malicious civil suits are common in the United States. - Id. at p. 691, Bowen, L. J. ; Pollock, Torts, 265, 266. 3 Pollock, 266; 11 Q. B, Div. 691. 54 LAW OF TORTS. [PART I. in favour of the plaintiff in the action for the prosecution and a judgment against him in that prosecution'; and it is often said that judgment against the party prosecuted would shew, and that conclusively, that there was probable cause for the prosecution". It will be seen in the next section (relating to probable cause) that this is an erroneous view of the effect of the judgment. But since conviction would shew that the charge was not false, it would be fatal to any action for malicious prosecution. This is true even though the prose- cution take place in a proceeding from which there is no appeal. Conviction in such a case is equally fatal witli a conviction in a tribunal from the judgment of which the defendant has a right of appeal; since to allow the action for malicious prosecution would be (so it is deemed) virtually to grant an appeal; a thing contrary to law in the particular case. For example: The defendant procures the plaintiff to be arrested (falsely, maliciously, and without probable cause, as the latter alleges) and tried before a justice of the peace on a criminal complaint of assault and battery. The plaintiff (then defendant) is convicted, and no appeal is allowed by law. The defendant is not liable for malicious prosecution^. It is often said that the plaintiff must have been acquitted of the charge preferred, to enable him to sue for malicious prosecution. But this, though a clear rule of law to a certain extent, is by no means universally true. An ^ Fisher v. Bristow, 1 Doug. 215. 2 Castrique v. Behrens, 3 El. & E. 709. See Bes6be v. Mat- thews, L. R. 2 C. P. 684; 1 Smith's Leading Cases, 258, 6th ed. But an action for malicious prosecution against the present plaintiff, by proceedings against him in banki'uptey, may be maintained not- withstanding an adjudication against him, if this has been set aside. Metropolitan Bank v. Pooley, 10 App. Gas. 210. 3 Besebe v. Matthews, L. R. 2 C. P. 684. CHAP, II.] MALICIOUS PROSECUTION. 55 acquittal would, indeed, be a bar to another prosecution for the same cause ; while anything short of an acquittal in fact or in law would leave the accused still liable to trial. Nevertheless, there are several classes of cases in regard to which it is not necessary that the proceedings in the prosecution in question should have gone the length of an acquittal. These will now be shewn. It is not necessary it seems to the termination of a civil suit, such as will permit an action for malicious prosecution, that the suit should have gone to actual judgment, or even to a verdict by the jury. A civil suit is entirely within the control of the plaintiff", and he may withdraw and ter- minate it at any stage ; and, should he take such a step, the suit is terminated. For example: The defendant (in the suit for malicious prosecution) writes in the docket book, opposite the entry of the case against the plaintiff", 'Suit withdrawn.' This is a sufficient termination of the cause for the purposes of the now plaintiff"'. It is not necessary, indeed, according to American law that the party should make a formal entry of the with- drawal or dismissal of the suit, in order (without a judgment or verdict) to terminate it sufficiently for the purposes of an action by the opposite party. Any act, or omission to act, which is tantamount to a discontinuance of the pi'oceeding has the same effect. For example : The defendant, having procured the arrest of the plaintiff" in a civil cause, fails to enter and prosecute his suit. This is a termination of the proceeding ^ If, however, the (civil) prosecution went to judgment, the judgment must have been rendered in favour of the defendant therein, in order to enable him to sue for mali- 1 Arundell v. White, 14 East 216. 2 Cardival v. Smith, 109 Mass. 158. 56 LAW OF TORTS. [PART I. cious prosecution. Judgment against the defendant would conclusively establish the plaintiff's right of action ; it could not, therefore, be treated as a false prosecution', though it might have been attended with malice; — unless, indeed, it was concocted in fraud. In a criminal trial the situation is, indeed, different. Such a proceeding is instituted by the Crown, and, when by indictment, is under the control of the attorney- general, or other prosecuting officer; it is never under the control of the prosecutor. He has no authority over it; and, this being the case, he cannot, in principle, be bound by the action of the prosecuting officer. Should such officer, therefore, enter a dismissal of the suit before the defend- ant, having been duly indicted, has been put in jeopardy, this act, it seems, gives no right to the prisoner against the prosecutor. The course of proceeding was not arrested by the prosecutor, and he has a right to insist that the law shall take its regular course, and place the prisoner in jeopardy, before he shall have the power to seek redress. For example : The defendant procures the plaintiff to be indicted for arson. The prosecuting officer, failing in obtaining evidence, enters a ' nolle prosequi' before the jury is sworn. The prosecution is not terminated in favour of the prisoner". If, however, the prosecution was arrested by the grand jury's finding no indictment upon the evidence, and the consequent discharge of tlie prisoner, this is, it seems, an end of the prosecution, such as will enable him (other elements present) to bring the action under consideration^. And the same is true when the prosecution is begun by ^ Or, as the case is sometimes put, judgment for the lalaintiff would shew that lie had probable cause for the prosecution, a point to be considered hereafter. ' - Bacon v. Towne, 4 Gush. 217 (Mass., Shaw, C. J.). 3 See Byne u. Moore, 5 Taunt. 187; L. C, Torts, 181, CHAP. II.] MALICIOUS PROSECUTION. 57 complaint before a magistrate who has jurisdiction only to bind over or discharge the prisoner. The magistrate's entry that the prisoner is discharged entitles him, other elements being present, to bring an action. And this is l^rue, though the prosecutor withdraw his prosecution. For example : The defendant prefers against the plaintiff a charge of forgery before a justice of the peace, who has authority only to bind over or discharge the prisoner. The justice's minutes contain the following entry : ' After full hearing in the case, the complainant withdrew his prosecution, and it was thereupon ordered' that the plain- tiff be discharged. An action for malicious prosecution is now proper'. In none of the foregoing classes of cases has there been an acquittal of the party prosecuted, or anything tanta- mount in law to an acquittal. To be acquitted in a prose- cution for crime (the only case calling for remark), the accused must have been put in jeopardy ; but a state of jeopardy is not reached until the swearing of the petit jury. Hence if acquittal were necessary, an action for malicious prosecution could not be instituted upon the failure of the grand jury to find an indictment, or upon the discharge of a magistrate who has no power to convict. In neither case has the prisoner been in jeopardy. The fact appears to be that, notwithstanding the language of some of the judges, a termination of the proceedings with an acquittal, actual or virtual, is necessary only in case of an indictment or information against the prisoner. In other cases, it is only necessary that the prosecution should be dismissed ^ 1 Sayles v. Briggs, 4 Met. 421 (Mass.). 2 The rule requiring an acquittal of the party in-osecuted is founded upon an early English statute entitled 'Malicious Appeals'. Westm. 2 , c. 12 (13 Edw. I). By this statute it was ordained that when any 58 LAW OF TORTS. [PART I. By way of summary, the various rules of law may be thus stated : A civil suit is terminated (1) when the plaintiff has withdrawn, or otherwise discontinued, his action ; or (2) when judgment has been rendered in favour of the defendant. A criminal suit is terminated (1) when the prosecution, if brought before a magistrate, has been dismissed, or (2) when, if preferred before the grand jury, that body has found no indictment ; or (3) when, an in- dictment having been found, and the prisoner having been put in jeopardy, a verdict acquitting the prisoner has been rendered. Perhaps the prisoner should also have been discharged ; but he is entitled to a discharge in all these cases. § 3. Of the Want of Probable Cause. Supposing the plaintiff to have begun his action after the termination of the prosecution, it then devolves upon person maliciously 'appealed [that is, accused and prosecuted] of felony si;rmised upon him, doth acquit himself in the King's Court in due manner,' &c., the appellor shall be imprisoned and be liable in damages to the injured party. A few years later statutes were passed against conspiracies to indict persons maliciously. L. C. Torts, IM. Between these statutes and the statute first mentioned, and taking its shape from them, the action for malicious iDrosecution arose. Had the statute always been referred to in the modern authorities, the explanation of the subject would have been more satisfactory than it has sometimes been. The statutes applied to cases of prosecutions for felony alone; and in such cases only, it seems, is an acquittal necessary. All other cases stand, so far as the statutes affect the law, as at common law. Prosecutions for misdemeanours, prosecutions before inferior courts, and civil prosecutions, are left to the wisdom of the judges (except those falling within the statute of Malicious Distresses, in Courts Baron, which required proof only of malice and a false complaint. L. C. Torts, 192). CHAP. II.] MALICIOUS PROSECUTION. 5^ him further to establish the defendant's breach of duty by shewing that he instituted the prosecution without prob- able cause'. And this appears to mean that he ought to shew that no such state of facts or circumstances was known as would induce one of ordinary intelligence and caution to believe the charge preferred to be true. Or, conversely, probable cause for preferring a charge of crime is shewn by 'facts which would create a reasonable sus- picion in the mind of a reasonable man^.' To act, therefore, on very slight circumstances of sus- picion, such as a man of caution would deem of little weight, is to act without probable cause. For example : The defendant procures the arrest of the plaintiff upon a charge of being implicated in the commission of a rob- bery, which in fact has been committed by a third person alone, who absconds. The plaintiff, who has been a fellow- workman with the criminal, has been heard to say that he (the plaintiff) had been told, a few hours before the robbery, that the robber had absconded, and that he had told the plaintiff that he intended to go to Australia. The robber has also been seen, early in the morning after the robbery, coming from a public entry leading to the back door of the plaintiff's house. The defendant has no probable cause for the arrest^. But though the prosecutor be in a situation to shew that he had probable cause, so far as regards the strength of his information, still if he did not believe the facts and rely upon them in procuring the arrest, he has committed a breach of duty towards the person arrested. For 1 Turner v. Ambler, 10 Q. B. 252. 2 Broughtou V. Jackson, 18 Q. B. 378 ; Pantonr. Williams, 2 Q. B. 169, Ex. Ch. 3 Busst V. Gibbons, 30 Law J. Ex. 75. ComiD. Lister r. Ferryman, L. R. 4 H. L. 521, as to hearsay. 60 LAW OF TORTS. [PART I. example : The defendant goes before a magistrate and pre- fers against the plaintiff tlie charge of larceny, for which there was reasonable ground in the facts within the defend- ant's cognizance. The defendant, however, does not believe the plaintiff guilty, but prefers the charge in order to coerce the plaintiff to pay a debt which he owes to the defendant. The defendant has acted without probable cause'. The question of probable cause is to be decided by the circumstances existing at the time of the arrest, and not by the turn of subsequent events'. If the defendant had then such grounds for supposing the plaintiff guilty of the crime charged as would satisfy a cautious man, he violates no duty to the plaintiff in procuring his arrest, though such grounds be immediately and satisfactorily explained away, or the truth discovered by the prosecutor himself. For example : The defendant procures the plaintiff to be arrested for the larceny of certain ribbons, on reasonable grounds of suspicion. He afterwards finds the ribbons in his own possession. He is not liable^. On the other hand, in accordance with the same prin- ciple, if the prosecutor was not possessed of facts justify- ing a belief that the accused was guilty of the charge, it matters not that subsequent events (short of a judgment of conviction, as to which presently) shew that there ex- isted, in fact, though not to the prosecutor's knowledge, circumstances sufficient to have justified an arrest by any one cognizant of them. He has violated his duty in pro- curing the arrest. For example : The defendant to an action for malicious prosecution shews facts sufiicient to 1 Broad v. Ham, 5 Biug. N. C. 722. Had the defendant believed the charge, it could not have been material that he procured the arrest mainly for the purpose of getting his pay. ■-' Delegal v. Highley, 3 Bing. N. C. 950. 3 Swain v. Stafford, 4 Ired. 392, 398 (North Carolina). CHAP. II.] MALICIOUS PROSECUTION. 61 constitute probable cause, but does not shew that he was cognizant of such facts when he procured the plaintiff's arrest. The defence is not good'. It has, however, been frequently declared that a judg- ment of conviction is conclusive evidence of the existence of probable cause". But this, it will be seen, is inconsistent with the rule that the question of probable cause is to be determined by the state of facts within the prosecutor's knowledge (supposing him to have acted bona fide upon such facts) at the time of the arrest. Judgment of convic- tion does not, in point of fact, prove that the prosecutor at the time had reasonable grounds to suspect the guilt of the prisoner, such grounds, that is, as would have induced a cautious man to arrest the suspected person. It would be more accurate to say that the Statute of Malicious Appeals, which in reality lies at the foundation of the law concerning criminal prosecutions, by plain implication exempted the prosecutor (of felony) from liability in case of the conviction of the prisoner ^ 1 Delegal v. Higbley, 3 Bing. N. C. 950. 2 See ante, p. 54. Contra, Burt v. Place, 4 Wend. 591 (N. Y). * Ante, p. 58, n. If the statute be followed, this will be true only in cases of conviction of what was felony at common law. In other cases the conviction could not, by the statute, bar an action; nor could it bar an action for malicious prosecution on grounds of estoppel, because the parties to the two actions are different; the criminal suit being between the Crown and the prisoner. The judg- ment could not, properly taken, be more than prima facie evidence of probable cause, even if, of itself alone, it could be considered a& amounting to any evidence on that point. The question before the petit jury, as has elsewhere been observed (post, p. 63), is, not whether there was probable cause for the arrest, within the knowledge of the prosecutor, but whether the prisoner is guilty. However, the language of the decisions is that the conviction is conclusive of probable cause; and the author at one time considered this to be correct. L. C. Torts, 196, 197. 62 LAW OF TORTS. [PART I. There are other seeming anomalies relating to this phase of probable cause ; one of them is found in the effect accorded to the action of the grand jury, or to that of a magistrate who has power only to bind over the accused for trial. That action is said to furnish prima facie (i.e. sufficient) evidence in regard to probable cause, in a suit for malicious prosecution. For example : The now defend- ant prosecutes the now plaintiff before the grand jury, on a chai'ge of larceny, and the grand jury throws out the bill. This is deemed prima facie evidence of want of probable cause in the present suit'. Again: A magistrate binds over a person accused of crime, who is afterwards tried and acquitted. This is deemed prima facie evidence of probable cause in an action against the prosecutor for malicious prosecution ^. Further, it has been seen^ that in certain peculiar cases an action for a malicious civil suit may be brought. Now while it is held that the mere omission to appear and prosecute an action, whereby the defendant obtains a judgment of nonsuit, is no evidence of want of probable cause*, it is deemed that a voluntary discontinuance, being a positive act^, may shew prima facie evidence of the same. For example, taking a case from the old law which per- mitted an arrest in an ordinary civil suit : The now defend- ant procures the now plaintiff to be arrested and held to bail in an action on contract. The case comes on for trial very shortly afterwards, and the plaintiff discontinues his 1 See Nicholson v. Coghill, 6 Dowl. & E. 12, 14, Holroyd, J.; Broad v. Ham, 5 Bing. N. C. 722, 727, Coltman, J. - See Reynolds v. Kennedy, 1 Wils. 232; Sutton v. Johnstone, 1 T. R. 493, 505, 506. 3 Ante, p. 53. ^ Sinclair v. Eldred, 4 Taunt. 9; Webb v. Hill, 3 Car. & P. 485. 5 Sed qu. of the relevancy of such fact. CHAP. II.] MALICIOUS PROSECUTION. 63 suit. This is deemed prima facie evidence of want of pro- bable cause'. Again, the mere abandonment of the prosecution by the prosecutor, and the acquittal of the prisoner, are no evidence of a want of probable cause". Such facts in them- selves shew nothing except that the prosecution has failed. It may still have been undertaken upon reasonable grounds of suspicion ^ But it is held that the circumstances of the abandonment may be such as to indicate px'ima facie a want of probable cause. For example : The defendant presents two bills for perjury against the plaintiff, but does not himself appear before the grand juiy, and the bills are ignored. He presents a third bill, and, on his own testi- mony, the grand jury return a true bill. The defendant now keeps the prosecution suspended for three years, when the plaintifi', taking down the record for trial, is acquitted ; the defendant declining to appear as a witness, though in court at the time and called upon to testify. These facts indicate the absence of probable cause*. The American courts have had difficulty with several of these same questions. While it has been both hekP and denied'' that a judgment of guilty by a trial magistrate is conclusive of probable cause, it has been held by some courts, as in England, that the finding of a committing magistrate is prima facie evidence in the suit for malicious 1 Nicholson v. Coghill, 6 Dowl. & K. 12; Webb v. Hill, 3 Car, & P. •485. " Willans v. Taylor, 6 Bing. 183 ; Vanderbilt v. Mathis, 5 Duer, 304; s. c.L. C. Torts, 178. ^ The magistrate or grand jury decides whether there is reasonable ground for putting the prisoner upon trial; the petit jury decides whether the prisoner is guilty. * Willans v. Taylor, 6 Bing. 183. 5 Whitney v. Pecldaam, 15 Mass. 243. ^ Bui-t V. Place, 4 Wend. 591, 598 (N. Y.). 64 LAW OF TORTS. [PART I. prosecution'; a discharge being treated as prima facie evidence of want of probable cause ^, and a commitment as prima facie evidence of the contrary ^ Other American courts have taken a different view of the matter, denying that the magistrate's action is sutfi- cient evidence in the action for malicious prosecution. How can it be, they say in effect, that what is no evidence at all before the grand jury in the same case can be prima facie evidence before a petit jury in a different case'"? To this reasoning it might be added that the magistrate (and the same would be true of the grand jury) does not consider what prompted the prosecutor, but whether there is now sufficient evidence to justify holding the accused further for trial. But the contrary doctrine, after all, is only a doubt- ful application of the rule of the relevancy of a later fact to prove an earlier. If the prosecutor take the advice of a practising lawyer upon the question whether the facts within his knowledge are such as to justify a complaint, and act bona fide upon the advice given, he will be protected even though the counsel gave erroneous advice. That is, he will be protected, though in fact he might not have been in possession of facts such as would have justified a prosecution without the advice. For example : The defendant states to his attorney the facts in his possession concerning a crime supposed to have been committed by the plaintiff. The attorney advises the defendant that he can safely procure the plaintifl^'s arrest. The defendant is not liable, though the facts presented did not in law constitute probable cause*. 1 Burt V. Place, 4 Wend. 591, 598 (N. Y.); Bacon v. Towne, 4 Cush. 217 (Mass.). - Bostick V. Rutherford, 4 Hawks, 83 (North Carolina). 3 Burt V. Place and Bacon v. Towne, supra. 4 Israel v. Brooks, 23 111. 575. ^ gnow v. Allen, 1 Stark. 502. CHAP. II.] MALICIOUS PROSECUTION. 65 The prosecutor must, however, as the proposition itself states, act bona fide upon the advice given, if he rest his defence upon such a ground alone'. For example: The defendant procures the arrest of the plaintift', having first taken the advice of legal counsel upon the facts. This advice is erroneous, and it is not acted upon in good faith, believing it to be correct; the arrest being procured for the indirect and sinister motive of compelling the plaintift' to sanction certain illegal bonds. The defendant is liable^. If, after taking legal advice and before the arrest, new facts come to the knowledge of the prosecutor, he can- not justify the arrest as made on advice, unless such new facts furnish further evidence of the guilt of the suspected party. If they should be of a contrary nature, casting new doubt upon the party's guilt, the prosecutor cannot safely proceed to procure an arrest except upon new advice ; unless indeed the entire chain of facts in his possession shall satisfy the court that there existed a reasonable ground for his action. To make use of the advice given, when the new facts indicate that the accused is not guilty, is not to act upon the advice in good faith ^ Again, if the only defence be that the prosecutor acted upon legal advice, a breach of duty may still be made out if it appear that the prosecutor untruly stated to the attorney the facts within his knowledge. The plaintiff's case, so far 1 The prosecutor might plead both the advice of counsel and also the facts themselves within his knowledge; and if then it should appear that he did not act upon the advice in good faith, or that he did not state all the facts to the attorney, he would still be protected, probably, if the facts should shew a reasonable groiind for the arrest. - Eevenga v. Mackintosh, 2 Barn. & C. 693. See Hewlett v. Cruchley, 5 Taunt. 277, 283. 3 See Fitzjohn v. Mackinder, 9 C. B., N. S. 505, 531, Ex. Ch. Cockburn, C. J. B. T. 5 66 LAW OF TORTS, [PART I. as it rested on the proof of want of probable cause, would be established by shewing that the actual facts known to the prosecutor (differing from those on which the advice was obtained) shewed that he had' no reasonable ground for instituting the prosecution. The result is, that the defence of advice of legal counsel, to establish probable cause, must not be resorted to as a mere cover for the prosecution, but must be the result of an honest and fair purpose ; and the statement made at the time by the prosecutor to his counsel must be full and true, and con- sistent with that purpose'. This defence of having acted upon legal advice is, it seems, a strict one, confined to the case of advice obtained from lawyers admitted to practise in the courts. Such persons are certified to be competent to give legal advice, and their advice when properly obtained and acted upon is conclusive of the existence of probable cause. But if the prosecutor act upon the advice of a person not a lawyer, and therefore not declared competent to give legal advice, the facts must (probably) be shewn upon which the advice was obtained, however honestly and properly it was sought and acted upon. It is not enough in America that the advice was given by an officer of the law, professing familiarity with its principles, if such a person were not a lawyer. For example: The defendant procures the arrest of the plaintiff upon advice of a justice of the peace, with whom he has been in the habit of advising on legal matters; but the justice is not a lawyer. This is not evidence of probable cause ^. The want of probable cause cannot be inferred from mere evidence of malice, since a person may maliciously prosecute another whom he has the strongest evidence against; whom, 1 Walter v. Sample, 25 Penn. St. 275. 2 Beal V. Robeson, 8 Ired. 276 (North Carolina). CHAP. II.] MALICIOUS PROSECUTION. 67 indeed, he may have caught in the commission of the crime'. Thei'e must be some evidence, apart from the proof of malice, indicating that the prosecutor instituted the suit under cir- cumstances which would not have induced a cautious man to act. It should be observed, finally, that it is necessary for the plaintiff, even in a jury case, to convince the judge of the want of probable cause upon the facts proved. The facts material to the question of probable cause must be found by the jury ; but the judge decides whether the facts so found establish probable cause or want of it". § 4. Of Malice. The plaintiff, to make out a breach of duty by the defend- ant, must also produce evidence such as will indicate that the prosecution was instituted with malice towards the accused. Malice cannot be inferred from tlie mere proof of a want of probable cause ^, any more than want of probable cause can be inferred from mere proof of malice. A man may institute a prosecution against another without the least motive of malice towards him, though he had not adequate grounds for doing so. The jury must be allowed, and it is their duty, to pass upon the question of malice as a distinct matter. There is, therefore, no such thing in the law of malicious prosecution as the implied malice or malice in law of slander and libel*. For example : Evidence having been introduced in an action for a malicious prosecution, which shewed that the defend- ant had instituted the prosecution without probable cause, 1 Turner v. Ambler, 10 Q. B. 252, 257. 2 Panton v. Williams, 2 Q. B. 169, Ex. Ch.; Lister v. Ferryman, L. K. 4 H. L. 521. 3 Vanderbilt v. Mathis, 5 Duer, 30-4 ; L. C. Torts, 178. ^ Mitchell V. Jenkins, 5 B. & Ad. 588. 5—2 68 LAW OF TORTS, [PART I. the judge instructs the jury that there are two kinds of malice, malice in law and malice in fact, and that in the present case there was malice in law because the prosecu- tion was wrongful, being without probable cause. This is erroneous; the existence of malice is a question for the jury'. The evidence offered to establish the facts which so to shew the want of probable cause may, however, indicate the existence of malice ; and in such a case the jury may find the existence of a malicious motive without further proof. But there must be some evidence indicating actual malice". It is not necessary, however, notwithstanding the lan- guage of some of the old decisions^, to prove the existence of an intense hostility and rancour : evidence of slight hostility, or of the existence of any sinister motive, or indirect motive of wrong, is sufficient. For example : The defendant is shewn to have displayed unnecessary zeal in a prosecution of the plaintilf, by publishing the proceedings against him. This is evidence of malice'. "&" § 5. Of Damage. If the charge upon which the prosecution was instituted was of the commission of a charge such as (being untrue) would have constituted actionable slander had it not been preferred in court, the plaintiff, upon proof of the termina- 1 Mitchell V. Jenkins, 5 B. & Ad. 588. 2 Id. 3 Savil V. Roberts, 1 Salk. 13. * Chambers v. Robinson, 2 Strange, 691. See Stevens v. Midland Ry. Co. 10 Ex. 356, that by the term malice is meant any indirect motive of wrong. ' Any motive other than that of simply instituting a prosecution for the purpose of bringing a person to justice is a malicious motive.' And see Abrath v. North Eastern Ry. Co. 11 Q. B. Div. 440, 450, where Bowen, L. J. spoke of proceedings 'initiated in a mahcious spirit, that is, from an indirect and improper motive, and not in furtherance of justice.' CHAP. II.] MALICIOUS PROSECUTION. 69 tion of the prosecution, the want of probable cause, and malice, has made out a case, and is entitled to judgment. It is not necessary for him to prove that he has sustained any pecuniary damage. For example : The defendant causes the plaintiff to be indicted for the stealing of a cow, falsely, without probable cause, and of malice. The plaintiff is entitled to recover without producing evidence that he has sustained any actual damage'. But it has been decided that it is only for the prosecu- tion of a charge the verbal imputation of which in pais would constitute actionable slander that the mere institu- tion of the prosecution can be actionable without specific damage'. For example: The defendant falsely prefers against the plaintiff a simple charge of assault and battery, without cause and with malice. The plaintiff cannot recover for a malicious prosecution without proof of actual pecuniary damage^. It follows that this action for a malicious prosecution cannot be maintained without proof of damage when the prosecutor has procured the indictment of the plaintiff for the commission of that which is not a criminal offence. For example : The defendant procures the plaintiff to be indicted for the killing of the former's cattle. The plaintiff must prove special damage; the offence, though charged as a crime, being only a trespass'*. § 6. Of Analogous Wrongs. If the prosecution fail by reason of the circumstance that 1 See Byne v. Moore, 5 Taunt. 187, Mansfield, C. J. ; s. c. L. C. Torts, 181; Frierson v. Hewitt, 2 Hill, 4'J9 (South Carolina). - Byne v. Moore, supra. See Quartz Hill Mining Co. v. Eyre, 21 Q. B. Div. 674, 692. ■' Byne v. Moore, supra. * Frierson v. Hewitt, supra. 70 LAW OF TORTS. [PART I. the court in issuing its warrant exceeded its jurisdiction, or that the warrant or indictment was defective, it might not be clear in principle whether the accused should sue for malicious prosecution or for slander ; supposing the charge to have been defamatory. It would give him an obvious advantage to sue for slander since then he would not be compelled to prove a want of probable cause or the existence of malice ; and the proper remedy is deemed to be an action for malicious prosecution \ In this connection attention should be directed to actions for abuse of the process of the courts. An action is given by law for such an act without requiring the plaintiff to prove either the termination of the proceeding in which the abuse of process has taken place, or the want of probable cause for instituting that proceeding. For example : The defendant under process of the court in an action for a debt not due, procures the plaintiff through duress to deliver valuable property (a ship's register) to him. The defendant is liable in damages, without evidence of the termination of the suit or of the want of probable cause". Nor (probably) need malice be proved^. To maintain such an action, however, the plaintiff's case must be something other than a proceeding for a malicious prosecution. The ground of action must be, not a false prosecution (that is, a prosecution upon an accusation which has been tried and not sustained), but an unlawful use of legal process; and such an act may be committed as well in the course of a well-founded prosecution as in a false one. 1 Pippet V. Hearn, 5 B. & Aid. 634. 2 Grainger v. Hill, 4 Bing. N. C. 212; s. c. L. C. Torts, 184. 3 No question was raised on this point in Grainger v. Hill, supra ; but there can be no doubt of the correctness of the statement of the text, if the action was not in reality for a malicious prosecution. CHAP. II.] MALICIOUS PROSECUTION. 71 If the wrong suffered consist in an unlawful arrest, the action will be for a false imprisonment, of whicli hereafter, or for a malicious arrest 'j if it consist in an unlawful extor- tion of a contract or of property, the action will in substance be for duress, an example of which has already been given". Other instances may be found in actions for malicious issu- ance of a warrant^, the levying of an execution for more than is due'*, and the malicious causing an extent to issue against one on behalf of the Crown*. These are cases of the wrongful resort to rather than of abuse of process. Recent decisions have also brought to light the existence of a right of action for maintenance''. This is a tort founded upon early statutes making maintenance a criminal offence ' ; an action for damages being permitted only where the de- fendant has aided the prosecution of some suit in which he had no interest, or, it seems, motive other than that of stirring up or keeping alive strife. It has lately been de- cided that if the defendant's action was based on charity, reasonable or not, the action will fail". 1 Jenings v. Florence, 2 C. B., N. S. 467. See 32 & 33 Vict. c. 62, § 18; Daniels v. Fielding, 16 M, & W. 200; Gibbons v Alison, 3 G. B. 181. 2 In case a contract were thus obtained, the injured party could elect to affirm the validity of the contract, and sue for the duress, or he could deny the validity of the agreement, and plead the duress in an action upon it. 3 Cooper V. Booth, 3 Esp. 135; Phillips v. Naylor, 4 H. & N. 565. •* Churchill v. Siggers, 3 El. & B. 938; Jenings v. Florence, supra. 5 Craig V. Hasell, 4 Q. B. 481. '^ Bradlaugh v. Nevvdegate, 11 Q. B. D. 1 ; Harris v. Brisco, 17 Q. B. Div. 504 ; MetropoHtan Bank v. Pooley, 10 App. Cas. 210. '■ It is doubtful if a corporation can be liable for the offence. 10 App. Cas. at p. 218, Lord Selborne. 8 Harris v. Brisco, supra. CHAPTER III. CONSPIRACY. § 1. Introductory. Statement of the duty. A owes to B the duty to forbear to carry out, wholly or partly, against him, to his damage, any unlawful conspiracy entered into with C. The law of conspiracy, in its civil aspect, has been treated as a branch of the law of malicious prosecution; and with that subject it has, indeed, in one of its features, a close connexion. Civil actions for conspiracy were for- merly instituted, in most cases, for redress on account of unlawful combinations for instituting criminal prosecutions of the grade of felony. Combinations for other unlawful purposes were redressed in other forms of actions; generally, it appears, in an action of deceit, sometimes, however, in an action of trespass. Distinct and peculiar rules of law prevailed in former times concerning conspiracies of the first-named class. A writ of conspiracy could be sustained only by proof of an actual combination to indict the plaintiff of felony, with the other elements of an action for malicious prosecution. Failure to prove the combination was fatal, even though enough were proved to establish a I'ight of action for a simple false prosecution. The action for the latter offence was a distinct proceeding. In later times the writ of con- CHAP. III.] CONSPIRACY. 73 spiracy was employed for the redress of prosecutions below the grade of felony ; and then it came to be considered un- necessary, in such an action, to establish an actual combina- tion, notwithstanding the allegation of conspiracy. The law, however, relating to prosecutions for felony remained as before, and the plaintifi" failed if the evidence shewed that the prosecution was instituted or procured by but one person'. This distinction, however, has in modern times become obsolete. An action for an alleged conspiracy can now be maintained in any case otherwise proper, though the plain- tiff be unable to prove that the unlawful act complained of was undertaken by more than one person^. The result is, that conspiracy as a ground of civil liability has nearly dis- appeared from the English law^, leaving little else than a phase of agency. The existence, then, of an actual con- spiracy being unnecessary to the plaintifi''s action, nothing remains, if he prove against but one person, except that which would be the ground of action against that person had he been alone sued. The case would then be nothing more than an action for deceit, malicious prosecution, false imprisonment, or other like tort, according to the nature of the wrong actually provable. But it would hardly be satisfactory to leave the subject here. If it be said of conspiracy, as it may be, that it is no longer the ground of civil redress even when damage has followed, it may be answered that the same is true of malice 1 See upon this subject the historical notes on maHcious prosecu- tion and conspiracy, in the author's Leading Cases on Torts, jjp. 190—196, 210—214. - Savill V. Roberts, 1 Lord Raym. 374, 379; 1 Saund. 230, note; Mogul Shipping Co. v. McGregor, coram Lord Coleridge, Aug. 1888 ; Hutchins v. Hutchins, L. C. Torts, 207. 3 The case is different witb criminal liability ; that remains a great branch of the law. 74 LAW OF TORTS. [PART I. generally; nor is fraud alone a ground of liability. And though conspiracy may not be an element of liability in the same sense that either of these may be, still there are cases where the defendant's liability turns wholly upon the question of the existence of a conspiracy and his participation therein. It may become important then to know whether in a particular case there has been a conspiracy. There are, indeed, three phases of the subject which make it important to consider conspiracy in a book on torts. First, the plaintiff may have so stated his case against a de- fendant, who did not in fact participate in the doing of the liarm complained of, as to be unable to recover with evidence of anything, such as an ordinary agency, short of conspi- racy ' ; the existence of a conspiracy has then become an element of his case. Secondly, the case may be such that no damage could be inflicted, in rerum natura, without an unlawful combination^. Thirdly, it may be that in a case turning on malice, e.g. a case of malicious prosecution, the only means of proving the malice is to prove a conspiracy. § 2. Of Malice and the Combination. In the sense of the existing law, a conspiracy is simply a confederacy or combination of two or more persons to commit an unlawful act, or to do a lawful act in an unlaw- ful manner. The wrong is a phase of malice ; the conspiracy itself constituting, or at least forming evidence of, the malice alleged by the plaintiff^. To make a party liable with others for a conspiracy resulting in damage, he must either have originally colluded with the rest, or afterwards joined them as an associate, or 1 See Gregory v. Brunswick, 6 Man. & G. 953, 959. ■' Id. ^ Id. 205, 953. CHAP. III.] CONSPIRACY. 75 actually participated in the execution of the scheme, or afterwards adopted it. A defendant cannot be found guilty by evidence of mere silent observ^ation, even with approval, of the conspiracy. For example : The defendant is shewn to have been cognizant of, and to have (silently) approved, the unlawful enticing away of the plaintiff's daughter. This is not sufficient to establish a conspiracy and breach of duty ; the defendant not having thereby become a party to the plot'. Nor is it material, where the object of the unlawful com- bination is plunder and gain to the conspirators, that some of them derive no benefit from the execution of the scheme. They are equally liable, though the overt acts were com- mitted by others who refused to divide, or failed to obtain, the spoil. For example : Several agents, of whom the defendant is one, conspire to injure their common princi- pal, and succeed ; the defendant is liable though he derives no benefit from the success". It is equally well settled that though there was no inten- tion of making a profit out of the scheme, but only a desire to harass and inflict loss upon the plaintiff, the action is maintainable. For example : The defendant, an attor- ney, knowing that his client has no just claim against the plaintiff, maliciously and without probable cause, procures, in concert with his client, an arrest and civil prosecution of the plaintiff. The defendant is liable for the damage sustained by the plaintiff^. Again, as has already been suggested, there may be cases in which the wrong could not be done without an unlawful combination ; in such a case proof of conspiracy must, it seems, be made. Thus, one man alone could hardly 1 Brannock v. Bouldin, 4 Ired. 61 (North Carolina). 2 Walsham v. Stainton, 1 De G. J. & S. 678. 3 stockley v. Hornidge, 8 Car. & P. 11. 76 LAW OF TORTS. [PART I. succeed in hissing an actor off the stage ; and though others might join him, there would probably be no redress, however unjust the act. But preconcert would make a different case. For example : The defendant and others conspire to prevent the plaintiff, an actor, from performing at a theatre, and, in pursuance of the conspiracy, employ others to go to the theatre and interrupt the plaintiff in his part, and the plan is carried out, to the damage of the plaintiff. The defendant is liable', § 3. Of Damage. It is of the essence of liability for conspiracy, when conspiracy is made a ground of civil action, that it cause damage. For example : The defendants are alleged to have conspired together, maliciously and without probable cause, to institute, and to have instituted, an action against the present plaintiff in the name of a third person, for their bene- fit. No damage is alleged. The plaintiff cannot recover ^ 1 Gregory v. Brunswick, 6 Man. & G. 205, 953. 2 Cotterell v. Jones, 11 C. B. 713. CHAPTER IV. MALICIOUS INTERFEEENCE WITH CONTRACT. i:? 1. Introductory. Statement of the duty. A owes to B the duty to forbear to induce, maliciously, C to break a contract between B and C (to B's special damage ?). § 2. Op Malice. The subject of malicious interference with the contracts of othei's, causing a breach of them, is a tort of but recent distinct and settled recognition. To entice away a servant from his master has been wrongful from early times ' ; but that is a statutory doctrine", peculiar, it seems, to the case of servants who labour with their hands ^. In such cases it is not necessary that the act of the defendant should have been malicious. Since the year 1853 it has been held that for a third person maliciously to induce a party to a contract to break his undertaking is actionable, at least if damage ensue. For example : W is under an engagement with the plaintiff 1 See Lumley v. Gye, 2 El. & B. 216; s. c. L. C. Torts, 306. This case is an epitome of the history of the whole subject. See especially the dissenting opinion of Mr Justice Coleridge. 2 Statute of Labourers, 23 Edw. 3. 3 Wightman, J. in Lumley v. Gye; Bowen v. Hall, 6 Q. B. Div. 333. 78 LAW OF TORTS. [PART I. to sing exclusively at his theatre for a certain season. The defendant 'maliciously intending to injure the plaintiff' induces W to break her contract and refuse to sing for the plaintiff during the time agreed upon. This is a breach of duty'. What the term ' malice ' means in such a case was not left quite clear by the case cited. An expression of Mr Justice Crompton in that case might indicate that to cause the breach with notice of the existence of the contract would be sufficient to constitute malice ^ ; but that would be to put a dangerous check upon common and generally deemed lawful acts of competition, and something more than this has accordingly been deemed necessary ^ In a late reconsideration of the subject in a similar case of con- tract for exclusive services, not manual, the Court of Appeal treated malice as a necessary part of the plaintiff's case, and considered the term as meaning that the defendant must have sought to induce the party to break his contract 'for the indirect purpose of injuring the plaintiff, or of benefiting the defendant at the expense of the plaintiff*.' A malicious act of that kind was held to be a wrongful act^. This appears to mean that the act is shewn to be wrongful if the plaintiff shews that it was done without any just motive, or without the existence of any right ''. 1 Lvimley v. Gye, supra. 2 ' It must now be considered clear law that a person who wrong- fully and maliciously, or, which is the same thing, with notice, interrupts the relation subsisting between master and servant,' &c. 2 See Pollock, Torts, 452, where the point is strongly urged. 4 Bowen v. Hall, 6 Q. B. Div. 333, 338, Lord Esher; Lord Coleridge dissenting. The argument that the damage was caused, not by the defendant, but by the party who broke his contract, was answered by Lord Esher's saying that the result was both intended and brought about by the defendant. ^ Id. 6 See Walker v. Cronin, 107 Mass. 555, 562, 564. Welles, J. for CH. IV.] MALICIOUS INTERFERENCE WITH CONTRACT. 79 § 3. Op Damage. Whether other damage than that of the breach of the contract is necessary has not been clearly determined ; though there is intimation that it is\ It is enough to con- stitute damage, however, at least in America, that a service for no fixed time, and therefore at will, has been interrupted. For example : The defendant maliciously induces journey- men shoemakers to leave the plaintift''s employment. This is a breach of duty, for the plaintiff was entitled to the fruits and advantages to arise from a continuance of the employment ^ It will be seen that in the example given there is not so much as a breach of contract, for the shoemakers, being journeymen, had a right to leave at any time. There was, however, legal damage because the plaintiff had a right to receive their services, without interference by others, so long as they were disposed to give them ; he would have a right against others to the enjoyment of their services even as a gratuity ^ It is doubtful, however, whether interference with such a right, or with that in the example, could, in itself, be considered special damage. There may be ground then for considering the question as the court : ' Every one has a right to eujoy the fruits and advantages of his own enterprise, skill, and credit. He has no right to be pro- tected against competition; but he has a right to be free from malicious and wanton interference, disturbance, or annoyance. If disturbance or loss comes... from the merely wanton or malicious acts of others, without the justification of competition or the service of any interest or lawful i^urpose, it then ' is unlawful. 1 See Bowen v. Hall, 6 Q. B. Div. 333, 337; Pollock, Torts, 451, ■452. Special damage was alleged in Lumley v. Gye, and shewn in Bowen r. Hall. - Walker v. Cronin, 107 Mass. 555. ^ See post, Part II. ch. iii. § 8 ; ante, p. 12, in Introduction. 80 LAW OF TORTS. [PART I. still an open one, whether for the purposes of this action special damage must be proved \ § 4. Conclusion : Contract not Property, What has been said in exposition of the statement of the duty in question will, regardless of the question of special damage, serve to shew, when read in contrast with cases of wrongs to property in the ordinary sense, that contract is not treated as property, though the first impres- sion from the subject might be that it was. The distinction between rights of property and rights of contract is not impugned. The former are absolute, and breach of them is a breach therefore of an absolute duty ; that is to say, it is not necessary to consider the motive with which an inter- ference with a right of property takes place. Nor indeed is special damage necessary to constitute the tort. 1 Walker v, Cronin, however, is -within the Statute of Labourers, and the courts may think it best in other cases to require proof of special damage. CHAPTER V. SLANDER AND LIBEL. § L Introductory. Statement of the duty. A owes to B the duty to forbear to publish of B (1) defamation in its nature actionable per se, (2) defamation in its nature not actionable per se to the damage of B. L Defamation is any language or representation, oral or written, tending to bring the person of whom it is published into hatred, ridicule, or disgrace, or to injure him in respect of his vocation. 2. The term 'representation' is here used to deftote painting, picture, sign, or effigy. 3. Slander is oral defamation. 4. Libel is defamation by writing, printing, or repre- sentation. 5. Publication is the making defamation known to a third person. 6. Whenever language is spoken of as defamatory it is understood to be false. 7. What the phrase ' defamation in its nature action- able per se ' means will be made known by the proposition of law following, and the consideration of its parts. The general proposition of law is, that the first of the two above-stated duties is violated by A by the publication of words, language, or representations of a false and defama- B. T. 6 82 LAW OF TORTS. [PART I. tory character concerning B, in either of the following ways : (1) where A imputes to B the commission of a criminal offence punishable by imprisonment, or other corporal penalty, in the first instance'; (2) where he imputes to B the having a contagious or infectious disease of a dis- graceful kind; (3) where he makes an imputation concerning B in respect of his office, business, or occupation ; (4) where he makes an imputation concerning B tending to disinherit him; (5) where the defamation is a libel. Each of these classes of defamation must be examined. § 2. Of the Interpretation op Language. Before proceeding to the consideration of any of these classes of breaches of duty, it should be observed that, sub- ject perhaps to one exception, the language or representation complained of is to be understood presumptively in its natural and usual sense, i.e. in the sense in which the persons who heard or read or saw it, as men of ordinary intelligence, would understand it^. It is not to be construed in a milder sense (mitiori sensu) merely because it is capable, by a forced construction, of being interpreted in an innocent sense. For example : The defendant publishes of the plaintiff the following words; "You are guilty of the death of D." This is an imputation of the commission of murder, and is not to be construed mitiori sensu ^. 1 Pollock, Torts, '209. It is not enough that the offence is punish- able by 'fine in the first instance, with possible imprisonment in default of payment'. Id., referring to Webb v. Beavan, 11 Q. B. D. 609. The offence charged need not be indictable. Webb v. Beavan. 2 Hankinson v. Bilby, 16 M. & W. 442 ; Simmons i\ Mitchell, 6 App. Cas. 156. Whether the words are legally defamatory or not is, commonly at least, a question of law. Capital Bank v. Henty, 7 App. Cas. 741. 3 Peake v. Oldham, 1 Co^vp. 275 ; s. c. L. C. Torts, 73. CHAP, v.] SLANDER AND LIBEL. 83 It should, however, be clear, in order to make language actionable without proof of damage, that the imputation was slanderous or libellous (according to its nature) within the meaning of some one of the above-stated five classes. If this be not the case it will not be deemed a breach of the duty ; and this too wliether the question of interpretation come before the court or before the jury. In one case, at least, the interpretation adopted has been apparently con- trary to the understanding of men of ordinary intelligence; and that is where an imputation is made of what would ordinarily be understood as a crime, but the language of which does not necessarily import a crime in the legal sense. Such at least is the case in America. For examj^le: The defendant publishes of the plaintiff the following words : 'He has taken a false oath against me in Squire Jamison's court.' This is deemed not to be an imputation of tlie com- mission of perjury' ; the term 'perjury' signifying the taking of a false oath knowingly, before a court of justice, with reference to a cause pending. Apart from this particular exception in regard to the legal sense of a crime, it follows from what has been said that it is immaterial whether the defamatory chai^ge be affirmative and direct, or indirect so as to be matter of inference merely, or that it is ironical, or that it is made in allegory or other artful disguise. It is enough that the charge would naturally be understood to be defamatory by men of average intelligence. 1 Ward V. Clark, 2 Johns. 10 ; s. c. L. C. Torts, 81. ' The offence need not be specified... at all if the words impute felony generally. But if particulars are given, they must be legally consistent with the offence imputed.' Pollock, Torts, 210, referring to Jackson v. Adams, '2 Bing. N. C. 402. 6—2 84 LAW OF TORTS. [PART I. § 3. Of the Publication of Defamation and Special Damage. In accordance with observation 5, supra, it should be noticed that defamation is not published when addressed only to the plaintiff'. That is, the language or representation cannot in such a case be actionable. And this is true, though the alleged wrong be directly followed by great de- jection of mind on the part of the plaintiff, and consequent sickness and inability to carry on his usual vocation, and expense attending upon his restoration to health or upon the employment of help to carry on his business. For example : The defendant says to the plaintiff, ' You stole my horse.' The plaintiff, a farmer, suffers immediate distress of mind and body, becomes sick and unable to attend to his work, his crops suffer, and he is compelled to employ extra help to carry on necessary work. The defendant has not violated any legal duty to the plaintiff^ Indeed, if the language or representation complained of be not actionable per se (that is, if it be not actionable without the proof of some special damage), the fact that the publication of the defamation occurred in the presence of a third person who (by authority) reported it to the plaintiff' with such a result as that stated in the foregoing example, would not make the defamer liable^. Tliis, however, proceeds upon the ground that the effect of distress merely is not such damage as the law regards when the defamation is not actionable per se. The rule of 1 Communication of defamation by the defendant to his wife is not publication. Weunliak v. Morgan, 20 Q. B. D. 635. 2 Compare Terwilliger v. Wands, 17 N. Y. 54, 63, and Wilson v. Goit, Id. 442, which, taken together, Justify the example. 3 TerwiUiger v. Wands, 17 N. Y. 54, 63, reaffirmed in Wilson v. Goit, Id. 442, and overruling Bradt v. Towsley, 13 Wend. 253, and Fuller V. Fenner, 16 Barb. 333. CHAP, v.] SLANDER AND LIBEL. 85 law upon this subject is, that defamation not actionable per se (that is, defamation not included under any of the five heads) may be a breach of duty if it be attended with special damage. But special damage (and damage of a general nature as well) must be the natural and usual result of the wrong complained of, just as effect follows a true cause ; and, in relation to defamation, it is deemed that nothing else than damage resulting from injury to character comes within the principle. Damage resulting from /ear of injury to character, or from wounded feelings, is not alone damage to chai'acter, since character can only be injured when it has been defamed before a third person, except in that it may have been injured in the eyes of the defendant himself; but for this the defendant is not legally liable. The damage complained of must then in all cases, whether general or special, have been sustained through the action of a third person. Special damage roay so result in several ways, so as to make the publication of defamation actionable when it would not be actionable per se; as by the loss of a marriage. For example : Tlie defendant chai'ges the plaintiff, an unmarried female, with unchastity in the presence and hearing of C, to whom the plaintiff is engaged to be married. C, in consequence of the chai'ge, immediately terminates the engagement. The defendant is liable to the plaintiff '. The same would be true of the loss of the consortium of a husband '^ The same would also be true of the refusal to the plaintiff of civil entertainment at a public-house^. So of the fact that the plaintiff has been turned away from the house of her uncle, and charged not to return until she 1 See Terwilliger v. Wauds, 17 N. Y. 54, 60. ^ Lynch v. Kniglit, 9 H. L. Cas. 577. 3 Olmsted v. Miller, 1 Wend. 506 (N. Y.). See Moore v. Meagher, 1 Taunt. 39. 86 LAW OF TORTS. [PART I. shall have cleared up her character'; and so in general of the loss by the plaintifi' even of gratuitious hospitable enter- tainment". The peculiarity of the law of slander and libel arises, however, in the case of defamation actionable per se ; and the consideration of the special phases of such defamation will now follow. But let it be again observed, that in defa- mation arising under any of the heads now to be separately examined, the plaintiff establishes the breach of duty, and consequently his right to recover, without proof of damage'^. § 4. Op the Imputation of having Committed a Crime. The authorities are not altogether in harmony in regard to the question whether it is necessary that the charge, if true, wovild subject the object of it to punishment, or whether the test in this particular is the degradation in- volved; but the weight of authority favours the latter as the test, assuming that the offence charged is in law a crime. Although, then, the charge shew that the punishment has already been suffered, and do not render the plaintiff liable to indictment, the degradation involved in the (false) accusation renders the defendant liable. For example: The defendant says of the plaintiff, 'Robert Carpenter [the plaintiff] was in Winchester jail, and tried for his life, and would have been hanged had it not been for L, for breaking open the granary of farmer A, and stealing his bacon.' The defendant is liable*. Again: The defendant says of the plaintiff, ' He was arraigned at Warwick for stealing of twelve hogs, and, if he had not made good friends, it 1 Williams v. Hill, 19 Wend. 305 (N. Y.). - Id. ; Moore v. Meagher, 1 Taunt. 39. •' Webb V. Beavau, 11 Q. B. D. 609. •* Cai-penter v. Tarrant, Cas. Temp. Hardw. 339. The words were false. CHAP, v.] SLANDER AND LIBEL. 87 had gone hard with him.' The defendant is liaVjle ' . Again: Tlie defendant says of the plaintift', 'He is a convict, and has been in the Ohio penitentiary.' The plaintiff is entitled to maintain an action, the words being false'. § 5. Of the Imputation of having a Contagious or Infectious Disease of a Disgraceful Kind. By the early common law a charge to come under this head must have been of the having the leprosy, or the plague, or the syphilis. At the present time the duty has come to be so far enlarged as to require the forbearance from publishing false accusations concerning another of the having any disease of a contagious or infectious nature involving disgrace. For example : The defendant falsely charges the plaintiff with having the gonorrhoea. This is actionable per se^. This doctrine of law proceeds upon tlie ground that charges of such a kind tend to exclude a person from society ; and the rule requires the charge to be made in the present tense. To accuse another of the having had a disgraceful disease is not actionable without proof of spe- cial damage. For example : The defendant says of the plaintiff, ' She has had the pox.' The defendant is not liable though the charge be false, unless the plaintiff prove some specitic damage*. 1 Halley v. Stautou, Croke Car. 268. The words were false. 2 Smith V. Stewart, 5 Barr, 372 (Penn.). It would be otherwise if the words were true. Baum v. Clause, 5 Hill, 199 (N. Y.). A person is no longer a felon after sufferini,' the punishment of felony ; so that the fact that he was once a felon would not sustain a plea of the truth of a charge of felony. Leyman v. Latimer, 3 Ex. Div. 352. 3 Watson r. McCarthy, 2 Kelly, 57, an American authority. See Bloodworth v. Gray, 7 Man & G. 334. 4 See Carslake v. Mapledoram, 2 T. E. 473 ; s. c. L. C. Torts, 84. 88 LAW OF TORTS. [PART I. § 6. Of an Imputation affecting the Plaintiff in his Office, Business, or Occupation. In order that defamation arising under this head alone should be actionable per se, it should have a natural ten- dency to injure the party complaining, in his occupation. It is not enough that it may possibly so injure him. If it has not a natural tendency to injure him in this respect, that is, if it would not be the usual effect of the charge to injure the plaintiff in his occupation, as by causing removal, the plaintiff cannot recover without proving a special dam- age. For example : The defendant publishes of the plaintiff, a clerk to a gas-light company, the words, ' You are a dis- grace to the town, unfit to hold your situation for your conduct with harlots. You are a disgrace to the situation you hold.' The plaintiff cannot recover without proof of actual damage, the language not having a natural ten- dency to cause the plaintiff's discharge from his employ- ment'. Defamation has a natural tendency to injure the plain- tiff in his office, business, or occupation, witliin the mean- ing of the rule, when it strikes at his qualification for the performance of the duties of his situation, or when it al- leges some misconduct or negligence in the course of transacting these duties^. For example : The defendant charges the plaintiff, a clergyman, holding the office of pastor of a church, with incontinence. This may be ground of an action^. Again : The defendant says of the plaintiff, a lawyer, the words having relation to the plaintiff's professional qualifications, ' He is a dunce.' This 1 Lumby v. Allday, 1 Tyrwh. 217 ; s. c. L. C. Torts, 87. 2 Id. 3 Gallwey v. Marshall, 9 Ex. 294. CHAP, v.] SLANDER AND LIBEL. 89 may perhaps be ti'eated as a breach of tlie defendant's legal duty to the plaintiff'. When the defamation complained of does not shew on its face that it was published of the plaintiff in relation to his occupation, this must be made to appear^ ; thougli even then, as has been stated, the defamation will not be actionable unless it had a natural tendency to injure the plaintiff in his occupation, in the sense already explained. In cases, however, in which the imputation is alleged to have been made of the plaintiff in his occupation, when the same does not have the natural tendency mentioned, it may be sliewn by the plaintiff that the defamation was published under circumstances which bring the case within the rule of liability. But without such evidence, the plaintiff must fail. For example : The defendant charges the plaintiff, as a physician, with incontinence. This does not imply disqualification, or necessarily professional mis- conduct ; and, without evidence connecting the imputa- tion with the plaintiff's professional conduct, he cannot recover^. If the imputation in itself come within the rule of lia- bility under this head, it matters not that it was published of a servant, even one acting in a menial capacity. For example : The defendant utters the following of the plain- tiff, a menial servant, before the latter's master, ' Thou art a cozening knave, and hast cozened thy master of a bushel of barley.' The defendant is liable to the plaintiff, the imputation being false*. It is probably actionable to impute disqualification of a 1 Peard v. Jones, Croke Gar. 382. It is doubtful whether a court would now treat such a statement as actionable. =* Ayre v. Craven, 2 Ad. & E. 2. 3 Id. ■* Seaman v. Bigg, Croke Car. 480. 90 LAW OF TORTS. [PART I. person holding a merely honorary or confidential office, not of emolument'. It certainly is so to impute to such a person misconduct in the office^. For example : The defendant says of the plaintiff, who holds a public office of mere honour, ' You are a rascal, a villain, and a liar.' This is a breach of the duty under consideration ^ In all cases included under the present section, it is necessary that the plaintifi' should have been in the exer- cise of the duties of the particular vocation at the time of the alleged publication of the defamation '\ For example : The defendant says of the plaintiff, who had been a lessee of tolls at the time referred to by the defendant, ' He was wanted at T ; he was a defaulter there.' The words are not actionable per se^. § 7. Of ax Imputation tending to Disinherit the Plaintiff. If the words tend to impeach a present title of the plaintiff, the action, though commonly called an action for slander of title, is not properly speaking an action of slander : as has already been stated, such a case is simply an action for deceit, to be governed by the rules of law prevailing upon that subject*^. Cases of actions for defamation tending to defeat an expected title are rare, and appear to have been confined to charges impeaching the legitimacy of birth of an heir 1 Onslow V. Home, 3 Wils. 186. 2 Id. ^ Aston V. Blagrave, Strange, 617. ■4 Bellamy v. Burch, 16 M. & W. 590; Gallwey v. Marshall, 9 Ex. 294. 5 Bellamy v. Burch, supra. Some of the old cases are contra, but they were overruled. 6 See ante, p. 47. CHAP, v.] SLANDER AND LIBEL. 91 apparent. Such an imputation has been deemed actionable, as being likely to cause the plaintiff's disherison. For example : The defendant publishes of the plaintiff, an heir apparent to estates, the words, ' Thou art a bastard.' The defendant is liable without proof of special damage'. § 8. Of ax Imputation conveyed by Writing, Printing, OR Representation ; that is, of Libel. The four preceding sections exhaust the possible heads of oral defamation, actionable per se ; that is, of slander. Libellous defamation may also be conveyed in any of the four ways above considered ; but it may also be conveyed in other ways. A libel is a writing, print, picture or effigy, calculated to bring one into hatred, ridicule, or disgrace. The definition shews that the law of libel is of wider extent than that of slander. Many words when written or printed become actionable per se which, if they had been orally published, would not have been actionable without proof of actual damage. And, besides these, there is the whole class of defamatory representations, such as picture and effigy, which in their nature are incapable of oral publi- cation. Whether the distinction is well founded or not, the manner of the publication, as libel, makes it actionable"^. For example : The defendant writes and publishes of the plaintiff the following : ' I sincerely pity the man that can so far forget what is due not only to himself, but to others, who, under the cloak of religious and spiritual reform, hypocritically, and with the grossest impurity, deals out his malice, uncharitableness, and falsehoods.' The plaintiff can maintain an action for libeP. Again : The defendant prints the following of the plaintiff: 'Our army swore 1 Huraijhi-ys v. Staiifeild, Croke Car. 469. 2 Thorley v. Kerry, 4 Taunt. 355 ; s. c. L. C. Torts, 90. 3 Thorley v. Kerry, supra. 92 LAW OF TORTS. [PART I. terribly in Flanders, said Uncle Toby ; and if Toby was here now, he might say the same of some modern swearers. The man at the sign of the Bible [the plaintiff] is no slouch at swearing to an old story.' The imputation is libellous, though not importing perjury'. Again: The defendant prints the following of the plaintiff: 'Mr. Cooper [the plaintiff] will have to bring his action to trial somewhere. He will not like to bring it in New York, for we are known here, nor in Otsego, for he is known there,' The publica- tion of this language is deemed libellous ^ At common law, no immunity is conferred upon the proprietors, publishers, or editors of books, newspapers, or other prints, for the publication of defamation. They are liable for the publication of libellous matter in their prints, though the publication may have been made with- out their knowledge or against their orders^. This is not true of newsvendors*. And it is held in America that if the alleged libel were of such a nature that a man of com- mon intelligence could not know that it was intended for a libel, and it was not in fact known that it was, neither the editor nor the proprietor of the printing establishment, or of the print, would be liable \ § 9. Of the Truth of the Charge. The truth of the charge, whether it was made orally or by printed or written language, is in English law a good defence to an action for the publication of alleged defama- tion, though malicious and not reasonably believed to be true, at least if oral. Evidence of such a fact shews, 1 Steele v. Southwick, 9 Jobus. 214 (N. Y.). - Cooper V. Greeley, 1 Denio, 347 (N. Y.). ^ A Libel Law Amendment Bill touching newspapers is pending now. ■» Emmeus v. Pottle, 16 Q. B. Div. 354. 5 Smith V. Ashley, 11 Met. 307 (Mass.). CHAP, v.] SLANDER AND LIBEL. 93 indeed, that the charge is not defamatory. A person lias no right to a false character ; and his real character suffers no damage, such at least as the law recognizes, from speaking the truth. This rule appears to go to the extent of justifying a party in publishing of another the fact that he has suffered the penalty of the law for the commission of crime, even though he may have been pardoned therefor and have since become a good and respectable citizen. For exam- ple : The defendant publishes. of the plaintiff the statement that the latter had several years ago stolen an axe. That is true, though, after conviction thereof, the plaintiff was pardoned, and has since become a trusted citizen and an office-holder. The accusation is deemed justifiable in law\ Belief in the truth of the accusation, however, is not a defence", though it is provable in mitigation of damages^. And this is equally true of the editors and publishers of books, newspapers, or periodicals, as of other persons*. The truth of effigy, picture, or sign, so far as such may relate to the physical person of the party intended, and not to his character, is (probably) no justification of a mali- cious publication. A man is not responsible for his physi- cal peculiarities, and may well invoke the protection of the courts against one who will parade them before the public. § 10. Of Malice and Privileged Communications. To constitute slander or libel, it used to be said that malice was necessary ; but malice in this connexion was, and still is sometimes, spoken of as of two kinds, malice in 1 Baum V. Clause, 5 HiU, 199 (N. Y.). See Kex v. Burdett, 4 B. & Aid. 314, 325. 2 Campbell v. Spottiswoode, 3 Best & S. 769. 3 Odgers, Slander, 302, 589. * Campbell v. Spottiswoode, supra. 94 LAW OF TOETS. [PART I. law and malice in fact. The first is presumptive; the second is actual'. Actual malice is not necessary to the plaintiff's case ; and if it is still important for any purpose to retain the old form of statement, it may be said that malice is presumed in all cases of legal slander or libel ; but the effect of the presumption may sometimes be avoided in law, and then the plaintiff can recover only upon proof of actual malice. The effect of the presumption may be thus stated : The publication of defamation is presumed to have been done of malice, and justifies a verdict for the person defamed without further proof. For example : The defend- ant goes to the plaintiff's relatives and falsely charges him with theft. This is suflicient to justify a verdict for the plaintiff: he need not offer evidence to establish malice. Further, the defendant would not be permitted to deny that the charge was made maliciously, whatever the fact^ If this were all, the result would be that, unless the defendant could prove the truth of the charge, he would be liable. But this would be to lay an embargo upon the freedom of speech hardly to be tolerated. TJiere are circumstances under which men must, humanly speaking, speak without danger their convictions, however erroneous ; the law could not but permit it, and does permit. In permitting, there is no denial of malice ; there is no malice, as has just been said, to deny. The plaintift^'s case has merely been avoided by matter of justification; the facts are admitted, but ground is shewn why the plaintift* should not avail himself of them. There ai^e, in a word, occasions in which certain per- 1 Actual malice appears to be treated as a subjective conception ; that is, as a motive. See Abrath v. North-Eastern Ey. Co. 11 App. Cas. 247, 251, Lord Bramwell; ante, chapter 2, § 4. But see Holmes, Common Lavs^, chapter 4. Malice in law is a pure fiction. 2 Hooper v. Truscott, 2 Bing. N, C. 457 ; s. c. 2 Scott, 672. CHAP, v.] SLANDER AND LIBEL. 95 sons' care excused for publishing what would otherwise be actionable defamation. The publication of the charge or representation in such cases is in legal language said to be privileged ; the charge or representation itself being termed a privileged communication. Privileged communications are of two kinds ; absolutely privileged and prima facie privileged communications. A communication is absolutely privileged when the fact that it was published with actual, provable malice, that is, malice in fact, is immaterial, not afiecting the excuse. In other words, a communication is absolutely privileged when evidence that it was published with actual malice is not admissible. A communication is prima facie privileged when evidence on the part of the plaintiff is admissible to shew that the communication was published with actual malice. In the former case, the defence is a perfect one and cannot be disturbed ; in the latter, it is perfect, pro- vided evidence of malice be not offered by the plaintiff. Under the head of absolutely privileged communications, there are several classes of cases. First of these in im- portance come statements made in the course of judicial proceedings. Whatever is said orally, or stated in writing, in the course of such proceedings by those concerned therein, is absolutely privileged ; this in the interest of freedom and independence in the administration of justice. It matters not, so that the language was used in the course of judicial proceedings, whether it was material or relevant ; it is deemed to be against public policy to permit any inquiry in regard to that^ It is enough if it relates to the cause 1 Merivale v. Carson, 20 Q. B. Div. 275, 280, Lord Esher. 2 Munster v. Lamb, 11 Q. B. Div. 588 (counsel) ; Scott v. StausfielcT, L. R. a Ex. 220 (judge); Seaman v. Netherclift, 2 C. P. Div. 53 (witness) ; Henderson v. Broomhead, 4 H. & N. 569 (statements in pleadings) ; Dunham v. Powers, 42 Vermont, 1 (jury men). 96 LAW OF TORTS. [PART-I. before the court. For example : Counsel for the defendant, in the course of arguing a criminal cause, makes base in- sinuations against the prosecutor in relation to the evidence given, which insinuations would be actionable if not privi- leged. No action can be maintained for making them ; no inquiry into their bearing upon the case will be allowed'. Again : A witness on the stand, after examination, volun- teers a statement in vindication of himself, which contains a charge of crime against a stranger to the trial. This is not actionable^. Again : The defendant, during the delibe- rations of a jury of which he is a member, held in the jury room, concerning their verdict in a suit brought by the present plaintiff, says he would not believe the plaintiff under oath, and accuses him of having obtained an insurance of pi'operty by fraud, and afterwards of committing perjury in a suit for the insurance money. That trial has no con- nexion with the case before the jury, but the defendant acts honestly, believing himself to be in the discharge of his duty. This is no breach of duty to the plaintiff ^ This protection extends to the allegations contained in the written pleadings of causes*. So, likewise, to those of affidavits made im the course of a triaP, even though the persons making them be not parties to the cause"; and to statements of a coroner holding an inquest'. In a word, it applies apparently to all statements made in the discharge of duty at court. The law upon this subject has been thus (in substance) 1 Munster v. Lamb, supra. - Seaman v. Netherclift, supra. 3 Dunham v. Powers, supra. ■1 Henderson v. Broomhead, 4 H. & N. 569, 577. 5 Garr v. Selden, 4 Comst. 91 (N. Y.). ° Henderson v. Broomhead, supra. 7 Thomas v. Churton, 2 Best & S. 475. CHAP, v.] SLANDER AND LIBEL. 97 generalized : No action either for slander or libel can be maintained against a judge, magistrate, or person sitting in a judicial capacity over any court, judicial, military', or (probably) naval, recognized by and constituted according to law ; nor against suitors, prosecutors, witnesses, counsel, or jurors, for anything said or done relative to the matter in hand, in the ordinary course of a judicial proceeding, investi- gation, or inquiry, civil or criminal, by or before any such tribunal, however false, malicious, or irrelevant, it may be*. A like rule of law to that by which defamatory state- ments made in the course of judicial proceedings are privi- leged governs all statements and publications made in the course of the proceedings of Parliament^. The occasion is deemed to afford an absolute justification for the use of language otherwise actionable, so long as it relates to the proceedings under consideration. No member of Parliament is liable in a court of justice for anything said by him in the House to which he belongs, or in which he has duties to perform, however offensive the same may be to the feelings or injurious to the reputation of another*. This privilege, however, is absolute only within the walls of the House, or of such other places as committees of Parliament are authorized to occupy ^ It is not personal, but local. A member who publishes slander or libel generally, outside of such locality, stands, it seems, on the same footing with a private individual. For example : A 1 Jekyll V. Moore, 2 Bos. & P. N. K. 341 ; Dawkins v. Kokeby, L. R. 8 Q. B. 255 ; s. c. 7 H. L. 744, 752 (witness); Dawkins v. Saxe Weimar, 1 Q. B. D. 499. 2 Starkie, Slander and Libel, 184 (4th ed. by Folkard) ; Munster v. Lamb, 11 Q. B. Div. 588, and cases cited. 3 3 & 4 Vict. c. 9 ; Odgers, Slander, 187. 4 See Ex parte Wason, L. R. 4 Q. B. 573 ; Coffin v. Coffin, 4 Mass. 1. 5 Goffin V. Donnelly, 6 Q. B. D. 307. B. T. 7 98 LAW OF TORTS. [PART I, member of Parliament prints and circulates generally a speech delivered by him in the House, containing language defamatory of the plaintiff. This is a breach of duty'. The same protection is extended to persons presenting petitions to Parliament and with the same restriction. The printing and exhibiting a false and defamatory petition to a committee of Parliament, and the delivery of copies there- of to each member of the committee, is justifiable, unless perhaps the petition is a mere sham, fraudulently put forth for the purpose of defaming an individual. But a publica- tion to any others than the members of the committee, or at any rate to others than members of Parliament, removes the protection, and renders the author liable^. The occasions above presented are the only ones in which the publication of defamation is absolutely justified. The occasions which afford a prima facie protection to defamatory publications must now be considered. The defendant here shews privilege as before; but now, it should be noticed, the plaintiff may in turn shew (actual) malice. The class of cases of defamatory communications which fall under this head is both extensive and often complicated. It will be useful to divide it into two branches; to wit, communications pertaining to matters before the public, and communications pertaining to matters kept private. Proceedings befoi'e church organizations for the disci- pline of members thereof are, in America at least, quasi- judicial, and afford protection, prima facie in kind, for the 1 Rex V. Abingdon, 1 Esp. 226 ; Rex v. Creevey, 1 Maule & S. 273; Stockdale v. Hansard, 9 Ad. & E. 1. As to i:)rivate circulation of speeches among constituents, see Wason v. Walter, L. R. 4 Q. B. 73, 95. - Lake i\ King, 1 Saund. 131 b, where this is conceded ; Hare v. Miller, 3 Leon. 138, 163. See Proctor c. Webster, 16 Q. B. D. 112, as to communications to the Privy Council. CHAP. V.J SLANDER AND LIBEL. 99 utterance of defamatory language, if it have any pertinency to the matter under consideration. For example : The de- fendant, while on trial before a church committee for alleged falsehood and dishonesty in business, says of the plaintiff, ' I discharged him for being dishonest, — for stealiniT. That is the cause of this trouble.' The defendant is not liable in the absence of evidence that he was actuated by express malice'. Accounts of trials before the judicial tribunals, if suffi- ciently full to give a correct and adequate impression of the proceedings, and if not attended with defamatory comments, are prima facie privileged". If, however, the same should be malicious, partial, or followed by comments containing defamatory matter, the privilege would fail, and the pub- lisher, editor, and author would be liable for any defamation thereby spread. For example : The defendant prints a short summary of the facts of a certain case in which the plaintiff has acted as attorney. The account of the trial states that the then defendant's counsel was extremely severe and amusing at the expense of the present plaintiff. It then sets out parts of the speech of the defendant's counsel which contain some severe reflections on the conduct of the plaintiff as attorney in that action. The defendant is liable ^ An abridged report of a trial in one of the superior courts may, however, be privileged if it be fair and accurate in substance, so as to convey a just impression of what took place, and be free from objectionable comments*. And the 1 York V. Pease, 2 Gray, 282 ; Farnsworth v. Storrs, 5 Cush. 412 (Mass. cases). - See Stevens v. Saropson, 5 Ex. Div. 53, as to reports furnished by- one not connected with the newspaper. ■^ Flint V. Pike, 4 B. & C. 473. ^ Turner v. Sullivan, 6 Law T. n. s. 130 ; Wason v. Walter, L. R. 4 Q. B. 73, 87. 7—2 100 LAW OF TORTS. [PART I. same is true of like reports of proceedings in Parliament'. The report of a judgment alone may be printed". The objection to defamatory comments applies equally well when they are put into the form of a heading to the report. For example : The defendant prints an account of a trial in which the plaintiff was involved, heading the same ' Shameful conduct of an attorney,' the attorney referred to being the present plaintiff. The publication is not privi- leged^. The editor or writer may, however, use a heading pro- perly indicative of the nature of the trial, if it do not amount to comment. That is, the subject of the trial may be stated. For example : The defendant prints a report of a trial under the heading 'Wilful and corrupt perjury.' But this is only a statement of the charge made against the plaintiff at the trial. There is no breach of duty'*. The privilege appears to extend to the publication of ex parte judicial proceedings ^ and it protects the publica- tion of preliminary and final proceedings alike ; and this thougli the tribunal declines to proceed, for want of juris- diction''. But no privilege is conferred upon the proprietors, editors, or publishers of the public prints for the publication of defamatory matter uttered in the course of public meetings though held under authority of law for public purposes. For example : The defendant prints an account of a public meeting of commissioners of a town, the body ^ Wason V. Walter, supra. Secus of matter unfit for publication. Steele v. Brannan, L. E. 7 C. P. 261. 2 Macdougall r. Knight, 17 Q. B. Div. 636. 3 Lewis V. Clement, 3 Barn. & Aid. 702. •» Lewis V. Levy, El. B. & E. 587. « Usill V. Hales, 3 C. P. D. 319. Contra in America. Cincinnati Gazette Co. r. Timberlake, 10 Ohio St. 548. 6 Usill V. Hales, supra ; Lewis v. Levy, El. B. & E. 537. CHAP, v.] SLANDER AND LIBEL. 101 acting under powers granted by statute ; and the report is a fair and truthful statement of what occurred at the meet- ing. It, however, contains defamatory language uttered concerning the plaintiff at the meeting. The defendant is liable'. It does not, indeed, make a case of privilege that a defa- matory statement relates to a matter of great interest to the public, even though the public be at a point of unusual anxiety on the subject. For example : The defendant charges tlie plaintiff in a newspaper with treachery and bad faith in regard to money received by him to obtain the manu- mission of a fugitive slave in whom there was great inte- rest in the community. The publication is not privileged'. The right to publish the proceedings of the courts of justice is based upon a supposed general utility to the public. It is more obviously to the advantage of the public that true accounts of the proceedings of Parliament should be placed before the people. Upon this principle, therefore, the publication of such proceedings is privileged, though they contain defamatory matter ; though the privilege, as in the other cases mentioned, will not cover malicious publica- tions. Without evidence of malice, the protection is com- plete. For example : The defendant publishes a true report of a debate in Parliament, upon a petition presented by the plaintiff for the impeachment of a judge. Defamatory statements against the plaintiff are made in the course of the debate, and these are published with the report. The defendant is not liable in the absence of malice ^ 1 Davison ;;. Duncan, 7 El. & B. 229. See 44 & 45 Vict. c. 60, § 2. A Libel Law Amendment Bill touching newspapers is now (August, 1888) pending, and likely to pass. - Sheckell v. Jackson, 10 Gush. 25 (Mass.). * Wason V. Walter, L. E. 4 Q. B. 73. The protection in this case was extended also to comments made in an honest and fair spirit. 102 LAW OF TORTS. [PART I. Communications made to the proper public authorities, upon occasions of seeking redress for wrongs suffered or threatened, in which the public are concerned, or in which the party making or receiving the communication is alone concerned, are pri\-ileged, prima facie, if believed to be true by the party seeking redress, unless the form of the com- munication itself shew malice. For example: The defen- dant honestly ' charges the plaintiff with being a thief, the charge being made before a constable acting as such, after the defendant had sent for him to take the plaintiff into custody. The defendant is not liable in the absence of evidence of actual malice". Upon the same principle, honest statements at public meetings, as by a taxpayer and voter at a town meeting, held to consider an application from the tax assessors of the town for the use of money for a particular purpose, may (probably) be privileged so far as they bear upon the matter before the meeting, though they be defamatory. For example : The defendant, at a town meeting held on appli- cation of the tax assessors to consider the reimbursing the assessors for expenses incurred in defending a suit for acts done in their official capacity, honestly but falsely charges the assessors with perjury in the suit. Being a taxpayer and voter, he is not liable to any of the persons defamed, unless shewn to have been actuated by malice I A similar protection is, it seems, to be extended to persons acting under the management of bodies instituted by law, and having a special function of care over the inte- rests of the public. While honestly acting within the limits of their function, they are prima facie exempt from liability for defamatory publications made. For example: The de- 1 Honestly = believing the imijutation true. 2 Robinson v. May, 2 Smith, 3. 3 Smith V. Higgins, 16 Gray, 251 (Mass.). CHAP, v.] SLANDER AND LIBEL. 103 fendants, trustees of a College of Pharmacy, — an institu- tion incorporated for the purpose, among other things, of cultivating and improving pharmacy, and of making known the best methods of preparing medicines, with a view to the public welfare,— make a report to the proper officer concern- ing the importation of impure and adulterated drugs, falsely but honestly charging the plaintiff with having made such importations ; the report being made after investigation caused by complaints made to the defendants of the impor- tation of such drugs. The defendants are not liable unless they acted with express malice towards the plaintiff'. The use of the public prints is sometimes justifiable to protect a person against the frauds or depredations of a private citizen; and when this is the only effectual mode of protection, persons are (probably) prima facie protected in adopting it even against innocent men. For example : The defendant, a baker, employing servants in delivering bread in various towns, inserts in a newspaper published in one of the towns a card, stating that the plaintiff ' having left my employ, and taken upon himself the privilege of collecting my bills, this is to give notice that he has no- thing further to do with my business.' The communication is honest. It is piivileged in the absence of evidence of actual malice". Statements made to the public in vindication of charac- ter publicly attacked are pi"ivileged, prima facie, if they are honest, at least if made through proper channels ^. For example : The defendant publishes a newspaper article containing reflections upon the plaintiff's character, in reply to an article by the plaintiff assailing the defendant's 1 Van Wyck r. Aspiuwall, 17 N. Y. 190. 2 Hatch r. Lane, 105 Mass. 394. * Laughtou V. Bishop of Sodor, L. E. 4 P. C. 495. 104 LAW OF TOKTS. [PART I. character. The defendant acts honestly, in defence of him- self. The communication is prima facie privileged'. Indeed, it may not affect the case that the names of other men are drawn into the controversy and tarnished. The party attacked may in reply falsely criminate others if the charges against them are honestly made, are not malicious, and are reasonably deemed necessary for self- vindication. And such reply may be made by the party's agent as well as by himself. For example : The defendant, an attorney, writes and publishes a letter in vindication of the character of one of his clients, in reply to certain charges of conspiracy preferred and published against the latter. The defendant's letter contains defamatory charges against a third person, among them one of perjury. The defendant is not liable if he wrote the letter in honest vindication of his client's character, and without actual malice, using terms reasonably warranted under the circum- stances in which he wrote". It remains to consider the case of prima facie privileged communications concerning matters kept entirely private. And here at the outset a general distinction must be observed, which separates the class of cases now to be noticed from those above considered, or at least from all except the cases relating to communications in vindication of character. With the exception of this last class of cases, all the foregoing have been cases, it will be noticed, in which the privileged communication in question was made voluntarily, that is, without request from another having an interest therein. Indeed, communications in defence of character are made, or may be made, without actual request; but the first attack, especially when publicly made, may properly be considered a challenge to reply. It 1 O'Donoghue v. Hussey, Ir. R. 5 C. L. 124, Ex. Ch. •^ Regina v. Veley, 4 Fost. & F. 1117. CHAP, v.] SLANDER AND LIBEL. 105 is therefore equivalent to a request, and the reply cannot be considered as voluntarily made. In regard to the other cases above presented, the communication is necessarily voluntary in most cases ; and the fact, therefore, that the communication has been voluntarily made can, it seems, have nothing to do with the question of liability. When, however, the communication relates to a matter treated as private, the case may assume a different aspect. Here it may or may not be necessary to volunteer a reflec- tion upon another's character; and when it is not, it will be dangerous to do it, for it may indicate malice and thus overturn the protection of privilege. Dangerous it will be, not necessarily fatal ; fatal as matter of law it cannot in any case be. Two classes of cases there, indeed, appear to be, in one of which to volunteer the communication will endanger the privilege, in the other it will not. One of these arises from the circumstance that the situ- ation of the party publishing the defamation towards the party of whom it is published is such as to render it highly improbable that the former was actuated by malicious mo- tives towards the latter, when the communication was made to a party having an interest in it ; the other from the cir- cumstance that the parties between whom the communica- tion passes sustain a relation of close confidence to each other, either of very near relationship (by blood or marriage) or of pecuniary connexion. Under the first of the two classes is to be mentioned the case of communications made by a master (or late master) concerning the conduct of his servant, made to a neighbour or friend about to take the servant into his em- ploy. The master violates no duty of law to his servant in such a case by making honest statements to his neigh- bour derogatory of the servant's character ; but if his 106 LAW OF TORTS. [PART I. action was volunteered, the privilege will be endangered. For example : The defendant, having discharged his servant the plaintiff for supposed misconduct, and hearing that he was about to be engaged by a neighbour, writes a letter to his neighbour, informing hiui that he has discharged the plaintiff for dishonesty, and that he cannot recommend him ; the charge of dishonesty being false, but believed by the defendant to be true. The defendant has a prima facie right to make the statement; but the fact that lie volun- teered it may be considered on the question of malice'. It is, then, clear that in cases arising under the first class (such as cases between master and servant), the fact that the communication has been voluntarily made does not necessarily prevent the charge from being prima facie privileged. Its effect at most is only to require the defend- ant to give strong evidence that he acted honestly in what was done^ But of course the plaintiff is at liberty to over- turn this evidence if he can, by shewing that the defendant was in fact actuated by malice in making the charge. Under the second of the two classes, where there exists a very near relationship, or a pecuniary connexion of con- fidence, between the parties, may be mentioned the case of a parent admonishing his daughter against the atten- tions of a particular person, who is falsely charged with the commission of a crime ; or of a partner advising his copartner to have no partnership dealing with another on the false ground, e.g. that he is a swindler or thief. It is certainly safe to volunteer the statement of a false accusa- tion in such cases ; that is, it can have no bearing upon a question of malice that the statement was volunteered. A confidential relation by pecuniary connexion is, how- ever, for the purposes of this protection, much wider than 1 See Pattison v. Jones, 8 B. & C. 578. 584, Bayle.y, J. 2 Id. Littledale, J. CHAP, v.] SLANDER AND LIBEL. 107 miglit be supposed from the case of partners last men- tioned. A confidential relation, within the scope of the protection to voluntary communications, (probably) arises wherever a continuous or temporary trust is reposed in the skill ov integrity of another, or the property or pecuniary interest, in whole or in part, or the bodily custody, of one person, is placed in charge of another'. Besides the cases above stated, this definition will cover communications made by an attorney to his client concerning third persons with whom the client is, or is about to be, engaged in business transactions"; communications made to an auc- tioneer of property concerning the sale by persons interested in the property*; communications of landlords to tlieir tenants imputing immoral conduct to some of the inmates of the premises^; and many other cases of a like nature. Voluntary communications in all of these cases are justifiable on the ground that the party receiving them has a right to expect them : and it may be laid down as a broad rule, that, wherever a right to expect the communica- tion may reasonably be supposed to exist, the communication will be protected, whether it was voluntary or not. Indeed, the case in hand is still stronger; the matter is generally one of protection to the person making the communication as well as of protection to the one to whom it is made. On the other hand, it is a general rule of law that com- munications honestly made, in answer to needful inquiries, are privileged. But a communication is not necessarily privileged because of being made upon request. If it should be unnecessarily defamatory under the circumstances, the privilege would be lost. Such fact would, indeed, shew 1 Bigelow, Fraud, 262. 2 See Davis r. Reeves, 5 Ir. C. L. 7'.». 3 Blackham v. Pugh, 2 C. B. 611. * Knight V. Gibbs, 3 Nev. & M. 467. 108 LAW OF TORTS. [PART I. that the writer or speaker was actuated by malice, and would thus destroy the protection which may have been available to the party, and restore to the plaintiff his right of redress'. Again, a communication made upon request is not pro- tected unless the request come from a proper person, or at least from one whom the defendant has reason to suppose a proper person. If the defendant know, or have good reason to know, that the party making the inquiry has no interest in the matter in question other than that of curi- osity, the defendant manifestly is not justified in making the communication. Even the near relatives of a person interested in the subject of the communication cannot by request afford protection to every one to publish defama- tion of another. For example : The defendant, formerly but not at present pastor of a lady, writes a letter to the lady, on request of her parents, warning her against receiv- ing attention from a certain person, the letter containing false and defamatory accusations against him. The com- munication is not privileged". It should be noticed that it devolves upon the defendant to shew, not only the existence (at the time or before) of the relation between the parties, but also that he acted in good faith, belie vins^ that his communication was true'^. And this statement applies throughout the law of prima facie 1 Fryer v. Kinnersley, 15 C. B. n. s. 422. - Joannes v. Bennet, 5 Allen, 169 (Mass.). Perhaps the communi- cation would have been privileged had it come from the lady's present pastor ; and it clearly would have been protected had it been written on request of the lady herself. 3 Pattison v. Jones, 8 B. & C. 578; Dawkins v. Paulet, L. R. 5 Q. B. 94, 102; Clark ■;;. Molyneux, 3 Q. B. Div. 237; Odgers, Slander, 199. It is not necessary for the defendant to shew reasonable grounds of belief. Clark v. Molyneux, supra, at pp. 244, 248, 249. Comp. the rule in deceit, ante, p. 34, note 1. CHAP, v.] SLANDER AND LIBEL. 109 privilege. It has already been observed that the defendant's belief in the truth of the charge is no defence in cases not of privileged communications'. This subject of privileged communications may be sum- marized by the following proposition, subject, however, to such explanation as the foregoing remarks suggest : A connnunication believed to be true, and made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty to perform, is privileged, if made to a person having a cor- responding interest or duty, although it contains defama- tory matter, which, without such privilege, would be actionable'. It follows from this, that no privilege is afforded the mere repetition of defamation ; and this is true by the weight of authority, though the party repeating it give the name of the person from whom he received it. The repetition of the language is generally deemed actionable to the same extent, and doubtless with the same qualifica- tions, as is the original publication ^ For example : The defendant says to a third person concerning the plaintiff", 'You have heard of the I'umour of his failure,' — merely repeating a current rumour that had come to his ears that the plaintiflf had failed. The defendant is liable, if there was no such relation between him and the party to whom he made the communication as would cause the latter to expect a communication on such matters*. Criticism cannot be defamation, unless it strikes at per- sonal character. It is protected therefore, not because it is privileged, for it is not, but because it is not defa- 1 Ante, p. 93. 2 Harrison v. Bush, 5 El. & B. 344. 3 De Crespigny v. Wellesley, 5 Bing. 392 ; s. c. L. C. Torts, 151. 4 Watkin v. Hall, L. E. 3 Q. B. 396. 110 LAW OF TORTS. [PART I. mation'. However severe it may be, however unjust in the opinion of men capable of judging, so long as the critic confines himself to 'fair' criticism of another's works, the act cannot be treated as a breach of duty. But if the critic turn aside from the proper purpose of criticism, and hold up one's person or character to ridicule, he becomes liable". The criticism of works of art, whether painting, sculp- ture, monument, or architecture, falls within the rule. For example : The defendant says of a picture of the plaintiff, placed on exhibition, ' It is a mere daub.' The defendant, if fair in his criticism^, cannot be held liable to an action for defamation, however unjust the criticism*. The conduct too of public men amenable to the public only, and of candidates for public office, is a matter proper for public discussion. It may be made the subject of hostile criticism and animadversion, so long as the writer keeps within the bounds of an honest intention to discharge a duty to the public, and does not make the occasion a mere cover for promulgating malicious and false allegations. The question in such cases therefore is, whether the author of the statements complained of has transgressed the bounds within which comments upon the character or conduct of a public man should be confined ;• — whether, instead of fair comment, the occasion was made an opportunity for grati- 1 Merivale v. Carson, 20 Q. B. Div. 275 ; Campbells. Spottiswoode, 3 Best & S. 769, 780. What all men may do is no privilege, but only what xome men may. Id. - Id.; Carr v. Hood, 1 Campb. 355, note; Odgers, Slander, 39. 3 See Kenwood v. Harrison, L. E. 7 C. P. 606, 626, Willes, J. But see Pollock, Torts, 221 ; Merivale v. Carson, 20 Q. B. Div. 275, 283, as to ' fair criticism. ' ■» Thompson v. Shackell, Moody & M. 187. See Merivale v. Carson, supra ; Gott v. Pulsifer, 122 Mass. 235. CHAP, v.] SLANDER AND LIBEL. Ill fying personal vindictiveness and hostility ', as by making- false charges of disgraceful acts". In a word, fair criticism or comment upon the real acts of a public man is one thing; it is 'quite another to assert that he has been guilty of particular acts of misconduct^'. If, however, an officer, or an office sought, be not subject to direct control by the public, — if the same be sub- ordinate to the authority of someone having a power of removal over the incumbent, — then (probably) there exists no light to animadvert upon the conduct of such subordi- nate officer or candidate through public channels ; for in such a case the question appears to be one of capacity or titness for a particular vocation. Though engaged in busi- ness of the public, the officer is not a ' public man ' but a servant. The proper course to pursue in case of supposed incapacity or unfitness of the party for the position would be to state the case to the superior officer alone, and call upon him to act accordingly*. It must be understood that the law of slander and libel applies only to defamation in pais ; that is, to defamatory charges not prosecuted in a court of justice. If the defa- mation consist of an accusation prosecuted in court, the accused must seek his redress by an action for a malicious prosecution, in regard to which the right to recover depends, as has been seen, upon quite different rules of law ■\ 1 Campbell v. Spottiswoode, 3 Best & S. 769, 776; Merivale v. Carson, 20 Q. B. Div. 275, 283. 2 Davis V. Shepstone, 11 App. Cas. 187. ^ Id. at p. 190. •> Comp. Odgers, 223, 224. ^ See Chapter II. PAET II. BREACH OF ABSOLUTE DUTY. B. T. CHAPTER I. ASSAULT AND BATTERY. § 1. Introductory. Statement of the duty. A owes to B the duty to forbear (1) to offer with force to do hurt to his person, within reach; or (2) to hit or touch him in anger, rudeness, or negligence, or in the commission of any unlawful act. There is so much in common in the law of the two wrongs of assault and battery, and the two are so often coincident, that the terms are not always used with discrimination. ' Assault ' is constantly used in the books to include 'battery'.' But they are, or may be, separate and distinct wrongs, and it is therefore necessary to draw the distinction between them clearly. § 2. Op Assaults. An assault is an attempt, real or apparent, to do hurt to another's person, within reaching distance. It is an attempt to do harm, stopping sliort of actual execution". If the attempt be carried out by physical contact, the act 1 See the proposed definition in the draft Criminal Code of 1879 ; Pollock, Torts, 183. - "Words are no assault ; but they may be a menace and so actionable, with proof of actual damage. L. C. Torts, 225—227. 8—2 116 LAW OF TORTS. [PART II. becomes a battery ; but the act is equally unlawful and actionable when it stops with a mere attempt to inflict hurt. It is not alone a blow that, because of unpermitted contact with the person, is unlawful. The sensibility of danger may be rudely excited ; and feelings of that kind are with- in the protection of the law quite as much as the feeling produced by blows. It is actionable for A to shake his list in the face of B'. In ordinary cases of assault, the question whether the defendant actually intended to do harm cannot, as the definition implies, enter into the case. If reasonable fear of present bodily harm has been caused by the threatening attitude, the effect of an assault has been produced ; and not even a disclaimer by the wrong-doer coincident with his act could, it seems, prevent liability. One may well complain of a man who points a pistol at him, though the man truly declare that lie does not intend to shoot"; for the effect of an assault, the putting one in fear, is produced. But it may appear in a particular case that an expressed purpose, or want of purpose, is a determining fact in solving a doubt ; that is, it may be such a part of the act in question as to turn the scales in deciding whether an assault has been committed. A denial of present purpose to do harm, or any language indicating a want of such purpose, may serve, under the circumstances, to prevent the excitement of any reasonable fear of present bodily barm. If then it appear that the supposed wrong was committed in such a manner that the plaintiff' must have 1 Bacon's Abr. 'Assault and Battery,' A. - See Reg. v. St George, 9 Car. & P. 483, 493, Parke, B ; Bacon's Abr. ' Assault and Battery,' A ; 1 Hawkins, P. C. 110; Pollock, Torts, 184, doubting Blake r. Barnard, 9 Car. & P. 626, 628, and Reg. r. James, 1 C. & K. 530. Mr Pollock says that Reg. v. St George, ut supra, * would almost certainly be followed at this day.' CHAP. I.] ASSAULT AND BATTERY. 117 known that no present violence was intended, the act is not an assault. For example : The defendant, on drill as a soldier, putting his hand upon his sword, says to the plaintiff', ' If it was not drill-time, I would not take such language from you.' This is not an assault, since the language used, under the circumstances, shews that there was no present attempt, real or apparent, to commit bodily violence'. If, however, the plaintiff" have reason to believe that harm was intended, there is an assault, whether the defend- ant did or did not intend harm. So at least it is held in America for the purpose of civil redress. For example : The defendant in an angry manner points an unloaded gun at the plaintiff", and snaps it, with the apparent purpose of shooting. The gun is known by the defendant to be unloaded ; but the plaintiff" does not know the fact, and has no reason to suppose that it is not loaded. The defend- ant is liable for an assault, though he could not have intended any harm to the plaintiff"^. The parties must generally have been within reach of each other, not necessarily within arm's reach, for an assault may be committed (as already appears) by means of a weapon or missile ; and in such a case it is only neces- sary that the plaintiff" should have been within reach of the projectile. And even when the alleged assault is committed with the fist, it is not necessary that the plain- tiff" should have been within ai^m's reach of the defendant, provided the defendant was advancing to strike the plain- tiff", and was restrained by others from carrying out his purpose when almost within reach of the plaintiff". For example : The defendant advances towards the plaintiff" in an angry manner, witli clenched fist, saying that he will 1 See Tuberville v. Savage, 1 Mod. 3. 2 Beach v. Hancock, 27 N. H. 223. 118 LAW OF TORTS. [PART II. pull the plaintiff out of his chair, but is arrested by a person sitting next to the plaintiff between him and the defendant. The act is an assault, though the defendant was not near enough to strike the plaintiff'. In like manner, if the defendant should cause the plain- tiff to flee in order to escape violence, he may be guilty of an assault, though he was at no time within reach of the plaintiff: it is enough that flight or concealment becomes necessary to escape the threatened evil. For example : The defendant on horseback rides at a quick pace after the plaintiff, then walking along a foot-path. The plaintiff runs away, and escapes into his garden ; at the gate of which the defendant stops on his horse, shaking his whip at the plaintiff, now beyond danger. This is an assault^. It will be observed, from the statement of the duty which governs this branch of the law, that a mere assault is a civil ofience ; and hence the person assaulted has a right of action, though he may not have suffered any loss or detri- ment from the offence. In such a case, however, unless the assault were outrageous, he could (probably) recover only nominal damaafes^. "O^ § 3. Op Batteries. A battery consists in the unpermitted application of force by one man to the person of another. A battery, therefore, is mainly distinguishable from an assault in the fact that physical contact is necessary to accomplish it. But, as the definition indicates, this contact need not be effected by a blow : any forcible contact may be sufficient. For example : The defendant, an overseer of the poor, cuts 1 Stephens v. Myers, 4 Car. & P. 349 ; s. c. L. C. Torts, 217. 2 Mortin v. Shoppee, 3 Car. & P. 373. 3 The damages recovered in Stephens v. Myers, supra, were one shiUing. CHAP. I.] ASSAULT AND BATTERY. 119 off the hair of the plaintiff, an inmate in the pooi'-house, contrary to the plaintiff's will, and without authority of law. This is a battery, and the defendant is liable in damages '. Again : The defendant, in passing through a crowded hall> pushes his way in a rude manner against the plaintiff. This is also a battery". It is not necessary that the defendant should come in contact with the plaintiff's body. It is sufficient if the blow or touch come upon the plaintiff's clothing. For example : The defendant, in anger or rudeness, knocks off the plain- tiff's hat. This is enough to constitute a battery ^ Indeed, it is not necessary that the plaintiff's body or clothing be touched. To knock a thing out of the plain- tiff's hands, such as a staff or cane, would clearly be a battery ; and the same would be true of the striking a thing upon which he is resting for support, if the effect be to cause a fall or concussion to the plaintiff. For example: The defendant strikes a horse upon which the plaintiff is riding, causing the animal to plunge and throw the plaintiff. This is a battery*. Again : The defendant drives a vehicle against the plaintiff's carriage, throwing the plaintiff from his seat. This also is a battery ^ Again : The defendant runs against and overturns a chair in which the plaintiff is sitting. This too is a battery ". It appears from the foregoing examples that it is not necessary to constitute a battery that the touch or blow or 1 Forde v. Skinner, 4 Car. & P. 239, - Cole V. Turner, 6 Mod. 149 ; s. c. L. C. Torts, 218. ■■* Mr Addison gives this as an example of a battery, without •citing aiTthority ; but there can be no doubt of its correctness. Addison, Torts, 571 (4th ed.). ^ See Dodwell v. Burford, 1 Mod. 24. s Hopper r. Reeve, 7 Taunt. 698. 6 Id. It was held immaterial in this case whether the chair or carriage belonged to the plaintiff or not. 120 LAW OF TORTS. [PART II. other contact should come directly from the defendant's person. Indeed, a battery may be committed at any dis- tance between the parties if only some violence be done to the plaintiff's person. The hitting one with a stone, or an arrow, or other missile, is no less a battery than the striking one with the fist. It is not necessary even that the object cast should do physical harm ; the battery consists in the unpermitted contact, and not in the damage. For example : The defendant spits or throws water upon the plaintiff. This is a battery, though no harm be done'. A battery may be committed without the least intention to do the plaintiff harm ; it may be the result simply of negligence. For example : The defendant, a soldier, han- dles his arms so carelessly in drilling as to hit the plaintiff with them. This is a battery, though the act was not in- tended'. The above-mentioned case of the defendant run- ning into the plaintiff's carriage is another example^. Indeed, a person may be guilty of a battery where his act is directly caused by another person, provided the de- 1 See Eegina v. Cotesworth, 6 Mod. 172 ; Pui-sell v. Horn, 8 Ad. & E. 602. A word of explanation is necessary as to the latter case. The plaintiff had sued for a battery by throwing of water on him, and had failed to prove it, though he proved certain consequential in- juries, and had a verdict for below forty shillings. The damages not reaching forty shillings, and a battery not having been proved, the plaintiff was not entitled (under the statute) to the costs given him. He now attempted to shew that he had not sued for a battery at all, or, if he had, that a battery had been admitted by the defendant's plea ; which, if true, would save him his costs as given by the jury. But the court decided against him, and cut down the costs allowed ; thus holding that to threw water upon a person is a battery. '^ Weaver v. Ward, Hob. 134. Quasre, whether many of the actions for bodily injuries, sued for as torts by negligence, could not be redressed by suing for assault and battery ? It would obviously be to the plaintiff's advantage so to sue. See Holmes v. Mather, L. R. 10 Ex. 261. 3 See also Hall v. Fearnley, 3 Q. B. 919. CHAP. I.] ASSAULT AND BATTERY. 121 fendant was engaged at the time in an unlawful proceeding. For example : The defendant, when about to discharge a gun unlawfully at a third person, is jostled just as the gun is fired, and the direction of the shot is changed so as to cause the plaintift' to be hit. This is a battery '. But while a battery may be committed without intention^ it is not to be supposed that every unintentional physical violence done to another will constitute a battery. There is no battery, according to the just tendency of modern authority, unless the action of the defendant was voluntary, or the result of negligence, or of the doing of something for- bidden by law^ No man when doing that which is lawful should be held liable for consequences which he could not prevent by prudence or care, though another suffer bodily injury thereby. For example: The defendant's horse, upon which the defendant is lawfully riding in the highway, takes a sudden fright, runs away with his rider, and against all the efforts of the defendant to restrain him, runs against and hurts the plaintiff. This is not a battery or other breach of duty^. And even though the action of the defendant was volun- tary (that is, intentional), it will not necessarily constitute a battery. For example : The defendant, walking near the plaintiff, suddenly turns round, and in so doing hits the plaintiff with his elbow. This is not a battery^ ^ See James v. Campbell, 5 Car. & P. 372, where the defendant, in fighting with another, hit the plaintiff with his fist. - Coward v: Baddeley, 4 H. & N. 478, Martin, B. infra ; Hohnes v. Mather, L. R. 10 Ex. 261 ; Wakeman v. Eobinson, 1 Bing. 213 ; Hall v. Fearnley, 3 Q. B. 919 ; Brown v. Kendall, G Cush. 292 (Mass.) Vincent V. Stinehour, 7 Vermont, 62 ; Nitroglycerine Case, 15 Wall. 524, Sup. Court U. S. •' See Vincent v. Stinehour, 7 Vt. 62, and example cited by Wil- liams, C. J. ; and see Holmes v. Mather, supra, a still stronger case. * A case put by Martin, B. on the argument in Coward v. Bad- 122 LAW OF TORTS. [PART II. Nor is there necessarily a battery though (not merely the general action of the defendant, as in the last example, but) the specific act of contact be intentional, for it may have been done in sport; though sport could doubtless be carried to such an extreme as to constitute the act a battery. It is not even a decisive test, always, to inquire whether the act was done against the plaintiff's will. The plaintifi" may be engaged in criminal conduct at the time ; or he may be lying unconsciously in an exposed condition ; or with the best of intentions he may be doing that which the defendant rightly thinks dangerous to life or property. In the first of these cases, an arrest of the plaintifi" by laying on of hands will be justifiable; in the second case, an arousing or removal of him will be proper; and, in the third, the laying on of hands to attract his attention is lawful'. In none of these cases is there a battery, though the contact be against the will of the plaintiff". If, however, the act were done in a hostile manner the case would be diff'erent" ; and the question whether the act was hostile (probably) furnishes the criterion, when the same was voluntary, and not the result of negligence or other unlawful conduct. In the two latter cases, it matters not, as has already been seen, whether the act was hostile or not. A battery may also be committed in an endeavour to take one's own property from the wrongful possession of another. If the party in possession should refuse to sur- render the property, the owner should resort to the courts to obtain it, or await an opportunity to get possession of it in a peaceful mannei\ He has no right to take it out of the hands of the possessor by force. For example : The defend- ant, finding the plaintifi' in wrongful possession of the deley, 4 H. & N. 478. See Brown v. Kendall, 6 Gush. 292 ; Holmes v. Mather, supra. See further, Holmes, Common Law, 105, 106. 1 As to the last case, see Coward v. Baddeley, supra. - Id. CHAP. I.] ASSAULT AND BATTERY. 123 former's horse, beats the plaintiff, after a demand and refusal to give up the animal, and wrests the horse from the plain- tiff's possession. This is a battery'. §4. Of Justifiable Assault: Self-defence: Son Assault Demesne. There are a few cases in whicli a man is entitled to take the law into his own hands and inflict corporal injury upon another. Among tliese are to be noticed the right of a parent to give moderate correction to his minor child; the (probable) right of a guardian to do the like to a minor ward ; the right of a schoolmaster (when not prohibited by law or school ordinance) to do the like to his scholars ; the (possible) right of a master to do the like to young servants; and the right of officers of reform, discipline, or correction, to do the like towards the refractory who have been com- mitted to their charge. Aside from cases of one of these classes, the right to do that which would otherwise amount to an assault or a bat- tery is confined to two or three cases, all of which are justi- fied on grounds either of self-defence or generally that the plaintiff really caused the act of which he complains". In the language of the old law the wrong complained of by the plaintiff was 'son assault demesne'. A person cannot be liable for an act which he himself has not committed or caused, either personally or by another authorized to act for him. Hence if the plaintift' himself caused the act com- plained of, the defendant cannot be liable to him for it. 1 Andre v. Johnson, 6 Blackf. 375, an American authority. See Suggs V. Anderson, 12 Ga. 461. But the defendant could keep his horse. Scribner v. Beach, 4 Denio, 448, 451 (N. Y.). •- The statute 24 & 25 Vict. c. 100, §§ 42—45, in regard to summary proceedings, may be noticed iu this connexion. 124 LAW OF TORTS. [PART II. The first case to be noticed in which the justification of son assault demesne is allowed, is where the plaintili' him- self began an attack upon the defendant. The right of self- defence is sanctioned as well by the municipal law as by the law of nature. And the right extends to the use of phy- sical force in the protection of property as well as of the person of the defendant, provided the property be at the time in the defendant's possession. No one has a right, except under authority of law, to seize upon the property of which the owner is in possession, and he does so at the risk of sustaining bodily violence in the act. For example: The plaintiff", a creditor of the defendant, seizes the defendant's horses (which the latter is using) for the purpose of obtain- ing satisfaction of his debt. The defendant resists and strikes the plaintiff". He is not liable if he did not exceed the bounds of defence \ If the owner or person entitled to possession was out of possession at the time of committing the alleged assault or battery, he will not be permitted to say, by way of defence, that the plaintiff* caused the assault by having previously taken wrongful possession, or by having wrongfully de- tained the defendant's property. Such is not a case of son assault demesne, as the example already given of the horse taken from the plaintiff"'s possession by violence shews'. And though a trespasser should make an assault upon the owner of property, and seek to take it out of the owner's possession, the owner is allowed to use no greater force in resisting the unlawful act than may be necessary for the defence of liis possession^. If he should reply to the ti-es-' 1 See Cluff V. Mutual Ben. Life Jus. Co., 13 Allen, 308; s. c. 99 Mass. 317. ^ Ante, pp. 122, 123. ■* The allowable force in such a case is expressed by the words of the old pleading, 'molliter mauus imposuit', — the defendant gently laid his bands upon the plaintiff. CHAP. I.] ASSAULT AND BATTERY. 125 passer's attempt with a force disproportionate to the provo- cation, the act will then be his own battery, and not the plaintift"'s ; or again in the technical language of the old pleading, the plaintiff can then reply to the defendant's plea of son assault demesne, that the tort was 'de injuria propria sua', — the defendant's own wrong. For example: The defendant, owner of a rake which is in his own hands, knocks the plaintiff down with his fist, upon the plaintiff's taking hold of the rake to get possession of it. The defend- ant is liable \ Again: The defendant strikes the plaintiff repeated blows, knocking her down several times, upon her refusal to quit the defendant's house. The plaintiff is en- titled to recover^. Nor is it lawful for the owner of property, in defence of his possession, to make an attack upon the trespasser with- out first calling upon him to desist from his unlawful pur- pose, unless the trespasser is at the time exercising violence. In the example last given, the defendant would have been liable for a mere hostile touch had he not first requested the plaintiff to leave his premises ; unless she had entered his premises with force ^. In the next place, it is to be observed that a person may not only make reasonable defence of his own person, and of the possession of his own property, but he may do the same towards the members of his own family when attacked*; and perhaps also towards the inmates of a house at which he is then receiving hospitality. Certain it is, that a ser- vant may justify a battery as committed in defence of his master'^; that is, he may do anything in his master's defence which his master himself might do. And, on the other 1 Scribner v. Beach, 4 Denio, 448 (N. Y.). - Gregory v. Hill, 8 T. E. 299. ^ See Scribner v. Beach, supra. ■* 1 Black. Com. 429. 5 Keeve, Domestic Bel. 538 (3rd ed.). 126 LAW OF TORTS. [PART II. hand, notwithstanding some doubts in the books, a master may justify a battery as committed in defence of his ser- vant. For example : The plaintiff attacks the defendant's servant, whereupon the defendant assists his servant to the extent of repelling the attack, and no further. The de- fendant is not liable'. A person may also justify the use of a proper amount of physical force as rendered in quelling a riot or an affray at the instance of a constable or other officer of the peace ^, or perhaps of his own motion, when no officer is present. § 5. Of Violence to or towards one's Servants. It will have been observed that a double breach of duty may be committed by the same assault or battery ; one to the immediate person to whom the violence is done, and, where such person is a servant or a child or wife of the plaintiff, another breach to the person whom he or she was serving or assisting. It follows that each has a right of action against the wrong-doer in respect of the breach of his own individual right ; the servant or other for the violence (that is, for the assault or battery), and its proper consequences, and the master, parent, or husband, for the loss of service or assistance. There will be this difference, however, between the rights of action of the master and the servant (using these terms generically), that the latter will be entitled to recover judg- ment for the mere assault and battery, though no damage were actually inflicted ; while the former will be entitled to judgment only in case he can prove either (1) that the vio- lence committed was such as to disable the person who sus- tained it from rendering the amount of aid which he or she 1 Tickell V. Bead, Lofft, 215. 2 Year-Book, 19 Hen. 6, pp. 4.3, 56 ; L. C. Torts, 270. CHAP. I.] ASSAULT AND BATTERY. 127 was able to render before the act complained of ; or (2) that such person was, by reason of the violence, caused to depart from or abandon the service or abode of the plaintitf'. That is, the master must have sustained an actual damage^; but, if he has thus been injured, he is entitled to recover therefor, even though the defendant's act consisted only in violent demonstrations. For example : The defendants, by menaces and angry demonstrations against the plaintiff's servants, cause them to leave and abandon the plaintiff's service. The defendants are liable ; though no bodily violence was committed upon the servants^. In regard to the master's right of action, it matters not how slight the services may be which the servant could render : if he could render any, and has been disabled or driven away, the master's rights have been violated, and the wrong-doer is liable to him. For example : The defendant commits an assault and battery upon the plaintiff's daughter, and disables her from serving at the head of his table, as she has been accustomed to do. The plaintiff is entitled to recover for the loss of service ^ The plaintiff must, however, either have been entitled to require the services of the party assaulted or beaten, or he must have been in the actual enjoyment of them, if they 1 The authorities upon this subject are mostly ancient, but they are still law. See L. C. Torts, 226, 227. 2 In the case of an assault or battery upon one's wife, the hus- band at common law joined in the action ; but the real right of action lay in the wife. And, in times of servitude, the master could j^erhaps sue for an assault or battery committed upon his villein, even though the former sustained no damage. L. C. Torts, 227. ^ Year-Book, 20 Hen. 7, p. 5 ; L. C. Torts, 226 ; and compare Walker v. Cronin, 107 Mass. 555. ■* The following cases, though actions for seduction, will justify this example : Bennett v, Allcott, 2 T. E. 166 ; Maunder v. Venn, Moody & M. 323 ; Thompson v. Boss, 5 H. & N. 16. 128 LAW OF TORTS. [PAET II. were gratuitous. A parent cannot maintain an action for an assault or a battery committed upon his child after the child's majority, unless he or she was then actually in the parent's service ; nor could the parent maintain an action for such an injury committed upon his child during the child's minority, if the parent had in any way divested himself of tlie right to require his child's services'. It is laid down that only the parties to a contract (and their successors in right) can maintain an action for a breach thereof ; and hence that if, in the course of per- forming a contract between the defendant and the plaintiflf's servant, the defendant commit a battery upon the servant, which battery works a breach of tlie terms of the contract, the plaintiff has no right of action for the loss of service following. For example : The defendants, common carriers of passengers, are paid by the plaintiff's servant for safe passage from A to B. On the way, the servant is severely bruised, wounded, and injured by reason of the failure of the defendants to carry him safely according to their agree- ment ; and the plaintiff thereby loses the injured person's service for a period of nineteen weeks. The plaintiff is deemed not entitled to recover ; the injury being deemed the result of a breach of contract with the servant ^ Whether the case would have been different had the carrier had notice of the relation between the plaintiff and the passenger is not clear ; probably it would not. It is clear that without notice there would be no ground for liability. But the doctrine of the case itself has been much and, it seems, justly criticised^. ^ Questions of this sort have generally arisen in actions for seduc- tion ; and, since the subject must be elsewhere fully examined, it need not be fm-ther pursued at present. See Chapter in. - Alton V. Midland Ey. 19 C. B. n. s. 213 ; s. c. 15 Jur. n. s. 672. 3 See the same case again, post, Part ni. § 9. CHAP. I.] ASSAULT AND BATTERY. 129 By the common law, rights of civil action for injuries done to the person (and indeed' all rights of action ex delicto, excepting for the wrongful taking or detention of property and like acts'), cease with the death of the party injured or of the wrong-doer. 'Actio personalis moritur cum persona.' And this rule, though not without the gravest doubts, has been held to apply to actions by masters for the killing of their servants ^ The rule that the action dies with the death of either party permits, however, an action by the master for damages between the time of the injury of the servant and his death, where death was not immediate^. § 6. Of Felony. There is an old formula of the law that 'trespass is merged in felony'; and assault or battery is a trespass. But the meaning of this maxim is somewhat uncertain. The better view, however, so interprets it as materially to modify if not destroy its force in the natural sense of the lansuase ; for it has been considered to mean this, that where the wrongful act amounts to felony, the injured party ought first, in duty to the public, to see that the cause is prosecuted criminally to conviction (or at least wait until 1 See Phillips v. Homfray, 24 Ch. Div. 439 ; also the early statutes, 4 Edw. III. c. 7, 25 Edw. III. st. 5, c. 5, and the modern one, 3 & 4 Wm. IV. c. 42 ; Pollock, Torts, 56, 57. And Lord Campbell's Act, 9 & 10 Vict. c. 93, gives a right of action to the personal representative ' for the benefit of the wife, husband, parent and child of the person ' killed. See Seward v. The Vera Cruz, 10 App. Cas. 59 (overruling The Franconia, 2 P. D. 163) ; Pym v. Great Northern Ry. Co., 4 Best & S. 396, Ex. Ch. ; Bulmer v. Bulmer, 25 Ch. D. 409. " Osborne v. Gillett, L. R. 8 Ex. 88, Bramwell, B. dissenting strongly. Mr Pollock doubts whether the decision would be foUowed by the Court of Appeal. Torts, 55, 56. •* Baker v. Bolton, 1 Camp. 493; Osborn ij. Gillett, L. R. 8 Ex. 88, 90, 98. B. T. 9 130 LAW OF TORTS. [PART II. that is done by some one) unless the failure can be excused. That condition performed, he may sue the offender ; other- wise not'. But it is admittedly difficult to apply the rule, at least if it is considered to be the duty of the injured party to prosecute; for how could such a duty be enforced ^1 1 Pollock, Torts, 172—174. See Ex parte Ball, 10 Ch. Div. 667, 673; Roope v. D'Avigdor, 10 Q. B. D. 412 ; Wells v. Abrahams, L. R. 7 Q. B. 554 (casting doubt upon Wellock v. Constantine, 2 H. & C. 146). ^ See Wells v. Abrahams, supra, at p. 563. CHAPTER 11. FALSE IMPRISONMENT. § I. Introductory. Statement of the duty. A owes to B the duty to forbear to impose without authority of law, and witliout B's consent, a total restraint upon B's freedom of locomotion. 1. The terms ' writ,' 'warrant,' 'precept,' and 'process,' are, in this chapter, used synonymously. 2. The term ' irregular,' as applied to a writ, refers to some improper practice on the part of the person who obtains the writ. A writ is sometimes absolutely void for irregularity \ and sometimes only voidable. 3. Since 1869 arrests in civil suits have been prohibited, except in a few special cases ^ so that the particular facts of many of the older authorities no longer occur ; but the prin- ciples upon which they rested have not been changed. § 2. Op the Nature of the Restraint. A false imprisonment consists in the total, or substan- tially total, restraint of a man's freedom of locomotion, without authority of law, and against his will. Such an act may be committed not only by placing a man within 1 As a writ in execution of a judgment which has been discharged to the knowledge of the person suing out the same. 2 32 & 33 Vict. c. 62, § 4. 9—2 132 LAW OF TORTS. [PART II. prison walls, but also by restraint imposed upon him in his own house or room, or in the highway, or even in an open field'. Any general restraint is sufficient to constitute an im- prisonment ; and though this be effected witliout actual contact of the person, it will be actionable if unlawful. Any demonstration of physical violence which, to all appearance, can be avoided only by submission, operates as efiectually to constitute an imprisonment, if submitted to, as if contact and force had been exercised. For example: The defendant, an officer, says to the plaintiff, 'I want you to go along with me,' with a show of authority or of determination to compel the plaintiff to go. This is an imprisonment, though the defendant do, not touch the plaintiff". A person may also be imprisoned, though he had not the full power of locomotion before the restraint was imposed. It appears to be sufficient if his will has been so overcome that he would not attempt to escape the restraint if he had the physical ability of locomotion. For example : The defendant, a creditor of the. plaintiff, goes with an officer to the plaintiff's house, to compel him to give security for or make payment of his debt, which is not due. The plaintiff is found sick in bed ; whereupon the officer tells him that they have not come to take liim, but to get a certain article of property belonging to the plaintiff, though, if he will not deliver that or give security, they must take him or leave some one in charge of him. The plaintiff, much alarmed, gives up the article. This is an imprisonment^. 1 Lib. Ass. (22 Edw. III.), p. 104, pi. 85, a very old case, but good law. - Brushaber v. Stegemann, 22 Mich. 266, 268. 2 Grainger v. Hill, 4 Bing. N. C. 212 ; s. c. L. C. Torts, 184. CHAP. II.] FALSE IMPRISONMENT. 133 The submission, therefore, to the threatened and rea- sonably apprehended use of force is not to be considered as a consent to the restraint, within a maxim which has frequent application in the law of torts : ' volenti non tit injuria.' And the imprisonment continues until the party is allowed to depart, and is involuntary until all general restraint ceases, and the means of effecting it are re- moved . It is not enough that restraint is imposed upon one's freedom of proceeding in a particular desired direction. The detention must be such as to cause escape in any direction to amount to a breach of the restraint ; the restraint should be circumscribing, except, perhaps, where the only place of escape is an almost impassable one. For example : The defendant, an officer, stationed at a par- ticular point to prevent persons from passing in a certain direction, restrains the plaintiff from passing that way, but leaves another way open to him, of which, however, he does not wish to avail himself ; and, thus detained, the plain- tiff stands there for some time. Tliis is not an imprison- ment'. It follows from the last proposition, and from what had been stated before, that a person detained within walls is none the less imprisoned by reason of the fact that he may make an escape through an unfastened window or door ; since such an act would be a breach of the restraint. If it would not be, there is no imprisonment ; supposing that 1 Bird V. Jones, 7 Q. B. 742. 'A prison may have its boundary large or narrow, invisible or tangible, actual or real, or indeed in conception only ; it may in itself be moveable or fixed ; but a boundary it must have, and from that boundary the party imprisoned must be prevented from escaping ; he must be prevented from leaving that place within the limit of which the party imprisoned could be confined.' Id. Coleridge, J. 134 LAW OF TORTS. [PART IL the unfastened door or window affords a ready means of escape. § 3. Of Arrests with Warrant. Supposing the restraint imposed to amount to an imprisonment, it is to be noticed that the imprisonment must be a false one, that is, it must be an illegal restraint of freedom, in order to constitute it a breach of duty. Under what circumstances, then, is an imprisonment illegal? It would be impracticable to answer this in the way of any general rule, and quite as much so to enumerate all the cases. The most common and important case of justification, rendering lawful, that is to say, what other- wise would be unlawful, is where an officer has made an arrest under a lawful warrant of a court of justice'. This case will be taken for consideration. It is to be observed at the outset that (supposing the writ to have been properly issued) the officer, in executing his precept, must arrest the person named in it. If he do not, though the arrest of the wrong person was made through mere mistake, it may be a case of false imprison- ment. And this appears to be true, though the party arrested bear the same name as the party against whom the writ is directed. For example : The defendant, a constable, asks the plaintiff if his name is J. D., to which the plaintiff replies in the affirmative ; whereupon the de- fendant takes the plaintiff into custody, the plaintiff" not being the person intended by the writ. This is a case of false imprisonment^. If, however, the plaintiff, though not the person intended by the writ, should intentionally do anything to mislead ^ See observation 3, p. 131, of arrests in civil suits. - Coote V. Lighworth, F. Moore, 457. It is to be noticed that the plaintiff in this case did nothing to induce the officer to ai'rest him as the person intended. CHAP. II.] FALSE IMPRISONMENT. 135 the officer, and cause the latter to believe that the former was the person meant by the precept, the officer commits no breach of duty in making the arrest. The plaintiff's action is a consent, and something more. For example : The defendant, a sheriff, arrests the plaintiff under process of court, upon a representation made by her that she was E. M. D., and the person against whom the writ had issued; with the intention of procuring the defendant to arrest her under his writ. The defendant, believing the representa- tion to be true, makes the arrest. This is not a breach of duty'. The officer's writ, however, should so describe the per- son to be arrested that he may know whom to arrest ; or, rather, that a person whom he proposes to arrest may know whether to resist or submit. If the warrant be defective in this particular, the officer acts at his peril in serving it ; and he will be liable to anyone whom he may arrest under it. For example: The defendant, a constable, arrests the plaintiff under a writ reciting the commission of a felony by John R. M., and then commanding the officer to arrest the said William M. The defendant is (probably) liable for false imprisonment, though the plaintiff is the person intended". It follows that the officer may be liable if there be a misnomer in the warrant of the person intended, though the person actually meant was arrested, and that, too (in other respects), on legal grounds. For example : The defendants cause the plaintiff, whose name is Eveline, to be arrested under the name of Emeline in the warrant. This is a breach of duty, though the plaintiff, in her proper 1 Dunston v. Paterson, 2 C. B. n. s. 495. The sheriff, however, had detained the plaintiff improperly after discovering his mistake, and for this he was held liable. 2 Miller v. Foley, 28 Barb. 630 (N. Y.). 136 LAW OF TORTS. [PART II. name, was legally liable to such an arrest'. But the case would have been different had the plaintiff been known alike by either name^. The officer also loses the protection of his precept if he fail to act in accordance with the duty enjoined by it. He must follow the tenor of his writ, and not surpass his authority. For example : The defendant arrests the plain- tiff beyond the precincts named in the writ. This is a false imprisonment ^ It is further to be noticed that, though the writ and arrest be valid, the protection of the officer may be lost by oppressive or cruel conduct. For example : The defendant, charged with a writ simply to take the body of the plaintiff, unites with the person at whose instance the arrest is made in illegally extorting money from the plaintiff by woi'king upon his fears. The defendant is liable for a false imprisonment*. The officer's protection may also be lost by a detention after the warrant has expired. The warrant, however valid at first, will not justify such an act. If the officer has reason for holding the prisoner after the expiration of the warrant, he must procure a new writ. He can hold the prisoner only for a reasonable time before his examina- tion : after that time, the warrant (that is, the original warrant of arrest) loses its vitality. For example : The defendant arrests the plaintiff, and takes him before a magistrate on a charge of larceny, detaining him for a period of three days, in order that the party whose goods had been stolen might have an opportunity to collect his 1 Scott V. Ely, 4 Wend. 555 (N. Y.). ^ Griswold V. Sedgwick, 1 Wend. 126 (N. Y.). , ^ This is too fundamental to have been much agitated in the courts. No authority is needed for the example. ^ Holley V. Mix, 3 Wend. 350 (N. Y.). CHAP. II.] FALSE IMPRISONMENT. 137 witnesses and prove the crime. This is a false imprison- ment, the detention being unreasonable'. When an arrest has been made upon a valid writ, the officer may detain the prisoner on any number of other valid writs which he has at the time, or which may after- wards, during the detention, reach him. But if the officer make the arrest on a void writ, or in an otherwise illegal manner, he has no right to detain the party on any valid wi'it whicli may be in his hands ; for the officer, upon a principle elsewhere stated, cannot avail himself of a custody effected by illegal means to execute valid process^. The prisoner should first be permitted to go at large, and then ari'ested under the valid writ. For example : The defend- ant improperly arrests the plaintifi" without a warrant, and while holding him in custody delivers him to an officer. The defendant afterwards receives a valid writ for the plaintiff's arrest from an officer who held it at the time of the arrest. The plaintiff has a right of action for a false imprisonment ^. The principle to be derived from the cases (to restate this impoi'tant doctrine in the language of the courts'*) is, then, that where the officer legally arrests the party in one action, the arrest operates virtually as an arrest in all the actions in which the officer holds writs against him at the time ; for it would be an idle and useless ceremony to arrest the party in the other cases. And this detainer will hold good, though the court niay, upon collateral grounds, uncon- nected with the act of the officer, order the party to be discharged from the first arrest. But where the officer has 'O^ 1 Wright i\ Court, 4 B. & C. 596. The prisoner should have been taken before a magistrate at once. - Hooper V. Lane, 6 H. L. Cas. 443. ^ Barratt v. Price, 9 Bing. 566. ■* Tindall, C. J. in Barratt r. Price, and Williams, J. in Hooper v. Lane, supra. 138 LAW OF TORTS. [PART II. illegally arrested the party, he is not in custody under the first writ, but is suffering a false imprisonment ; and such false imprisonment, being no arrest in the original action, cannot operate as an arrest under the other writs in the officer's hands. It is important, in the next place, to inquire into the right of an officer to retake a prisoner under the original warrant, after an escape. It is clear that if the escape was made without the consent of the officer, while the writ was still in force, the j^risoner may be retaken on the old precept, without rendering the officer liable to an action for false imprisonment. In case of an escape permitted by the officer, his right of retaking on the old writ will depend on the nature of the case. In civil cases, an officer who has arrested a man may, it seems, retake him before the return of the writ, though he voluntarily permitted him to escape immediately after the arrest. So at all events it was held under the old law. For example : The defendant arrests the plaintiff' in civil process, and on the following day releases him upon the latter's request. Two days afterwards, the defendant rearrests the plaintiff" on the old writ and commits him to gaol, where he remains until he gives bail ; the old process not being yet returnable (tliat is, being still in force). This is not a breach of duty on the part of the officer'. In regard to criminal cases, there has been some conflict of authority in America in regard to the right to take the prisoner without new process. It has sometimes been decided that the prisoner may be so retaken ^ In later 1 Atkinson v. Matteson, 2 T. R. 172. See 32 & 33 Vict. c. 62, § 4. - Clark V. Cleveland, 6 Hill, 344 (N. Y.). In this case, the prisoner had been let to bail in the wrong county, and then released from custody; and, in an action by him for malicious prosecution, it was held that the plaintiff was still liable to arrest under the original warrant, and that, therefore, the proceedings not being terminated, the action could not be maintained. CHAP. II.] FALSE IMPRISONMENT. 139 decisions, this doctrine has been denied to be law, except in so far as it may apply to the case of a prisoner who, after escape, has returned and given himself into custody of the officer : in this case the prisoner can be detained under the old writ'. And this appeai-s to be the true rule and distinction. For example : The defendant, an officer of the peace, clothed with a warrant to arrest the plaintifl' upon a charge of larceny, executes the writ upon her, and takes her before a justice of the peace, who receives her recognizance to appear for trial at another court upon a certain day. She is then discharged from arrest. No court is held at the place and time stated. Afterwards the defendant rearrests her upon the old warrant, and takes her before another magistrate. This is a false imprisonment*. An arrest made under a void writ will generally render the officer, as has already been stated, liable to an action for false imprisonment. But in order to subject him to such liability, the writ must have been actually void ; that is, of no more validity than waste-paper. If it be voidable merely, or if, though void, the fact do not appear on the face of the writ, the precept affords a protection to the person who serves it^. Now a writ will be void (1) if it be materially defective in language ; an example of which may be seen in the case above stated, where the writ failed to shew wlio was intended by the precept. A writ will be void (2) if the whole proceeding in which it was issued was beyond the jurisdiction of the court granting it. For example : The defendant executes a warrant against the plaintiff for the collection of road taxes ; 1 Doyle V. Eussell, 30 Barb. 300 (N. Y.). 2 Id. ^ Tarlton v. Fisher, 2 Doug. 671 ; Deyo v. Van Valkenbnrgh, 5 Hill, 242 (N. Y.). 140 LAW (3F TORTS. [PART II. the warrant being issued by a justice of the peace who has no autliority over such taxes. The writ is void, and the defendant is liable for false imprisonment'. A writ will be void (3) where the court, though having jurisdiction over the subject-matter of a proceeding, has no authority to institute it by a warrant. For example : The defendant, an officer, executes a warrant for the arrest of the plaintiif in a complaint for the non-payment of wages. The court issuing the writ has jurisdiction over such cases, but has no power to issue a warrant ; a summons being the only process allowed. The writ is void, and the defendant is liable^. In all of these cases, the writ is said to shew its inva- lidity upon its face, and when this is the case the officer is not bound to serve it. The effect of the second and third of these rules is to require the officer to know the general extent of the jurisdiction of the court which he is serving. Further than this the law does not go ; and in other cases the officer will be protected, though his writ were voidable, and liable to be set aside for error, or even though it were actually void^. Cases of this kind are always within the limits of the court's general jurisdiction; and the officer is not liable, since, though bound to know the extent of the court's jurisdiction, he is not presumed to know the nature and propriety of all the proceedings in a cause. If his writ do not indicate its invalidity on its face, the officer is safe, though the writ ought not to have issued. To put the case in the form of a more general proposi- tion, as laid down upon great consideration in an American authority, a ministerial officer is protected in the execution of process, whether the same issue from a court of limited or ' Stephens v. Wilkins, 6 Barr, 260 (Penu.). - Shergold v. Holloway, 2 Strange, 1002. ■' See Deyo v. Van Valkenburgh, 5 Hill, 242 (N. Y.). CHAP. II.] FALSE IMPRISONMENT. 141 of general jurisdiction, though such court have not in fact authority in the particular instance, provided that on the face of the process it appears that the court has jutisdiction of the subject-matter, and nothing appears therein to apprise the officer that the court has not authority to arrest the body of the party named in the process. For example: The defendant, a constable, arrests the plaintiff under a warrant from a justice of the peace issued upon a judgment against the plaintiff in an action witliin the jurisdiction of the court. The court has authority in such cases to issue a warrant, but in this particular instance the suit has not been instituted by the issuance of the necessary process for the appearance of the then defendant, now plaintiff. The defendant has violated no duty to the plaintiff, and is not liable, though the court had no authority to issue the warrant under such circumstances, the writ not indicatinof the fact '. Again : The defendant, an officer, arrests the plaintiff, a member of Parliament, privileged at tlie time from arrest, the writ not indicating the fact. This is not a false imprisonment ^ The clerk of the court (probably) will also, like the officer who serves the precept, be liable in case he made out the writ in a defective form. He has done that which he has no right to do, and is impliedly forbidden to do ; and he must therefore stand upon the same footing with the officer. The clerk may also be liable when the officer who serves the writ is not liable. And this will be the case whenever the writ, though regular on its face (and hence a justification to the officer), was issued without orders of the court, under circumstances in which such issuance is not by law allowed. For example : The defendant, clerk of an inferior court, 1 Savacool v. Boughton, 5 Wend. 170 (N. Y.) ; s. c. L. C. Torts, 241. = Tarlton v. Fisher, 2 Doug. 671. 142 LAW OF TORTS. [PART IL issues a writ of capias on which the plaintiff is arrested, without the presence or intervention of the court, upon a default of the plaintiff, as to tlie granting of which the law requires that the judge should exercise certain judicial func- tions. The defendant is guilty of a breach of duty, and is liable to the plaintiff; and this too though he only conformed to the usual practice of the court in such cases, since a court cannot delegate to another its judicial functions'. The clerk will also (probably) be liable, like both the officer and the judge, when the writ, issued by order of the court, shews upon its face that the whole cause was without the jurisdiction of the judge. It will be different, however, if, while the proceeding was within the jurisdiction of the court, the particular act merely, commanded by the court, was in excess of its jurisdiction, without the clerk's know- ledge. The clerk is a merely ministerial officer, like the sheriff or constable, and is no more bound than such officer to know of the legality of orders of the court within its jurisdiction. For example : The defendant, clerk of a county court, by order of the judge signs and seals a writ for the arrest and imprisonment of the plaintiff for a period of thirty days, after a certain date, upon failure to conform to an order of court; when the order of commitment should have required an earlier arrest. The defendant is not liable, though the judge (as will be seen) would be'. The judge of an inferior court, if he authorizes the arrest, is liable whenever the officer, acting in strict accord- ance with his precept, is liable ; provided the precept be not void for defective language. As the judge does not make out the writ, he cannot be liable for such defect; and the clerk is not his agent or servant^. In other cases, that 1 Andrews v. Marris, 1 Q. B. 3. 2 Dews V. Eiley, 11 C. B. 434. 3 Carratt v. Morley, 1 Q. B. 18. CHAP. II.] FALSE IMPRISONMENT. 143 is, when the court has not jurisdiction of the cause, the proceeding is coram non judice : the court loses its judicial function, and the judge becomes a mere private citizen'. But more than this, the judge may be liable when the officer is not. This will be true whenever the judge has plainly exceeded his jurisdiction, though in a matter not affecting the officer. For example : The defendant, a jus- tice of the peace, fines the plaintiff under the game laws, as he may do, and then sends him to gaol without any attempt to levy the penalty upon his goods, which he has no right to do. He is liable for false imprisonment ; though the officer who executes the writ is not^. When the question of the court's jurisdiction turns on matter of fact, it is laid down as well settled that a judge of a court of record with limited jurisdiction, or a justice of the peace acting judicially, with special and limited authority, is not liable to an action of trespass (of which the action for false imprisonment is an example) for acting without jurisdiction, unless he had the knowledge or means of knowledge, of which he ought to have availed himself, of that which constitutes the defect of jurisdiction^. And it lies upon the plaintiff in every case to prove the fact*. 1 The Marshalsea, 10 Coke, 68 b ; s. c. L. C. Torts, 278, note. * Hill V. Bateman, 2 Strange, 710. The arrest was justifiable, so far as the sheriff was concerned, because, though in the particular instance unauthorized, it was still within the powers of the justice to grant such a writ in a proper case ; that is, after an ineffectual attempt to levy the penalty upon the party's goods. The officer was not bound to know whether such an attempt had been made. Probably he would have been liable had he known that no such attempt had been made ; and this knowledge might perhaps have been easily proved. But, until it was proved, the officer could not be liable. 3 Calder v. Halket, 3 Moore, P. C. 28, Parke, B. ; Pease v. Cbaytor, 32 L. J. Mag. Cas. 121, Blackburn, J. * Calder v. Halket and Pease v. Chaytor, supra, in which Carratt V. Morley, 1 Q. B. 18, apparently contra, is doubted. 144 LAW OF TORTS. [PART II. For example : The defendant, a justice of the peace, hav- ing jurisdiction to grant a capias in certain classes of civil offences, committed within his district, orders the arrest of the plaintiff, on suit brought against him by a third person, for an offence committed without his district. The defend- ant, however, has no knowledge that the act was committed beyond his district, nor is he put upon notice of the fact by anything arising before the arrest. He is not liable for a false imprisonment', unless he acted maliciously and without probable cause ^. When, however, the question of jurisdiction does not depend upon the proof of certain facts, but upon a ques- tion of law, the judge acts at his peril ; and, if he order the arrest of an individual when he has no jurisdiction, not determinable on facts, he will be liable for false imprisonment. For example : The defendant, judge of a court of record of limited jurisdiction, directs the arrest of the plaintiff for contempt of the process of the court, and commits him to gaol. The commitment is unauthorized, and is made under a mistake of law about the powers of the defendant, and not under mistake as to the facts : the statute requiring that the process (under the circumstances) should have been issued by the court of another county. The defendant is liable^. From the statement of the foregoing principles and 1 See Pease v. Chaytor, supra, opinion of Blaclvburn, J. at pp. 125, 126, from which this example is framed. Another example may be seen in Lowther v. Eadnor, 8 East, 113, 119. A distinction must, however, be noticed (which was pointed out in Pease v. Chaytor) between a proceeding to prevent the enforcement of a judgment in such a case — that would be proper — and an action against the judge of the court, as in the example. ^ Id. But the case could then be an action for malicious prosecu- tion. 3 Houlden v. Smith, 14 Q. B. 841. CHAP. II.] FALSE IMPRISONMENT. 145 examples, it will be seen (1) that the oiScer alone may be liable for false imprisonment ; as where he executes his writ upon the wrong person, without the latter's fault : (2) that the clerk alone may be liable ; as where, without direction from the judge, he issues a precept regular in form, and within the jurisdiction of the court, but which he had no right at all to issue : (3) that the judge alone may be liable ; as where, having jurisdiction over the cause, he orders the issuance of the warrant under circum- stances in which the act was improper : (4) that the officer and the clerk may alone be liable ; as where the writ con- tains substantially defective language : (5) that all three may be liable ; as where the whole cause, in the course of which the writ is issued (at the command of the judge), is without the jurisdiction of the court. This is not all. The liability for a false imprisonment may extend to the attorney at whose instance the proceed- ing was begun, and, further still, to his client who author- ized him to begin it. Indeed, this will always be the case wherever it can be properly said that the wrongful imprison- ment was ordered or participated in by the client. When the judge assumes the power of ordering the war- I'ant, upon a statement of the grounds, the act (with the exception to be stated presently) is his own, and not the attorney's or his client's' ; and this, too, though counsel were urgent for the issuance of the writ"; the attorney or client has not set a ministerial but a judicial officer in motion ^ If this be the extent of the connexion of the 1 Carratt 'v. Morley, 1 Q. B. 18; Williams v. Smith, 14 C. B. N. s. 596 ; Smith v. Sydney, L. R. 5 Q. B. 203. - Cooper V. Harding, 7 Q. B. 928. •' In this appears one chief distinction between an action for false imprisonment and one for malicious j)rosecution. ' The party making the charge [before a magistrate] is not liable to an action for B. T. 10 1 46 LAW OF TOETS. [PART II. attorney and client with the arrest, neither can be liable, whether the writ was granted upon a mistaken view of the law by the judge in regard as to his jurisdiction (in which case he would be liable), or was issued in a materially defective form (in which case the clerk and the officer Avould be liable) : the act is that of another. Illustrations may be seen in the examples above given. Hence the attorney and client may not be liable, though the process was void on its face". The attorney, and his client with him, may, however, become liable in a case in which the arrest has been thus ordered by the judge. Such a result will come about when- ever the attorney participates in any manner in effecting the arrest after the issuance of the improper warrant. For example : The defendants, attorney and client in a former litigation against the present plaintiff, having obtained an erroneous warrant against the latter from the judge, the attorney personally puts the precept into the officer's hands, and directs him to serve it. The defendants are both liable; the attorney because of Iiis personal interference, the client because bound by the act of his attorney in the oi'dinary course of the litigation'. Again : The defendant, an at- false imprisonment because he does not set a ministerial officer in motion, but a judicial officer. The opinion and the judgment of a jiidicial officer are interposed between the charge and the imprison- ment.' Austin V. Dowling L. E. 5 C. P. 534, 540, Willes, J. 1 Carratt v. Morley, 1 Q. B. 18. The author withdraws his criti- cism on this case, made in his Leading Cases on Torts, p. 280. The client had done nothing but to ask for a writ ; and the court, acting judicially, granted it. The act was, therefore, the act of the judge, and not of the party. The latter, to be liable, must either have directed the execution of the writ after its issuance, or have obtained it from the court in an irregular manner, or have participated in the execution of it. - Barker v. Braham, 2 W. Black. 866; s. c. L. C. Torts, 235. CHAP. II.] FALSE IMPRISONMENT. 147 torney, indorses with his name and residence an invalid warrant, issued against the plaintiff. This makes him a participant in the false imprisonment which follows' ; and his client also. When the writ of arrest is issued through misconduct of the attorney, or material misrepi-esentations (even though not fraudulent), or even through his mistake, the act is not the act of the judge, unless he had no jurisdiction to grant the writ, but of the attorney, and of his client whom he i-ep resents". The consequence is, that the last named are both liable for false imprisonment upon the execution of the precept ; even though they take no further steps in the matter than those involved in obtaining the writ^. For example : The defendants, attorney and client in a former suit against the present plaintifi', obtain a warrant therein for the latter's arrest upon material misrepresentations made in an affidavit upon which the warrant is awarded, on account of which misrepresentations the warrant is, after the plaintiff's arrest, set aside. They are both liable*. Again : The defendant, by his attorney, in a former suit against the now plaintiff, procures the arrest therein of the last named under a writ issued by mistake against a person not bearing the name of the present plaintiff. This is a false imprisonment, and the defendant is liable, although 1 Green v. Elgie, 5 Q. B. 99. 2 Williams V. Smith, 14 C. B. n. s. 596 ; Codrington v. Lloyd, 8 Ad. & E. 449; CoUett v. Foster, 2 Hurl. & N. 356. See Davies v. Jenkins, 11 M. & W. 745. 3 This is -what is meant when it is said that the attorney and his client are liable in case of irregularity in obtaining the writ. Irregu- larity (in this sense) is the act of the party and not of the court. See Codi-ington v. Lloyd, 8 Ad. & E. 449. 4 "Williams v. Smith, 14 C. B. N. s. 596. The action was not sustained in this second suit because the misrepresentations were not material. 10—2 148 LAW OF TORTS. [PART II. the person intended was arrested'. Again : The defend- ants, attorney and client in a former civil action against the now plaintiff, in which they obtained judgment against him, obtain a warrant for the arrest of the plaintiff by virtue of the judgment, after a discharge therefrom of the plaintiff by proceedings in insolvency, of which the defend- ants had notice. They are liable for false imprisonment ; unless it can be shewn that the discharge was obtained by fraud ^. It will thus be seen that there may be cases in which all the parties named will be jointly liable, client, attorney, officer, clerk, and judge. Such will be the result where the attorney personally directs the officer to serve a writ upon the plaintiflt', issued by the judge's order, in a civil cause, wholly beyond the jurisdiction of his court. There is a structural distinction between civil and crim- inal cases ; the parties are different. A civil suit is a litigation between individuals : a criminal suit is a litiga- tion between the Crown and an individual. The prosecutor in a criminal action does not represent the plaintiff in a civil suit. A civil proceeding is instituted in the interest and for the benefit of the plaintiff, and is under his control throughout : the plaintiff is 'dominus litis.' False steps and misconduct on his behalf in the course of the litigation will therefoi-e bind him, as has already been seen. The prose- cutor of crime, however, is not a party to the litigation instituted by him. The proceeding is not carried on pri- ^ See Jarmain v. Hooper, 6 Man. & G. 827. - Deyo V. Van Valkenburgh, 5 Hill, 242 (N. Y.), This is the exception alluded to above, by which the attorney and client are liable, though the judge has been merely asked to grant the warrant. But it was misconduct to ask for the warrant when it was known that the judgment had been discharged, unless j^roof could be brought that the discharge was fraudulent. The judge, having no jurisdiction to grant the warrant in such a case, would also be liable. CHAP. II.] FALSE IMPRISONMENT. 149 marily in his interest ; and he has no control over its course. The consequence is, he cannot be bound by the action of the attorney-general or other prosecuting officer. He may, however, bind himself, and become liable for a false im- prisonment by acts of his own, or of counsel whom he may employ to assist the Crown. If the prosecutor or his attor- ney should personally direct the service of an invalid writ, whether void or only voidable, he would be liable to the party arrested '. Before an action for false imprisonment under process of court can be maintained, it is necessary that the writ should be set aside, unless it appear to be absolutely void. For if the process be merely voidable, it is valid until quashed ; and hence the arrest must, till then, be legal. If, however, the process be absolutely void, and the action be brought against the proper party or parties, it is not necessary (probably), either in cases of civil or in criminal arrests, to have it set aside before suing for false imprison- ment. For example : The defendant procures the arrest of the plaintiff on a warrant issued upon a judgment which the former knows to have been discharged; and the plaintiff sues for false imprisonment without first having the writ set aside. The action is maintainable ; the writ being absolutely void^. Again : The defendant, a justice of the peace, procures the arrest of the plaintiff upon four con- victions before him of baking bread on one and the same Sunday ; the law permitting but one conviction in such a case. The defendant is liable for false imprisonment, though the wrongful convictions be not first quashed^. 1 Hopkins r. Crowe, 4 Ad. & E. 774. 2 Deyo V. Van Valkenburgh, 5 Hill, 242 (N. Y.). 3 Crepps V. Durclen, 2 Cowp. 640. In this case there was no arrest, but merely a levy on the plaintiff's goods for the amount of the penalty ; but the principle would be the same. 150 LAW OF TORTS. [PART II. In both civil and criminal cases, however, the action is to be distinguished from a suit for malicious prosecution. The writ in an action for a false imprisonment, made under process of court, may have been, as regards the party or parties sued for the tort, either void or voidable ' ; and, in such a case, the action is maintainable without proof of malice, or of want of probable cause, or of the termination of the prosecution. In an action for malicious prosecution, however, it matters not whether the writ was void, voidable, or valid ; but the plaintifF, as has been seen, has the burden of proving all the facts just stated. § 4. Op Arrests without Warrant. It is not necessary, however, in all cases that an arrest for an infraction of the law should be made under authority and by command of a warrant. There are occasions on which the utmost promptness of action is required for the attainment of the ends of justice in the apprehension of law-breakers ; and the necessities of society have in such cases furnished a justification for the arrest of oflfenders without a formal warrant of a court of justice. But the law does not encourage the making of arrests in this manner : on the contrary, in the interest of liberty, it prefers a slower and more deliberate proceeding by warrant, issued upon solemn oath concerning the facts, in al] cases in which the administration of justice can thus be efiiciently carried out. The occasions on which arrests without warrant are considered justifiable upon the above stated ground are ^ It will be noticed that to sustain an action against the officer who served the writ, or against the clerk, the writ must have been void on its face; while it is enough in this respect, to sustain an action against the judge or attorney and cHent, that the writ was only voidable. CHAP. II.] FALSE IMPRISONMENT. 151 well defined. In the first place, it must be well understood that the right to make such arrests is confined altogether to infractions of the criminal law. In no case can an officer make an arrest in a civil cause without the protection of a warrant. It may be true, as has already been stated, that, in cases of the release of a prisoner arrested on process in a civil action, the ofiicer may retake the party witliout obtaining a special warrant for this particular pur- pose ; but that is because he has already a warrant, which is still in force. Hence, the ofiicer does make the arrest under a writ ; and he must justify his act under that writ. The first case to be mentioned in which an arrest can be made without a warrant, is when the arrest is made upon the spot, at the time of the breach of the peace. Such a case comes directly within the i^eason above mentioned, namely, the necessities of society ; nor could there be any use of requiring an affidavit and warrant in such a case, even if the delay might not be fatal. Tlie right thus to arrest on the spot applies equally to all breaches of the peace, whether the act be a crime or a misdemeanour. An arrest without warrant may also be made by an officer of the law, qualified for the making of arrests, upon 'suspicion of felony,' to use a common expression of the books. The meaning of this is, that if in an action for false imprisonment, without warrant (that is, because with- out warrant), the officer can shew that, though no felony was in fact committed, he had probable cause to suppose that the prisoner had committed such a crime, he lias violated no duty to the plaintiff in thus making the arrest. For example: The defendant, a constable, having probable cause to believe that the plaintiff is guilty of the felony of receiving or aiding in the concealment of stolen goods, arrests him without a warrant, and conveys him to gaol. 152 LAW OF TORTS. [PART IL where he detains the prisoner until he can make application to a magistrate for a warrant against him as a receiver ot" stolen goods. The warrant is refused, and the prisoner at once discharged. The defendant is not liable'. The officer's suspicion must, however, as above intimated, be a reasonable ground to suppose the prisoner guilty of a felony ; that is, it must be such a strong suspicion as would justify a man of caution in entertaining a belief in the party's guilt. If the circumstances do not warrant such a belief, even though in fact a felony has been committed, the officer violates his duty to the plaintiff by arresting him without process of court ^. For example : The defendant, a constable, arrests and imprisons the plaintiff, without process, under the following circumstances : The cart of the plaintiff, a butcher, is passing along the highway, when a person, in the habit of attending fairs, stops the cart and says to the officer (defendant), ' These are my traces, which were stolen at the peace-rejoicing last year.' The defendant asks the plaintiff how he came by the traces. The plaintiff replies that he saw a stranger pick them up in the road, and bought them of him for a shilling ; whereupon he is taken into custody, and, on examination before a magis- trate, discharged. This does not shew probable cause for the arrest, and the defendant is liable^. In the authority from which this example is taken, the whole case was given to the judges, with power to act as a jury so far as might be necessary for the decision of the 1 Eohan v. Sawin, 5 Cush. 281 (Mass.), - The process would justify the officer in such a case, since the granting of it would be a declaration of the judge that there exists probable cause to beUeve the party guilty. The term ' probable cause ' here, as in the chapter on Malicious Prosecution, is used for ' reasonable and probable cause. ' 3 Hogg V. Ward, 3 H. & N. 417; s. c. L. C. Torts, 252. CHAP. II.] FALSE IMPRISONMENT. 153 question before them. It therefore does not appear from the decision, whether the question of probable cause is to be considered as a question for the judge or for the jury ; and the point was expressly left undecided by the judges. The question has, indeed, been one of some difficulty. In some of the cases, it has been tacitly assumed that the jury must determine whether the officer had probable cause for taking the plaintiff into custody' ; in others, that it is for the court to say whether the facts proved shew proper cause ^. The point has, however, been decided in accordance with this latter view, though not without expressions of regret^ ; making the rule to conform to that of actions for malicious prosecution. If the analogy furnished by the law of actions for malicious prosecution is to be fully carried out, and it appears reasonable that it should be, it will also be neces- sary for the officer to shew that this reasonable ground for making the ari'est consisted of facts within his own posses- sion at the time of the arrest, and that he cannot justify on facts which afterwards came to his notice. Nor, on the other hand, if his justification lie in the facts before him at the time of taking the party into custody, will his defence be overturned by evidence of facts indicating innocence, that came to his notice after the imprisonment^. At common law, no valid arrest without a warrant can be made for a misdemeanour, except on the spot'\ To arrest 1 Beckwith v. Philby, 6 B. & C. 635; Rohan v. Sawin, 5 Gush. 281 (Mass.). 2 Hill V. Yates, 8 Taunt. 182 ; Davis v. Russell, 5 Bing. 354. 3 Lister v. Perryman, L. E. 4 H. L. 521, 531, 538, 539. -* See ante, pp. 60, et seq. 5 'Whether and how far this may have been changed in regard to the duties of policemen in large cities cannot here be considered. See 1 Stephen's, History of Criminal Law, 197, 199, 200; Pollock, Torts, 190. 154 LAW OF TORTS. [PART II. a man, without process, on suspicion that he has committed a misdemeanour, although upon probable cause for his arrest, is a breach of duty. For example : The defendant, a constable, arrests the plaintiff without a writ on the statement of J. M., that the plaintiff has committed the offence of perjury, by wilfully and corruptly making a false affidaAdt in a judicial proceeding before the Honourable W. W., judge of a court, and he takes the plaintiff into custody upon this charge, at the direction of J. M. He is liable to the plaintiff for a false imprisonment ' ; though he would not have been, had the offence charged been a felony. And the arrest must not only have been made upon the spot : it must also have been made, in the case of an actual breach of the peace, l^efore the breach has entirely ceased. For example : The defendant, a constable, takes the plain- tiff into custody without a warrant under the following cir- cumstances : The plaintiff had been making a disturbance about certain premises in the night-time, and had refused, on request of the defendant, to desist. Perceiving that the defendant intends to arrest him, the plaintiff flees and is pursued, overtaken, and arrested ; the disturbance having previously ceased. The defendant is liable^. In the case of affrays, however, an arrest may be made without a warrant not only during the actual breach of the peace, but so long as the offender's conduct shews that the public peace is likely to be endangered by his acts. Indeed, 1 Bowditch V. Balchin, 5 Ex. 378. See Commonwealth v. Carey, 12 Ciish. 246, 252 (Mass.) ; Commonwealth v. McLaughlin, Id. 615, 618. - Compare Baynes v. Brewster, 2 Q. B. 375, where the defendant, on such facts, was a private citizen; but the rule would have been the same had he been an officer, as the language of Mr Justice Williams in that case shews. CHAP. II.] FALSE IMPRISONMENT. 155 while those are assembled together who have been com- mitting acts of violence, and the danger of renewal con- tinues, the aflray may be said to continue ; and during the affray, thus understood, the officer may arrest the offender not only on his own view, but even on the information or complaint of another. This is true even of an arrest by a private citizen'. For example: The defendant arrests the plaintiff without process under the following circumstances : The plaintiff had entered the defendant's shop to make a purchase, when a dispute arose between the plaintiff and a servant of the defendant, resulting in an affray between them. The defendant, coming into the shop during the affray, orders the plaintiff to leave, which he refuses to do ; the violence having then ceased, though there is still danger of a renewal of the affray. The defendant now gives the plaintiff into the custody of an officer. This is no breach of duty to the plaintiff'. The example given leads to the consideration of the nature of the right of a private citizen to arrest offenders without process of court ; for it is (probably) lawful for sucli a person to make an arrest upon a warrant under the same circumstances in which an officer could do so. The rule of law in regard to arrests for misdemeanours by private citizens is the same as prevails concerning officers ; they are entitled to make the arrest without process while the breach of the peace is going on or (in accordance with the explanation given) still continues. But a private citizen has no right to make an arrest, without a writ, for a misdemeanour after its termination, though the breacli of peace was committed about his own premises^. 1 Timothy v. Shnpson, 1 Cromp. M. & K. 757; s. c. L. C. Torts?, 257; Baynes v. Brewster, 2 Q. B. 375, 386. - Timothy v. Simpson, supra. ■' Baynes v. Brewster, supra. 156 LAW OF TOUTS. [PART II. In regard to felonies, the rights of officers and private citizens are different. While an officer can arrest without a warrant upon probable cause, though no felony has been committed, a private citizen can safely make an arrest without a warrant only (1) when the felony charged has actually been committed, and (2) when there was probable cause for supposing the party arrested to be guilty' . 1 Allen V. Wright, 8 Car. & P. 522; s. c. L. C. Torts, 265. In Commonwealth v. Carey, 12 Cush. 246, 251, Chief Justice Shaw, in a dictum, states the rule thus : ' A private citizen, who arrests another on a charge of felony, does it at the peril of being able to prove a felony actually committed by the person arrested.' But that appears to be a mistake. CHAPTER III. ENTICEMENT AND SEDUCTION. § 1. Introductory. Statement of the duty. A owes to B the duty to forbear to procure or cause C to deprive B of C's service or con- sortium. The law of enticement and seduction gives a right of redress (1) for wrongfully interrupting the relation of master and servant, or of husband and wife, and (2) for wrongfully preventing the renewal of such relation, or in the language of the books for ' harbouring ' the servant or wife. ' Enticement ' here means enticing away from service. The relation of master and servant is sustained not only between persons one of whom has contracted to perform services for the other, but also between persons one of whom gives his services to the other gratuitously, and possibly between persons one of whom is under the custody or guardianship of the other. The relation thus expressed therefore includes (I) that of master and servant ex con- ti'actu, (2) of master and servant ex gratia, (3) of parent and child, and (4) of guardian and ward. The law of enticement differs so slightly from the law of seduction, that these subjects can be conveniently treated 158 LAW OF TORTS. [PART II. as one in nearly all their legal features. Unless, then, the contrary be indicated, it will be understood that what is said under either designation will apply, where the facts permit, to the other subject'. The whole subject will now be examined in the order indicated in the paragraph explaining the use of the term master and servant ; the subject of husband and wife following the various divisions relating to service. § 2. Of Master and Servant ex Contractu. Any person who, with notice of the existence of the relation of master and servant, interrupts that relation, without the consent of the master, by procuring the servant to depart from his master's service, violates a duty which he owes to the latter, and becomes liable in damages to him. For example : The defendant entices away from the service of the plaintiff his journeymen shoe- makers, with notice of their relation to the plaintiff, per- suading them to enter into his, the defendant's, service. This is a breach of duty". It matters not in cases of a binding engagement to service that the servant had not yet entered upon the performance of the service at the time of the enticement or seduction. If by the terms of the contract or the appren- ticeship (for there is no difference between an ordinary contract of hiring and an apprenticeship, so far as the present subject is concerned) the master has a right to - The terms ' seduction ' and ' enticement ' are often indifferently used in the old, and sometimes in the later, books. A journeyman, for example, is said to have been seduced, when he has been enticed away from his master's service. See the marginal note to Hart i'. Aldridge, 1 Cowp. 54. 2 Hart V. Aldridge, supra; Walker r. Cronin, 107 Mass. 555. CHAP. III.] ENTICEMENT AND SEDUCTION. 159 require performance of the services at the time of the en- ticement, he has a right of redress for a wrongful inter- ference with tliat right. For example : The defendant induces the plaintiff's gardener to refuse altogether to carry out his engagement to make the plaintiff's gardens, though the gardener, owing to dissatisfaction with his en- gagement, has already absented himself for a consider- able time from liis duties under the contract of hiring. The defendant is liable'. In the foregoing examples, the defendant had notice of the existence of the relation of master and servant when he procured the servant to leave his master. Now, notice of the existence of this relation is necessary in all cases of actual service : in the absence of notice, the party enticing away or seducing the servant violates no duty to the master. But it matters not that such party had no notice at first of the existence of the relation, if he afterwards acquire notice and then persist in keeping the servant away from his master. For example : The defendant employs the plaintiff's servant, upon application by the latter ; the servant having left the plaintiff' during the existence of his contract of service, of which, however, the defendant is ignorant. Afterwards the plaintiff in- forms the defendant that the person employed by him is his (the plaintiff's) servant. The plaintiff requests the servant to return to him, and the servant refuses ; and the defendant then continues to keep him in his employ. Tlie defendant is liable for so continuing to keep the servant, though not for taking him into his service ^ In order, however, to maintain an action for preventing a renewal of the service (for harbouring a servant), and 1 Compare Lumley v. Gye, 2 El. & B. 216 ; s. c. L. C. Torts, 306. •- Blake v. Lauyon, 6 T. E. 221. 160 LAW OF TORTS. [PART II. not for interrupting it, it is necessary that there should be a binding contract of service. If there be no such engage- ment, the defendant cannot be liable to the plaintiff for persuading the servant to stay where he is rather tlian return to the plaintiff, since the plaintiff neither has any right to require the service in such a case, nor is he at the time in the enjoyment of it as a gratuity. For example : The defendant receives, without notice, a person who has been acting in the service of the plaintiff under a contract void by the Statute of Frauds, and afterwards, on notice of the plaintiff's claim to the service, during the term of service agreed upon, refuses to send the person away. This is no breach of duty to the plaintiff''. Some question has been made, whether this doctrine concerning the liability of one who wrongfully entices away, seduces, or harbours another's servant is an exception to established rules of law, and must therefore be confined strictly to cases of enticing servants in the ordinary sense of persons performing manual labour for an employer, or whether such cases are not, on the contrary, merely special instances of a wider rule of law". But it appears to have become established that this subject is a special one, and not an example. For inducing one to break a contract generally, there is no liability, unless the act was malicious, as has been seen in a previous chapter^. That is a different thing from the present subject. § 3. Of Master and Servant ex Gratia. It was formerly a matter of some doubt if an action could be maintained for interrupting, with notice, the 1 Sykes v. Di-xon, 9 Ad. & E. 693. See also Hartley v. Cummings, 5 C. B. 247; Pilkiugton r. Scott, 15 M. & W. 657. 2 Lumley v. Gye, 2 El. & B. 216. See Boweu r. Hall, 6 Q. B. Div. 333. 3 Ante, chap. iv. Part I. CHAP. III.] ENTICEMENT AND SEDUCTION. 161 fifratuitous relation of master and servant. It was some- times supposed that inasmuch as the master in such a case could not require the services, he had no right to them which could be infringed. But tliis view does not now obtain. Though a person may not be able to require the bestowment of a gratuity, he has a right to it when it is bestowed, and in the course of receiving it, and no one may interrupt his actual enjoyment of the gratuity'. Hence if a person be actually engaged in giving his services to another, anyone who, with notice, voluntarily interrupts the service violates a legal duty to the recipient of the gratuity, and becomes liable in damages. For example : The defendant, with notice, entices away a young woman while she is in the gratuitous service of the plaintiff, and thereby deprives the plaintiff of the benefit of her help. The plaintiff is entitled to recover damages therefor". Indeed, it matters not in such cases that the person enticed was actually under obligation to another ; if the latter do not insist upon his rights, no third person can set up those rights to escape liability for a wrongful act. For example : The defendant, with notice, seduces a married woman while she is rendering gratuitous service to the plaintiff, her father. The defendant is liable, and cannot set up in defence the paramount right of the woman's husband to her help^ As was observed, however, in the preceding section, and as follows from what has been said in the present, no action can be maintained for mere harbouring a servant ex gratia, though with notice : the action lies solely for enticing the person away or otherwise interrupting the performance of 1 See ante, p. 12. - Evans v. Walton, L. R, 2 C. P. 615. The young woman in this case was the plaintiS's daughter, but she was of age. 3 Harper v. Luffkin, 7 B. & C. 387. B. T. 11 162 LAW OF TORTS. [PART II. the service while the servant is disposed to, and engaged in, the performance of it. When the servant has put an end to the relation, the rights of the master at once terminate. § 4. Of Parent and Child. A parent's right of action against one who has seduced or enticed away his child is the right of action of a master sub modo. That is to say, it requires the exist- ence of the relation of master and servant between the parent and the child, but the right of action, as will presently be seen, is not co-extensive with the right to require the child's service. The action in question does not turn upon parental authority or upon the kinship of parent and child. The law gives a right of action for the child's seduction so long at least as the child remains at home, and renders any part of her service to the parent ; and tliis is true, even though the child has attained majority, as would follow from what has been said in the preceding section, and as will further appear in the present. But the relation may be severed (for the present pur- pose) by the child alone ; the right of action is gone when the child leaves her parent's house, and has no intention of returning', or while she is away in the service of an- 1 Dean v. Peel, 5 East, 45. See Griffiths v. Teetgen, 15 C. B. 344 ; Manley v. Field, 7 C. B. n. s. 96 ; Hedges v. Tagg, L. R. 7 Ex. 283. In America, however, the fat]ier''s right of action is considered to depend, not upon the will of the child, but upon the will of the parent; and hence, notwithstanding the absence of the child from her father's house at the time of the seduction, the father has a right of action if he has not divested himself of his right to require her services, even though she were at the time of the wi'ong .in the service of another with her father's permission. For example: The defendant seduces the plaintiff's daughter under the following circumstances : The daughter, at the age of nineteen, with the consent of her father, the Ijlaintiff, goes to live with a relative, for whom she works when she CHAP. III.] ENTICEMENT AND SEDUCTION. 163 other. It is considered, however, that, if the parent's control over his chikl was divested by fraud, he may treat it, on discovering the fraud, as never having been abandoned, and maintain an action against the seducer. For example : The defendant hires the plaintiff's daughter from his ser- vice with intent to seduce her, and by this means obtains possession of her person, and seduces her. The plaintiff is entitled to recover as if the daughter had been seduced while in his own service'. It seems not necessary that the child should have j)er- formed specific acts of service. But the performance of the slightest acts, such as pouring tea at the table', is enough to shew tlie ability to render service ; and such ability is laid down to be the gist of the action^. Where, however, parent and child are living together, that fact shews, it seems, a presumptive right of action*; where the child is away for a time, but not out on service, an pleases, receiving pay for her labour. While thus at her relative's house, she is seduced and got with child by the defendant, and at once returns to her father's, and is there cared for. She, however, had no intention, but for the seduction, to return to her father. The defend- ant has violated a duty to the plaintiff, since the plaintiff had a right to require his daughter's services at the time of the seduction. Martin V. Payne, 9 Johns. 387 (N. Y.) ; s. c. L. C. Torts, 286. This, however, is the extent of the American rule. If the power of the parent over his daughter be gone at the time of the seduction, whether by his own consent in emancipating her or binding her out to service, or by the act of the law in taking her away from him, the seducer has violated no legal duty to him ; though there has been some doubt as to the application of this doctrine in the case of the return of the daughter to the parent after the seduction. See p. 167. 1 Speight V. Oliviera, 2 Stark. 493. See Evans v. Walton, L. E. 2 C. P. 615, 62-1. - See note to Grinnell v. Wells, 7 Man. & G. 104-4 ; ante, p. 127. 3 HaU V. Hollander, 4 B. A C. 660 ; ante, p. 127. ■* Thompson v. Ross, 5 H. & N. 16; Terry v. Hutchinson, L. R, 3 Q. B. 599, 602. 11—2 164 LAW OF TORTS, [PART II. intention on her part to return is jjresumptively sufficient, for that shews that she has not severed (de facto) the relation '. The father's right of action continues, as has already been observed, after the daughter has come of age, if the relation of master and servant is still in operation between them. If the parent continue to exercise authority over the daughter after her majority, and she continue to submit, she is still his servant, though not under an actual engage- ment to serve him ; and sedviction under such circumstances is a breach of legal duty to the parent. For example : The defendant seduces the plain tiif's daughter, aged twenty-two years. Pi'ior to and at the time of the seduction, the daughter has been living part of the time with her brother, who resides about a mile from her father's house, and part of the time with her father. She has not received wages from her brother, and when at home has worked for her mother, the plaintiff buying her clothing. The daughter is the plaintiff's servant, and the defendant is liable ^ It has been held that the seduction should be followed by pregnancy or disease to entitle the plaintiff to recover*, but there is some doubt of the soundness of this*. The American rule is, that where the proper effect of tlie connection is an incapacity to labour, by reason of which the plaintiff loses the services of his daughter and servant, the loss of such services entitles the plaintiff to recover against the seducer. The same principle which gives a master an action where the connection causes pregnancy 1 Terry v. Hutchinson, supra. ^ Sutton V. Huffman, 3 Vroom, 58 (N. J.) ; Eist v. Faux, 4 Best & S. 409, Ex. Ch. 2 Eager v. Griniwood, 1 Ex. 61. ■1 Evans v. Walton, L. E. 2 C. P. Glo, 617 ; Abrahams v. Kidney, 104 Mass. 222. •€HAP, III.] ENTICEMENT AND SEDUCTION. 165 applies to the case of sexual disease, and, indeed, to all ■cases where the proper consequence of the act of the de- fendant is a loss of health resulting in an incapacity for such service as could have been rendered before. For example : The defendant seduces the plaintiif' s minor daughter, by reason of which, without becoming pregnant (or being affected with sexual disease), she suffers gen- eral injury in health, so that it becomes necessary for the plaintiff to send her away for her recovery ; whereby he incurs expense and loses his daughter's services. The defendant is liable'. If, however, the loss of health be caused by mental suf- fering not the consequence of the seduction, but produced by subsequent intervening causes, the loss of service is not the proper consequence in contemplation of law of the defendant's act ; and hence the action cannot be main- tained. For example : The defendant seduces the plain- tiff's minor daughter, and subsequently abandons her, in consequence of which she suffers such distress of mind as to bring illness upon her, and incapacitate her for perform- ing services for the plaintiff"; no pregnancy or disease I'esulting by direct consequence of the seduction. The defendant is not liable, it seems, to the plaintiff^. If a loss of service follow as the proper effect of the defendant's act, it is held in America to be immaterial that he accomplished his purpose without resorting to seductive arts. The willingness of the daughter cannot affect the parent's rights^; though the ready consent of the young woman might be ground for mitigation of damages \ 1 Abrahams v. Kidney, supra ; Boyle r. Brandon, 13 M. & W. 738. - Boyle V. Brandon, supra ; Abrahams r. Kidney, supra. * Damon v. Moore, 5 Lans. 454 (N. Y.) ■* Hogan V. Cregan, 6 Rab. 138 (N. Y.), criticised in Damon v. Moore, supra. Comp. Winter v. Henn, 4 Car. & P. 494 and Forster v. 16G LAW OF TORTS. [PART 11. What has been said in the preceding paragraphs con- cerning the pai-ent's right of action for loss of service must be understood of the father's cLaim to damages. During his guardianship of the daughter, the right of action be- longs to him alone. Should he be removed by the law from his natural position of authority, or should he die during the child's minority, the question arises of the mother's right of action against the seducer. It is clear if the guardianship of the child has been given to her, she has a right of action for tlie loss of service ; though it may be doubted if at the present time the mere relation of guardian, apart from that of parent, would, in all cases, afford a right of action for the child's seduction, — a point to be further adverted to in the next section. A difficulty arises where the mother, upon the death of the father, or his removal from the guardianship, simply continues to exercise authority over her daughter, and to receive her (voluntary) obedience, without having received an appointment as guardian. The mother's right of action has sometimes been supposed to turn upon the question of her right to require the child's support in such a case, — a doubtful point of law. It is now well settled in America, however, that so long as the daughter continues to give obedience and service to her mother, the latter has a right. Forster, 33 L. J. Prob. & M. 150, n. , as to criminal conversation : post,, p. 175. Perhaps this would be true if the daughter were a notoriously loose character, and had already brought her family to mortification.. In general, the damages in an action by a parent for seduction are not confined to the loss of service. While the loss of service is of the gist of the action, still when the loss is estabUshed, and shewn to have been caused by the defendant's acts, the court permits the jury to give damages for the disgrace that has been inflicted upon the plaintiff's family. L. C. Torts, 294. But, if the sense of disgrace had already befallen his family by the daughter's conduct, the defendant could hardly be liable for anything beyond the loss of service. CHAP. III.] ENTICEMENT AND SEDUCTION. 167 of action for a wrongful interruption of the daugliter's position of servant'. For example : The defendant seduces the minor daughter of the plaintiff, a widow. The daughter, having previously been in the service of the defendant, and then in the service of D, returns from the latter person to her mother to aid her during sickness in the family. While thus with her mother for a day or two, she is got witli child by the defendant. The defendant has violated a legal duty to the plaintiff, and is liable in damages". The authority from which this example has been given went one step further, and decided that the mother's right of action was not affected by the fact that the daughter, when seduced, was actually in the service of another, so long as she indicated a willingness to consider her mother as still entitled to her assistance. The case would of course be different in England if the daughter had no intention to return to her mother. There is also conflict of American authority concerning the mother's right of action in such cases where the daughter in her illness returns to her mother, and is sup- ported and cared for during her sickness. The daughter's return, however, under such circumstances does not indicate that she had any intention of returning before the seduc- tion ; and, unless the mother is considered to have the legal right to require her daughter's service, it is difficult to see how she could be entitled, even under the American I'ule, to sue for the seduction in a case of that kind^. 1 This also follows from what has been said in § 2, supra. 2 Gray r. Durland, 51 N. Y. 424. 3 The mother's right of action in such eases is denied in South v. Denniston, 2 Watts, 474 (Penn.) ; Koberts v. Connelly, 14 Ala. 235. It is supported in Sargent v. , 5 Cowen, IOC (N. Y.). It is obvious that the rules of law as to cases like those stated must remain in un- certainty and conflict until the nature of the mother's authority is definitely settled. It is still more doubtful whether the mother of a 168 LAW OF TORTS, [PART II. The child is not entitled to sue for her own seduction, since she has consented to the act ; though if the seduction was efi'ected under a promise of marriage, which is after- wards broken, the young woman has a right of action. But the action is then for the breach of promise of marriage, and not for the seduction. For like reason the parent is barred if he consented to the act, or perhaps if he facili- tated it by his own misconduct in respect of the morals of his daughter. For example: The defendant is permitted by the plaintiff to visit his daughter as a suitor, after notice that he is a married man and a libertine ; the defendant, on inquiry by the plaintiff as to this matter, representing that his wife is an abandoned character, and that he will soon obtain a divorce from her, and then marry the plaintiff's daughter. The defendant afterwards, while continuing his visits at the plaintiff's house, seduces the young woman. The plaintiff is not entitled to recover for the seduction'. .§ 5. Of Guardian and Ward. Not only the parent, but anyone standing ' in loco parentis,' and receiving, to his own benefit, the services of a child, is entitled to maintain an action for loss of services against anyone who wrongfully interrupts the rendering of them, or makes the full rendering of them impossible. For example : The defendant seduces the plaintiff's niece, the parents of the young woman being dead, and the plaintiff standing 'in loco parentis.' The defendant is liable, though the young woman has pro- daughter not born in lawful wedlock could maintain an action in a case like that of the text. The mother would not be even guardian for nurture. See Eegina v. Clarke, 7 El. & B. 186; In re Ullee, 53 L. T. N. s. 711, af'd.' 54 L. T. n. s. 286, Ch. Div. ' Eeddie I'. Scoolt, Peake, 240. Comp. cases of criminal conversa- tion, p. 175. CHAP. Ill,] ENTICEMENT AND SEDUCTION. 1G9 perty left her l)y lier parents, and performs but slight services'. The right of action in all such cases, and in cases strictly of guardian and ward, depends (probably) upon the fact that the guardian or person standing ' in loco parentis' is receiving the services (however slight) to his own benefit. If the guardian have merely the supervision of the ward and her income, while she lives elsewhere, or performs service for herself, the guardian simply receiving her wages and acting as her trustee, it is improbable that he can sue for her seduction". On the whole, the only difference between the case of master and servant ex gratia on the one hand, and parent and child and guardian and ward on the other hand, appears to be that in the former case the services must be substantial, and the damages would (probably) be confined to actual loss suffered ; whilst in the other two cases the services may be nominal, such as might be presumed where persons so related live together "'*. § 6. Of Husband and Wife. To entice away one's wife is a civil wrong for which the offender is liable to the injured husband*. The gist of the action, however, is not, it seems, the loss of assistance, but the loss of the consortium of the wife, which term implies an exclusive right, against an invader, to her affection, 1 Manvell r. Thomson, 2 Car. & P. 303. And, as in the case of an action by the fathei', damages may be given beyond the value of the services. Irwin v. Dearman, 11 East, 23. - In early times the ward was the guardian's chattel. Lumley V. Gye, 2 El. & B. 216, 250, 257. ^ For this paragraph the author is indebted to his learned friend, Mr R. T. Wright. ■* In regard to the converse case, enticing away the husband, see Lynch v. Knight, 9 H. L, Cas. 577; Cooley, Torts, 267, 2nd ed. 170 . LAW OF TORTS. [PART II. companionship, and aid'. But in America it is held, not necessary that there should be any separation or pecuniary injury; in which respect the action resembles that of a parent for the seduction of his daughter. For example : The defendant, by false insinuations against the plaintiff, and other insidious wiles, so prejudices and poisons the mind of the plaintiff's wife against him, and so alienates her affections from him, as to induce her to desire and seek to obtain^ without just cause, a divorce ; and by his false insinuations and wiles succeeds in persuading the wife to refuse to recognize the plaintiff as her husband. The defendant is liable ; though no actual absence of the wife is caused ^. This example, it will be observed, does not go to the extent of declaring a joerson liable for enticing away or corrupting the affections of the wife by reason of charges against the husband which are true ; but there can be little doubt that such an act would be a breach of duty to the husband^. The constancy and affection of a wife are all the more valualale to him if his conduct is bad, since they may save him from ruin. A difference is deemed to exist, however, between the act of a parent and that of other persons with regard to persuading a wife to leave her husband. In the case of one not a parent, it is not necessary that bad motives should have inspired the act\ Such a person has no right to entice or persuade a wife to leave her husband. It does not follow, however, that mere advice to a married woman 1 See 3 Black. Com. 139, 140 ; Bigaouette v. Paulet, 134 Mass. 123. 2 Heermance v. James, 47 Barb. 120 (N. Y.). 3 See Bromley v. Wallace, 4 Esp. 237. The conduct of the hus- band could be shewn only in mitigation of damages. Id. i See Hutcheson v. Peck, 5 Johns. 196 (N. Y., Kent, C. J.); Bennett v. Smith, 21 Barb. 439 (N. Y.). CHAP, III.] ENTICEMENT AND SEDUCTION. 171 by a stranger to leave her husband, upon representations by the wife, would be unlawful ; advice in such a case is one thing, and enticement is another. In regard to a parent, however, it is considered that it is no breach of duty to the husband for such a person, upon information that his daughter is treated with cruelty by her husband or is subjected to other gross indignities such as would justify a separation, to go so far as to per- suade her to depart from her husband ; though it subse- quently appear that the parent's persuasion was based on wronsr information \ It is held that bad motives must have actuated the parent in order to make him liable". This seems to mean tliat the parent must either have enticed his daughter to leave or to stay away out of ill-will towards her husband, and not by reason of any good ground for their separation ; or that he must have some end to gain of personal benetit to himself. In the absence of facts of this character, the parent is not liable, according to American authority, for persuading his daughter to absent herself from her husband on information justifying (if true) a divorce or even a departure of her own motion ; though a stranger in blood would be liable. Any person who receives a married woman into his house, or suffers her to stay there after receiving notice from the husband not to harbour her, is deemed, presumpt- ively, to violate a duty which he owes to the husband''. But anyone may, notwithstanding such notice, harbour the wife out of humanity, on her representations of cruel treatment. For example : The defendant receives the plaintiff's wife into his house upon representations of ill- 1 Bennett v. Smith, 21 Barb. 439, 443 (N. Y.). - Hutcheson v. Peck, suin-a. ^ Wiusmore v. Greenbank, Willes, 577 ; s. c. L. C. Torts, 328. See Addison, Torts, 905 (4th ed.). 172 LAW OF TORTS. [PART II. treatment by her husband ; and he continues to permit her to remain there after notice from the plaintift" not to do so. The defendant is not guilty of a breach of duty to the plaintiif '. Liability for harbouring must (probably) be limited to cases in which the defendant has clear notice that the wife's act in coming to him, or in staying with him, is intended as a separation by her from her husband, and a repudiation of his claims as such. A man cannot at tlie present day be liable in damages for allowing a married woman to remain in his house a few days after notice not to do so, if she deny that she has abandoned her husband and claim that she is merely visiting, or that she is away from home for some other temporary and reasonable pur- pose. The defendant's liability, when it exists, rests upon the ground that he is a party to the unlawful purpose of depriving the plaintiff of the benetit of some advantage embraced under the designation of the consortium of his wife^ If the wife were disposed to stay an unreasonable length of time after notice from the husband, that fact would perhaps be sufficient to cause him to suspect her true purpose, and to render him liable in case he continued to permit her to remain. It is settled law in America that the mere fact of receiving another's wife is not unlawful, even though no explanation whatever be offered*. There must be an en- ticing or harbouring with reference to a wrongful separation. It is not enough even that the defendant take the plaintiff's wife to the defendant's house, upon request by her, unless ^ Philp V. Squire, Peake, 82. - Winsmore v. Greenbank, Willes, 577 ; Hutcheson v. Peck, 5 Johns. 196 (N. Y.); Schuneman r. Palmer, 4 Barb. 225 (N. Y.). ^ Barnes v. Allen, 1 Keyes, 390 (N. Y.) ; Schuneman v. Palmer, 4 Barb. 225 (N. Y.). See also Winsmore u. Greenbank, supra. CHAP. III.] ENTICEMEXT AND SEDUCTION. 17S he has notice that she is abandoning her husband ; thougli he has been required by the phiintiff not to harbour her. For example : The defendant and the plaintiff are farmers and neighbours, residing about two miles apart. Their wives are relatives, and the plaintiff's wife often visits the defendant's ; the defendant taking her to his house in his wagon. The plaintiff's wife on one occasion being so at the defendant's house, the plaintiff gives the defendant written notice not to harbour her, but to return her to his residence from which he (the defendant) has taken her. The defendant having stopped with the lady near her husband's house, she goes to enter it, l)ut finds the door locked, and returns to the defendant, requesting him to take her to his house. The defendant shews her the notice, and advises her not to go, but she makes light of the matter, and is taken to the defendant's house. The next day the defendant carries her home ; and the plaintiff brings suit for the harbouring. The action is not maintainable ; the defendant not having attempted to influence the wife to leave her husband'. So much for enticing away a man's wife. In regard to cases of criminal conversation with one's wife, an action was formerly given by the common law for this wrong", and still is given in America. This action was abolished by act of Parliament in the year 1857, and the redress turned over to the Divorce Courts The act permits the husband on a petition for dissolution of the marriage, or for judicial separation, or on a petition limited to such object only, to claim damages from anyone for committing adultery with his wife ; and the claim is to be tried in the 1 Schuneman r. Palmer, supra. - Weedon v. Timbrell, 5 T. E. 357; Harvey v. Watson, 7 Man. & G. 6U. 3 20 & 21 Vict. c. 85, §§ 33, 59. 174 LAW OF TORTS. [PART II. same way and subject to the same rules as actions for criminal conversation formerly'. It is necessary then to consider the old law to understand the new. The right of action for criminal conversation rested upon the same ground as that for enticing the wife away from her husband, to wit, the loss of consortium " ; and it arose accordingly without regard to the infliction of pe- cuniary damaged It follows that upon separation, by articles of agree- ment, the husband, having voluntarily parted with his wife s consortium, could not maintain an action for criminal conversation with his wife^. But if the separation was without any relinquishment by the husband of his right to the society of his wife, the action was maintainable. For example : The defendant, having entered into a contract for the support of the plaintift^'s wife at his (the defend- ant's) house, the wife goes there under the agreement, and the defendant seduces her. The act is a breach of duty to the plaintitf, for which the defendant is liable*. The mere fact of the husband's infidelity to his Avife does not change the nature of the defendant's act in seducing and debauching her ; though it may possibly, in contemplation of law, affect its enormity. For example : The defendant seduces and has criminal intercourse with the plaintiff's wife. Proof is offered by the defendant that the plaintiff' had shewn the greatest indifference and want of affection towards his wife ; that while she lay danger- ously ill at Y, the plaintiff' (a navy surgeon), though his vessel was at Y, and he landed almost daily, was often at 1 § 33. " Weedon v. TimbreU, 5 T. E. 857. 3 Wilton V. Webster, 7 Car. & P. 198. 4 Harvey v. Watson, 7 Man. & G. 644. ^ See Chambers r. Caulfield, 6 East, 244. Weedon v. TimbreU has been Hmited to this extent. CHAP. III.] ENTICEMENT AND SEDUCTION. 175 the door of the house where his wife lay sick, witliout visiting her", or shewing any anxiety or concern for lier ; and at the same time that he had been guilty of adultery and had con- tracted a venereal disease. This is no defence to the action ' ; thous;h it mif;ht be considered in mitiijation of damasfes'. If, however, the liusband was accessory to his own dis- honour, the case is different : he could not complain of an injury to which he had consented^. For example : The plaintiff allows liis wife to live as a prostitute, and the defendant then has intercourse with her. This is no breach of duty to the plaintiff*. Mere negligence as to the wife's behaviour, inattention, or dulness of apprehension, or even permission of indecent familiarity in the husband's presence, are, however, deemed insufficient to bar a recovery for criminal conversation with the wife ; though such facts might be proved in reduction of damages. Unless the conduct of the husband amount to consent to the defendant's act of intercourse, the defend- ant is liable'*. It follows from what has been said that condonation of the wife's offence does not excuse the man who debauched her : the sole consequence of the condonation is to preclude the husband from obtaining a divorce. For example : The defendant has criminal intercourse with the plaintiff's wife, and, when fatally sick, she discloses the fact to her husband. The plaintiff continues to care for her kindly until her death. The defendant is liable''. 1 Bromley v. Wallace, -i Esp. 237, overruling Wyndham v. Wy- combe, Id. 16. ^ Id. ^ ' Volenti non fit injuria.' ■* See Gibber v. Sloper, cited 4 T. E. 655; Hodges v. Windham, Peake, 39; Sanborn i'. Neilson, 4 N. H. 501. 5 2 Greenleaf, Evidence, §§ 51, 56 ; L. C. Torts, 338. But comp. p. 168, ante. 6 Wilton V. Webster, 7 Car. & P. 198. CHAPTER IV. TRESPASSES UPON PROPEPTY. § 1. Introductory. Statement of the duty. A owes to B the duty (1) to forbear to enter B's close without permission; (2) to forbear to take or interfere with possession of B's chattels, without permission ; unless, in either case, A has a better right than B to the possession of the property. 1. The term 'close' signifies a tract of land, whether physically enclosed or not. 2. 'Breaking and entering the close' is an ancient term of the law, now nearly gone out of use, indicating an unlawful entry upon land. ' The term ' entry ' or ' unlawful entry ' will be used in the present chapter as synonymous with ' breaking and entering ', unless the contrary be indi- cated. 3. A trespass to land is an unlawful entry upon land ; a trespass to goods is an unlawful taking or interfering with the possession of goods. All other wrongful acts con- nected with the trespass are aggravation of the trespass. § 2. Of Possession. In order to maintain an action solely for damages for a trespass to land, and not mei-ely for the recovery of the CHAP. IV.] TRESPASSES UPON PROPERTY. 177 land, it is necessary for the plaintiff to have had possession of the premises entered at the time of the entry. A person who enters the land of another without the latter's permis- sion, the latter having been previously unlawfully deprived of possession or the land having never been in liis possession, may, indeed, violate a duty to the person entitled to the possession ; but the law requires tlie latter to get posses- sion of the land before giving him damages for the wrong- committed. If, however, the party had possession at the time of the entry, and the trespasser ejected him, it would not be necessaiy for him to recover possession before he could sue for damages for the wrongful entry and expulsion ; he had possession at the time of the trespass and disseisin, and that is sufficient for the purposes of such an action. He could not, however, recover damages for the loss sustained by reason of the disseisor's occupancy, until after a re-entry, — a point to be further considered hereafter. On the other hand, possession at the time of the entry, if held under a claim of right, is prima facie sufficient in all cases to enable a person to maintain an action for an entry upon the land without permission ; and possession alone is not only prima facie but absolutely sufficient against all persons who have not a better right than the possessor. It follows that one who is in possession of land under a claim of title, though without right, may recover for an entry by a wrong-doer ; that is, by one who enters without a right to do so. For example : Th« defendant enters without per- mission upon land in the possession of the plaintiff, whose possession is under a void lease. The defendant is liable'. 1 Graham v. Peat, 1 East, 244. 'Any possession is a legal possession against a wrong-doer.' Lord Kenyon. See Cutts v. Spring, 15 Mass. 135 ; s. c. L. C. Torts, 341. B. T. 12 178 LAW OF TORTS. [PART II. But as above implied, the defendant is not necessarily guilty of breach of duty to such a possessor because he (de- fendant) does not own the land. He may still have a legal or an equitable interest in the premises; he may be a lessee of the land, or he may be a trustee of the same or the latter's cestui que trust. In any of these cases, he would be entitled to enter upon the premises, if he could do so without breaking the peace. Indeed, a licensee may have a right to make a peaceable entry, though he has no interest whatever in the soil, and could have no right of entry against a person entitled to the possession. For example : The defendant enters witliout permission premises of which the plaintiff is wrongfully in possession ; the act being done by direction of the owner of the land, who is entitled to possession. The defendant violates no duty to the plain- tiff' ; though the case would liave been different had he entered without authority of the owner ^. If there be two persons in a close, each asserting that the premises are his, and each doing some act in the assertion of the right of possession, he who has the better title or right is considered as being in possession ; and the other is a trespasser^. Tlie former is therefore (probably) in a position to demand damages of the latter for his wrongful entry. For example : The defendant is in possession of land without right, and so continues after the plaintiff, who is the owner, enters to take possession, ploughing the land. The defendant is guilty of trespass to the plaintiff\ Again : The defendant is in occupancy of land jointly with 1 Chambers r. Donaldson, 11 East, 65. ■^ The subject of rights of entry in general will be considered here- after, § 3. It is introduced here merely to shew tire consequences of possession. 3 See Reading v. Royston, 2 Salk. 423. ^ Butcher v. Butcher, 7 B. & C. 399. CHAP. IV.] TRESPASSES UPON PROPERTY. 179 the plaintiff, claiming to be a tenant in common of the premises with the plaintiff. His claim, however, is un- founded, and the plaintiff is owner of the close. The defendaiit may be treated by the plaintiff as a trespasser'. If neither of the parties in occupancy has a right to the close, the question whether either of them has violated a duty to the other, supposing each to claim possession, will turn upon the 'exclusive priority of possession'. The one who first entered, if he took exclusive possession, will be entitled to damages against the other ; if he did not so take, neither can recover against the other. For example : The defendants claim a right to take cranberries in an unoccupied field under a license from one H. The plain- tifis have previously entered into possession of the land, and forbidden all persons by public notice to take cran- berries therefrom, except on certain conditions with which the defendants do not comply. H, under whom the defend- ants claim, had entered before the entry of the plaintiffs; but neither H, nor the defendants, nor the plaintiffs, have any right to the soil or the berries ; and neither ever had exclusive possession. The defendants have (probably) vio- lated no duty to the plaintiffs'; and so e converso^. There is this important distinction between the law relating to possession of real property and that relating to possession of personalty : to enable a plaintiff" to I'ecover for trespass to realty, he must have had a possession in fact ; while a plaintiff" may recover for trespass to personalty if he had a right to possession. To assimilate the two cases, it is often said that the right to possession of personalty draws possession in law. Whoever then has a right of possession of a chattel, whether it be towards all the world or only towards the defendant, is in a position to sue for an 1 Huntmg V. Eussell, 2 Cush. 145 (Mass.). 2 Barnstable v. Thacher, 3 Met. 239 (Mass.). 3 id. 12—2 180 LAW OF TORTS. [PART II. interruption of his enjoyment thereof. For example : The defendant, without permission, takes goods out of the possession of A, after A has sold them to the plaintiff, but before they have been delivered to him. This is a breach of duty to the plaintiff'. It may be remarked in this connection that by the common-law rules of pleading, the plaintiff' in an action either of trespass or trover, always alleged that the property was his. But this allegation was deemed to be fultilled by evidence that he came into possession of the goods in a lawful manner. Evidence that the plaintiff had got hold of the property by theft, violence, or other wrongful act, without title or right, would not support the allegation of property ; and it follows that such a person could not claim that interfering with his supposed possession would be a breach of duty'. The same is of course true still. What constitutes possession in fact, however, as dis- tinguished from a right of possession, is one of the difficult questions of the law, especially when it comes to the appli- cation of definition to particular cases. Contact certainly is not necessary ; it is enough so far as that is concerned, that no one is opposing possession and that the power to take the property into hand exists. That conception of the term which on the whole most nearly harmonizes with the authorities on specific situations appears to be this: (1) a power of control over property, and (2) a purpose to exer- cise the same for the benefit, at the time, of the holder, or facts from which such a purpose could be assumed if the mind were directed to the object of possession. It is clear that without these two facts there is no true possession in the eye of the law ; but to say that there is possession in all cases with them would be to say that 1 Bacons's Abr. Trespass C. 2 ; L. C. Torts, 370. - Buckley v. Gross, S Best & S. 566. See post, pp. 202. CHAP. IV.] TRESPASSES UPON PROPERTY. 181 the authorities are in harmony. A mere servant may have ' detention ' or custody, but as servant can have no possession, according to current views, because a servant does not hold in his own right'; but what of an agent ^, or a bailee for hire, or a tenant at wilH The authorities are not agreed. It is often said that none of them has possession. Thus, some say of tenants at will that both tenant and landlord cannot be in possession at the same time, and the landlord certainly is possessed. Others treat both as having the rights of possessors 3 and this appears to be the more just view^ A reversioner or remainder-man can maintain an action for injuries done to his interest, notwithstanding the fact that the land is in the possession of a tenant. Injuries done to such interests are not, however, in strictness of common-law ideas, trespasses. The trespass consists in the wrongful entry upon the land, and this is a tort to the tenant, and not to the landlord or remainder-man ; since it is an interference with the possession, which belongs to the tenant. For example : The defendant enters upon the plaintiff's land, held by a tenant, in the assertion of a right of way, driving thereon his horses and cart, and continuing so to do after notice from the plaintiff to quit. The defendant has violated no duty to the plaintifi■^ J Year Book, 13 Edw. IV, 9, 10, pi. 5 ; 21 Hen. VII, 14, pi. 21 ; Harris v. Smith, 3 Serg. & E. 20 (Penn.) ; Hampton v. Brown, 13 Ired. 18 (North Carolina). These are all common-law authorities; Inrt the point is not free from doubt. See Holmes, Common Law, 226—228 ; Moore v. Robinson, 2 B. & Ad. 817 ; Mathews v. Hursell, 1 E. D. Smith, 393 (N. Y.). - See Knight v. Legh, 4 Bing. 5i^9, Best, G. J. holding that an agent might bring trover, as having possession. ^ See Starr v. Jackson, 11 Mass. 519, where the cases are reviewed; and see Markby, Elements of Law, § 388, 3rd ed. ■* Baxter v. Taylor, 4 B. & Ad. 72. The action was ' case'. 182 LAW OF TORTS. [PART II. Damage done to the inheritance in the case of leasehold or mortgaged land is waste if committed by the tenant or mortgagor, and a tort which may be deemed to be in the nature of a trespass, if committed by a stranger. But whatever term may be applied to the act, it is a breach of duty to the landlord or mortgagee, for which he is entitled to recover damages. For example : The defendant, a tenant, or a mortgagor, or a licensee, or a stranger, cuts down trees on land owned by the plaintiff, or of which he is mortgagee or remainder-man, without the plaintiff's con- sent. This is a breach of duty to the plaintiff, and the defendant is liable to him in damages ; though the plaintiff is not in possession'. A similar rule of law prevails in regard to injuries done to personal property, held on lease or on pledge, or by a mortgagor in possession. For an injury done to the pos- sessor's interest merely, that is, for a simple unlawful taking of the goods, the remedy belongs to the possessor alone ; but for an injury done to the reversion, or to the mortgagee if the goods be mortgaged, the landlord or the mortgagee is entitled to treat the act as a breach of duty to him and call for redress ^ For example : The defendant levies on and sells goods in the possession of S, whose right to the possession rests upon an agreement by the plaintiff to convey the same to liim upon the payment of notes given therefor. The defendant has not been led by the plaintiff to suppose that the goods belong to S ; on the contrary, the defendant has notice at tlie time of the levy ^ See Young v. Spencer, 10 B. & C. 145 ; Page v. Robinson, 10 Gush. 99 (Mass.) ; Cole v. Stewart, 10 Cush. 181. None of these are cases of actions by remainder-men, but they cover sucli cases in principle. The form of action at common law is ' case ' and not trespass. - In 'case', or trover, at common law. See Farrant v. Thompson, 5 B. & Aid. 828, where trover was brought. CHAP. IV.] TRESPASSES UPON PROPERTY. 183 of the plaintiff's title. The defendant's act in disposing of the goods is a breach of duty to the plaintiff, and he is liable in damages; though the right of possession is in S'. A man's close includes, at least according to American law, not only his actually enclosed land, but also all ad- joining unenclosed lands held by him ; and, if he be in possession of any part of his premises, he is in possession of the whole, unless other parts be occupied by tenants or by persons who claim adversely to him. The owner has the ' power of control ' and the ' purpose to exercise the same ' for himself; he is therefore in a proper position to re- cover damages for trespasses committed in any part of his premises, the unenclosed as well as the enclosed". For example : The defendant, without permission, enters and cuts timber in an open woodland of the plaintiff, adjoining a farm upon which the plaintiff" resides. The plaintiff is in possession of the woodland, and is entitled to recover^. The foregoing proposition in regard to possession of adjoining unenclosed land supposes that the party injured has a right to the possession of the enclosed premises actually occupied by him. One, however, who is in posses- sion of land without title or right can (probably) have no such extended possession ; the rights of a bare possessor are limited by the bounds of his immediate occupation and 1 Ayer v. Bartlett, 9 Pick. 156 (Mass.). 2 Such possession is often called 'constructive', but that term, like the term 'symbolical' possession, is apt to darken counsel. Possession is surely real when one's control can be extended over the property at any time. See Markby, Elements of Law, §§ 353, 35'.), 360, 3rd ed. 3 Machin v. Geortner, 14 Wend. 239 (N. Y.); Penn v. Preston, 2 Rawle, 1-4 (Penn.). 'I hold that there is no usage of the country, nor rule of the common law, nor any reason requiring a man to enclose his timber laud, and that for any possible purpose that can be named the woods belonging to a farm are as well protected by the law without a fence as with one.' Tod, J. in Penn v. Preston. 184 LAW OF TORTS. [PART II. •control. For example : The defendant, having wrongful possession of the south end of a lot, cuts timber upon the north end thereof, lying without the limits of his actual occupation ; which timber has been purchased and duly marked by the plaintiff^. The land on whicli the timber stood is not in the possession of the defendant, and the plaintiff is entitled to damages for the violation of his right of property ; though he has no right to the land '. Again : The defendant, without riglit or authority, enters upon an open woodland adjoining enclosed land in the wrongful possession of the plaintifF. The act is no breach of duty to the plaintift"'. One of several co-tenants, whether of real or of personal property, cannot maintain an action for acts relating to the common property, not amounting to an ouster ; because all the co-tenants have equal rights of possession and property. For example : The defendant, co-tenant of land with the plaintifl', cuts and carries away therefrom timber, at the same time denying to the plaintiff any right in the premises, but not withholding possession from him. The defendant has violated no duty to the plaintiff^. If, in the case of real estate, the act of the defendant, liowever, amount to an ouster of the plaintiff from the possession of the common property, the act is a trespass, and the defendant is liable; provided, at least, an action of ejectment would at common law be maintainable. For example : The defendant, being co-tenant with the plaintiff of a certain room in a coffee-house, expels therefrom tlie 1 Buck V. Aiken, 1 Wend. 460 (N. Y.). The plaintiff became possessed of the trees as soon as they wei-e cut down by the defendant. ^ It is difficuh to find judicial authority for this examiDle, because, perhaps, of its simphcity. Its correctness is clear. ^ Filbert v. Hofl', 42 Penu. St. 97, following Reading's Case, 1 Salk. 392. CHAP. IV.] TRESPASSES UPON PROPERTY. 185 plaintiff's servant, in dei'Ogation of the plaintiff's right of occupation. Tlie defendant is liable to the plaintiff in damages ; since an action of ejectment for restoration to possession would lie'. Wliatever amounts to, or if persisted in might amount to, an effectual i^rivation of the associate tenant of parti- cipation in the possession of the common property amovnits to an ouster, even though there be no actual expulsion or withholding of possession from him. For example : The defendant, co-tenant witli the plaintiff of a certain close, digs up the turf and carries it away, without the plaintiff's consent. This is an ouster, for which the defendant is liable to the plaintiff in damages ; since, if tlie cotenant were permitted to take the turf, he would be entitled to dig away the soil below the turf, and might thus effectually deprive his fellow of his right to the possession^. If the criterion of this remedy between co-tenants for an ouster be the question whether an ejectment would be maintainable, it follows that an action for trespass in respect of goods held in common cannot be maintained by one cotenant against another ; for an action of ejectment lies for the recovery of land only. Nor, indeed, is there any authority in opposition to this deduction ; the question of the right of action having, so far as the reported authorities go, always arisen in regard to common rights in 1 Murray v. Hall, 7 C. B. Ul ; s. c. L. C. Torts, 343. Ejectment was originally an action of trespass, and was always deemed to include trespass. Hence, if that form of remedy may be used, trespass lies. This is the reasoninfr ; but it is difficult to see how ejectment could be allowed a co-tenant. - Wilkinson v. Haygarth, 12 Q. B. 837. The defendant would not liave been liable to an action for trespass for taking and carrying away the growing grass or crops. Id. Accounting between co-tenants was provided for by 4 Anne, c. 16, § 27, where one co-tenant has taken more than his share of the profits. 186 LAW OF TORTS. [PART II. realty'. Some decisions in America have denied the remedy even when resorted to in cases of real property^. In respect of personal property, however, it will be seen in the next chapter that an action for the conversion of the common chattel can be maintained in certain cases. The difficulty thus relates more to the form of action than to the substance of things. It may therefore be laid down, that for one tenant in common of personal property to withhold possession of the chattel from his associate, or to expel him from participation in the possession, or to ap- propriate to himself more than his share of the profits arising from the property, is a breach of legal duty to the latter, for which the law gives redress^. It has been observed that, in order to maintain an action for trespass to land, possession of the land at the time of the wrongful entry is necessary. But the law does not allow a person who has wrongfully entered, to take and enjoy the profits of the close, or to commit depredations upon the premises during his occupancy, without a reckon- ing. If the owner or person entitled to the possession subsequently olitain possession of the close, the law treats him, by the fiction of relation, as having been in possession during all the time that has elapsed since he was ejected from the premises. The consequence is, that upon his re-entry he becomes entitled to sue for the damage which he has sustained at ^ See the cases cited in L. C. Torts, pp. 358—360. - Wait V. Richardson, 33 Vermont, 190. See also Bennet v. Bullock, 35 Penn. St. 364, 367. •* The difficulty in the way of an action for trespass is that the defendant, tenant in common, had a right of possession, and that is inconsistent with that action. But in an action for the conversion of a chattel, it matters not that the defendant had a right of possession. The gist of such an action is not (as it is in trespass) the wrongful taking possession, but the conversion of the plaintiff's right. CHAP, IV.] TRESPASSES UPON PROPERTY. 187 the hands of the party who has usurped the possession. The remedy thus allowed is called an action for mesne profits; that is, for the value of the premises during the period in which the plaintiff lias been kept out of possession by the defendant. The plaintiff is also entitled to recover for all wrongful entries upon and damages done to his property in the mean time'. For example : The defendant enters upon premises of the plaintiff, of which the plaintiff has been disseised, and removes buildings therefrom. The plaintiff subsequently re-enters, and then brings suit for damages done to his property. He is entitled to recover'. There is conflict of authority in regard to the existence in the disseisee of a right of action for mesne profits against one who, before the plaintift^'s entry, had succeeded the disseisor by descent or purchase; that is, in the language of the law, against a stranger. On the one hand, it is said that to take a supposed title from another cannot be a ti'espass, and therefore mesne profits arising during the latter's occupation cannot be recovered of him^. On the other hand, the apparent injustice of this doctrine, towards the owner, has been urged, and the contrary conclusion reached \ Between the extremes of these rulings, however, 1 Liford's Case, 11 Coke, 46, 51. As to cases between landlord and tenant see 15 & 16 Vict. c. 76, § 214 ; Smith v. Tett, 9 Ex. 307 ; Doe V. Harlow, 12 Ad. & E. 40 ; Doe v. Challis, 17 Q. B. 166 ; Pearse r. Coker, L. R. 4 Ex. 92. Mesne profits may now be liad in a suit to recover the land. - Dewey v. Osborn, 4 Cowen, 329 (N. Y.). This case shews also that the party on re-entry is in a position to sue for every entry upon his lands made without authority. 3 Liford's Case, 11 Coke, 46, 51 ; Barnett r. Guildford, 11 Ex. Ill, 30; Case v. De Goes, 3 Caines 261, 263 (N, Y.) ; Van Brunt v. Schenck^ 10 Johns. 377, 385 (N. Y.) ; Dewey v. Osborn, 4 Cowen, 329, 338. ^ Holcomb V. Rawlyns, 2 Cro. Eliz. 540 (decided before Liford's- Case) ; s. c. L. C. Torts, 363 ; Morgan v. Varick, 8 Wend. 587 (N. Y.). 188 LAW OF TORTS. [PART II. there is an important class of cases in America, in regard to wliich tliere is little conflict. These are cases in which the defendant claims under one who has been let into possession under legal process. In cases of this kind, it has been held that the defendant is not liable for mesne profits ; and it seems just, as well as conformable to the doctrine of trespass upon lands, that one who has obtained possession under the disseisor by process of law should be presumed by third persons to be rightfully possessed while the process (and the possession by virtue of it) continues in force. For example : The defendant enters and occupies land of the plaintiff" under a writ of possession, executed against one who had wrongfully disseised the plaintifT. The writ is afterwards set aside, and the plaintiff" resumes possession. The defendant is not liable for the profits consumed during his occupancy'. Again : The defendant enters and takes possession of the plaintiff''s land under a license from one who has l^een put into possession against a wrong-doer under a writ of resti- tution, which writ is afterwards quashed. The defendant is not liable for the mesne profits". It would seem also that purchasers, tliird persons, under judicial sales, should stand in a like situation; for, though they do not acquire title from parties let into possession under legal process, they take through the sheriff, who may reasonably be presumed to have authority to sell. And there is judicial authority for this view^ It would (prob- ably) be otherwise if the purchaser should be the person who had instituted the invalid proceedings under which he was let into possession ^ 1 Bacon v. Sheppard, 6 Halst. 197 (N. J.), following Menvil's Case, 13 Coke, 19, 21. - Case V. De Goes, 3 Caines, 261 (N. Y.), following Menvil's Case. ■' Dabney v. Manning, 3 Ohio, 321. ■» See further L. C. Torts, 362-366. CHAP. IV.] TRESPASSES UPON PROPERTY. 189 Tlie non-liability of the purchaser or heir extends, how- ever, only to profits consumed by him. If such person sow the land, or cut down trees, or grass, or crops, and sever and carry them away, or sell them to another, the disseisee,, after regress, may take the things severed wherever he can find them, or, if he cannot find them, recover their value of the person lately in possession. The regress of the disseisee has relation to the beginning of the last occupation, and the title to the things severed is therefore in him, which title the carrying away and disposing of do not divest \ § 3. Of what constitutes a Trespass to Property. The gist of an action for trespass to land consists in the wrongful entry upon it. And any entry upon land in the rightful possession of another, without license or permission, is a breach of duty to the possessor; and this too though the land be unenclosed. It follows that an action is maintain- able for such an entiy, though it be attended with no damage to the possessor. For example : The defendant without permission enters upon unenclosed land in the lawful possession of the plaintiff, with a surveyor and chain carriers, and actually surveys part of it, but without doing any damage. The act is a breach of duty to the plaintiff, and the defendant is liable at least to nominal damages". The act is a breach of duty (though not in strict technical sense a trespass) even if the close entered be a private way, if only the plaintiff has a right of passage 1 See Liford's Case, supra. But of course if the owner take away the things severed, the defendant can recoup their value in trespass for the mesne profits. Id. - Dougherty v. Stepp, 1 Dev. & B. 371 (North Carolina) ; Hobson V. Todd, 4 T. E. 71, 74. Buller, J.: 'The right has been injured.' Should the defendant repeat the offence, he may be made to smart for it in damages. Williams v. Esling, 4 Barr, 486 (Penn.). 190 LAW OF TORTS. [PART II. along or across it ; it matters not that the plaintiff has no right to the soil'. For example: The defendant deposits articles at various times in a passage-way to the use of which he has no riglit, and the plaintiff has a right, though the ownership of the soil is in another. The defendant is liable ; though he removes the articles in every instance before the plaintiff desires to pass out, and never in fact hinders the plaintiff in entering or in going out of the passage^. A close is deemed to have been broken and entered even though the act was not in fact committed within it, but only against its bounds. To bring anything against such Ijounds without permission is a trespass. For example : The defendant, without permission, di'ives nails into the outer wall of the plaintiff's building, which stands upon the line of the plaintiff's premises. This is a breach of duty, for which the defendant is liable in damages^. Again : The defendant heaps up dirt close to the plaintiff's boundary wall, and the dirt, of itself, falls against the wall. This is a trespass*. An entry upon land, or a taking of goods, is justifiable when effected eitlier (1) by licen.se or consent of the party or (2) by license of the law, a license being a mere permission to do what otherwise would be unlawful. It does not create a property right. The term 'license or consent of the party', as here used, has reference to an express consent, either in answer to a request for permission, or by specific or general invitation by the possessor^. Cases of this kind sufficiently explain themselves, and need not be dwelt upon. The term 1 Tlie action under the old system was ' case ', not trespass. See p. 197, (;^). - Williams v. Esling, i Barr, 486 (Penn.) ; s. c. L. C. Torts, 371. ^ Lawrence r. Obee, 1 Stark. 22. •1 Gregory v. Piper, 9 B. & C. 591. ^ E.g. a shopkeeper. CHAP. IV.] TRESPASSES UPON PROPERTY. 191 ' license of the law ', as here used, includes all other cases in which the entry or taking possession was lawful. In cases of the first kind the license is revocable in respect of future acts, though it be made by contract, unless it is ' coupled with an interest'; the licensor may be liable for breach of contract, and yet revoke the license, so as to take away the licensee's permission'. A license is 'coupled witli an interest' when it comprises or is connected with a grant". The second kind needs some special explanation. The law licenses an entry upon the land of another, or the tak- ing possession of another's goods, in many cases ; and in these the license cannot be revoked by the party affected. The first in importance of these cases is where the law has commanded the entry or tlie taking possession ; the entry and levy of a sheriff" by virtue of a valid precept being a good example. A second case is where an entry is made into an inn, or into the coach of a common carrier of passengers. Such an entry is lawful if the party be in a fit condition to be received, paying in advance when required. A third case is where the party in possession of land has bound himself by debt to another, without any stipula- tion in regard to the place of payment. In such a case, the creditor is allowed by law to enter his premises for the purpose of' demanding payment ^ A fourth of these cases is where the party in possession holds as tenant a piece of real property of another. In such a case, the law allows the latter to make an entry upon the land for the purpose of ascertaining whether his 1 Wood V. Leadbitter, 13 M. & W. 838 ; Hyde v. Graham, 1 H. & C. .593. But the licensee may sometimes be entitled to an injunction against the revocation. Frogley v. Lovelace, Johns. 333. - Wood ■;;. Leadbitter, supra, at p. 844. » 3 Black. Com. 212. 192 LAW OF TORTS. [PART II. interests are properly regarded by the possessor. For example : The defendant leases land to the plaintiff", and subsequently enters to see if the latter has committed waste. This is no l^reach of duty to the plaintiff"'. A fifth case is where goods have been placed upon a man's land under a tenancy at will, or, it seems, where goods have been sold which lie upon the premises of the vendor. In the absence of any special agreement or general custom concerning the delivery of the goods, the owner may go upon the premises and take them ". For example : The plaintiff lets premises to the defendant at will, on the terms that the defendant shall have reasonable time to remove his goods, after notice to quit. The defendant enters accordingly after termination of the lease, to get his goods, against the plaintiff"'s refusal to allow him. This is no breach of duty^. A sixth case is where the owner of land has wrongfully burdened another with the possession of his (the former's) goods. In such a case, the goods may be taken and put upon the owner's premises ; and neither the taking of the goods nor the entry upon the owner's premises is unlawful. For example : The defendant takes an iron bar and sledge belonging to the plaintiff', and puts them upon the plaintiff's land ; the plaintiff" having first brought them upon the de- fendant's premises, and then, without permission, ha\'ing left them there. The entry is lawfuP. A seventh case is where a man's goods, without his act, have got upon the land of another. In such a case, 1 3 Black. Com. 212. 2 Cornish v. Stubbs, L. R. 5 C. P. 334 ; Mellor v. Watkius, L. R. 9 Q. B. 400 ; McLeod v. Jones, 105 Mass. 403 (sale of goods on vendor's land). 3 Cornish v. Stubbs, supra. * Cole V. Maundy, Viner's Abr. Trespass, 516. CHAP. IV.] TRESPASSES UPON PROPERTY. 19 o the owner of the goods may enter and take them. For example : The defendant enters upon the plaintifi''s land to get apples, which, )jy the action of the wind, have fallen from the defendant's trees into the plaintiff's close. The defendant is not liable \ Again: The defendant enters upon the plaintiff's land to get his own goods which the plaintifi" has wrongfully taken and put there.- This is lawful " ; though it would have been otherwise had the plaintiff come properly into possession of the goods ^ An eighth case is where a person enters the premises of another to save life or to succour a beast in danger. Svich an act is not a trespass ; but it is said that the case would be different if the entry was made to prevent a person from stealing the owner's beast, or to prevent cattle from consuming his corn*. The distinction made between the cases is that in the former case the loss of the animal would be irremediable, that is, that particular animal (which might be very valuable) could not be re- placed ; while in the latter case, the animal might be re- covered from the thief, or the corn replaced by purchase or by a new crop ; all corn being substantially alike. The distinction, however, sounds medijeval. A ninth case is where the plaintiff brings or suffers a nuisance upon his premises, to the peculiar injury of his neighbour. In a case like this, the latter may enter and abate the nuisance. For example : The defendant enters upon the plaintiff's premises, and removes the eaves of a shed, which overhang the defendant's land and in rainy 1 Millen v. Fawdry, Latch, 119, 120. It would be otherwise if the defendant should shake the trees. Bacon's Abr. Trespass, F, - Viner's Abr. Trespass, 1 (A) ; L. C. Torts, 882. 3 L. C. Torts, 381. •* Bacon, ut supra. B. T. 13 194 LAW OF TORTS. [PART II. weather drip upon his premises. This is no breach of duty to the plaintiff'. A tenth case is where an entry has been made upon land of another by reason of necessity, without the fault of the person entering. Such an entry is justifiable. For example : The defendant runs into the plaintiff's premises to escape a savage animal, or the assault of a man in pursuit of him. The defendant is not liable ^ Again : The defendant enters upon the plaintiff's premises to pass by a portion of the highway which at this point is wholly flooded, but without the act of the defendant. The entry is justifiable^. In all the foregoing cases, and others might be added to them, the entry must have been peaceably made, and without doing unnecessary damage, and any damage done should (probably) be paid for or repaired \ It has already been seen that a trespass to property consists in an unlawful entry of land or taking of goods, and a trespass by imprisonment in an unlawful arrest. There is one case, however, in which, by reason of subse- quent acts, a person may be treated as a trespasser not- withstanding the lawfulness of the entry or taking posses- sion, or of the arrest ; the result thus being to deprive the party of the justification of the lawfulness of the original act, and, by a fiction of law, to make him a trespasser ab initio. According to this fiction, one who has taken pos- session of goods, or entered upon land by virtue of a license of the law, becomes a trespasser ab initio (notwithstanding the lawfulness of the levy or entry), if he afterwards, while 1 Penruddock's Case, 5 Coke, 100 b; L. C. Torts, 383, where various distinctions as to such cases are mentioned. 2 Year Book, 37 Hen. VI, p. 37, pi. 26. s Absor V. French, 2 Show. 28. 4 See Chambers v. Bedell, 2 Watts & S. 225 (Peun,). CHAP. IV.] TRESPASSES UPON PROPERTY. 195 acting under the license, commit an act which in itself amounts to a trespass '. For example : The defendant, a sheriff, remains an unreasonable length of time in the plaintiff's house in possession of goods taken by him in execution. He is a trespasser ab initio I But, in order to become a trespasser ab initio, the sub- sequent act must, it has been held, be a technical tres- pass : if it be not, the party is not to be treated as a trespasser from the beginning, though the act committed be wrongful and subject him to liability. For example : The defendant, an officer, enters upon the plaintiff's pre- mises by virtue of a lawful writ, to make a levy for debt. While there, in the course of his business as an officer, he wrongfully extoi^ts money from the plaintiff. He is not a trespasser from the beginning of his entry, though the extortion was a breach of duty for which he would be lia- ble in damages; extortion not being a trespass ^ Again: The defendant refuses to deliver up a distress on the plaintifi"'s goods upon due tender by the plaintiff of the rent due. The defendant is not a trespasser'*. These examples, on examination, will shew the impor- tance of the doctrine of trespass ab initio. If the person's conduct make him obnoxious to this doctrine, it follows (probably) that all acts done, such as, in the case of an officer, levies made, intermediate the entiy and the tres- pass, are void ; since, his entry being a trespass, he could not, according to general principles of law, thereafter do an act against the will of the occupant which would be legaP. Besides, he would be liable for the entry as well as 1 Six Carpenters' Case, 8 Coke, 146 ; L. C. Torts, 386. '- Ash V. Dawnay, 8 Ex. 237. 3 Shorland v. Govett, 5 B. & C. 485. See Six Carpenters' Case, supra. But compare Holley v. Mix, 3 Wend. 350 (N. Y.). * West V. Nibbs, 4 C. B. 172. ^ Compare Ilsley v. Nichols, 12 Pick. 270 (Mass.), denying certain 13—2 196 LAW OF TORTS. [PART II. the after-acts. The doctrine does not, therefoi'e, concern the form of remedy alone. This doctrine of trespass ab initio applies, however, only against persons who have entered or taken goods by license of law. A person cannot treat as a trespasser from the beginning one to whom he has himself given permission to enter or take his goods, whatever be the nature of his sub- sequent acts \ For example : The defendant, by permis- sion of the plaintiff's wife, enters the plaintiff's house in his absence, and while there wrongfully gets possession of papers, and carries them away. This does not make him a trespasser ab initio". As the subsequent act must, it seems, amount to a trespass, it becomes necessary to ascertain somewhat pre- cisely the technical signification of the term. It is difficult to define a trespass, but the following will serve to indicate the proper meaning of the term : (1) Any wrongful con- tact with the plaintiff's person is a trespass. (2) Any wrongful entry upon the plaintiffs land or interference with the plaintiff's possession of personalty is a trespass. (3) Any wrongful act committed directly with force is a trespass, though no physical contact with the person of the plaintiff or with his property be produced ; as in the case of an imprisonment without contact, or the firing a gun early dicta. Ilsley i'. Nichols decides that a levy made by breaking open the outer door of an occuijied dwelling-house (a house is a man's castle) is invalid, and the officer is liable for the value of the goods taken as well as for the unlawful entry. The same result should in principle follow if, by an act subsequent to the entry, he become a trespasser from the beginning. The doctrine of trespass ab initio is put upon the ground that the subsequent act indicatps a prior purpose to commit a trespass. Six Carpenters' Case, supra. But this is a fiction and not very satisfactory. 1 Six Carpenters' Case, supra. 2 Allen V. Crofoot, 5 Wend. 506 (N. Y.). CHAP. IV.] TRESPASSES UPON PROPERTY. 197 under the plaintiff's window, to alarm the inmates of his house. In cases like these, force is said to he implied. Upon the same ground, the seduction of the plaintiff's wife, daughter, or servant miojht be considered as a tres- pass, and the act has sometimes been so treated by the courts ' : the consent given was not the plaintiff's consent. But the later view is different^. On the other hand, (1) a mere non-feasance (that is, a pure omission) cannot be a trespass^; (2) nor can there be a trespass wliere the matter affected was not tangible, and hence could not be immediately injured by force, as in the case of an injuiy to reputation or health ; (3) nor can there be a proper trespass where the right affected is incorporeal, as a right of common or way ; (4) nor where the interest injured exists in reversion or remainder, and is not in possession ; (5) nor where there is no right of action immediate upon the act in question''. Lastly, to constitute a trespass to property, the tiling affected must, though tangible, be capable of ownership as property. Wild animals, untamed, are deemed property only while in the actual or constructive possession of the keeper : upon effectual and final escape, they cease to be property, and may be killed, or taken and retained by any one, at least if he is not aware of the prior ownership. And a wild, savage animal straying at large may be killed, though the owner be known to be in pursuit'. 1 Tullidge V. Wade, 3 Wils. 18 ; 1 Chitty, Pleading, 126, 133. 2 Macfadzen v. Olivant, 6 East, 387. Chitty, however, prefers the old doctrine. 1 Pleading, 133. 3 Six Carpenters' Case, 8 Coke, 146. ^ See 1 Chitty, Pleading, 166. But quaere whether the effect of the rule of trespass ab initio might not be had in some of these cases, as in the third and fourth. 5 2 Kent, Com. 348, 349. See post, p. 269, note 1. CHAPTER V. CONVERSION. § 1. Introductory. Statement of the duty. A owes B the duty to forbear to exercise dominion (1) over B's general property in per- sonal chattels ; and (2) over B's special property in the like things. 1 . By ' general property ' is commonly meant the ownership of property, subject, it may be, to a right of possession for a time in another. 2. By 'special property' is meant a right of possession only. 3. By ' bare possession ' merely is commonly meant a mere custody ('detention'), or a possession unlawfully obtained. 4. The action for converting property was formerly and is sometimes still called 'trover', a term meaning 'to find', which was used in the old precedents of declaration; the plaintift", by a fiction, alleging that he had lost and the defendant had found and converted to his own use the chattel in question'. 5. The action of ' trover ' is an action to recover (not 1 The allegation was at first probably real, arising perhaps from the common action for stravs. See L. C. Torts, 422. CHAP, v.] CONVERSION. 199 specific articles, but) damages for the conversion of chattels personal, or movable goods, to the value of the interest converted. 6. By an ' act of dominion ' is meant an act tantamount to an exercise of ownership. 7. The action of detinue is not much used in modern times. Its object is to recover chattels in specie, or damages for their non-return if they cannot be had. It has been superseded largely by trover. 8. As in trespass, so in trover and in detinue, the thins alleged to have been converted must be capable of ownership as property'. § 2. Of Possessiox. The possession of a chattel personal, that is, of a mov- able article, or the right of possession thereof, is necessary to support an action for conversion, just as it is to support an action for trespass. The plaintiff" fails in trover if it appear that lie lias never acquired a right of possession, or if he has, that he has parted with it, and has not before suit become reinvested with the same. For example : The plaintiff" is the purchaser of goods, which, however, remain in the seller's possession subject to a lien for the purchase price. The defendant, without authority, removes the goods from the sellei''s possession, doing no permanent injury to them. This is no breach of duty to the plaintiff"". Again : The defendant, a sheriff", wrongfully levies upon goods of the plaintiff" in the hands of a lessee of the pi'operty, and carries the goods away. The plaintiff" cannot treat the act as a conversion, though the tenant could, since the plaintiff" was not entitled to the possession of the property^. 1 See aute, p. 197. " Lord r. Price, L. B. 9 Ex. 54. 3 Gordon v. Hari^er, 7 T. K. 9. See Farrant v. Thompson, 5 B. & Aid. 826 ; ante, p. 182. 200 LAW OF TORTS. [PART II. On tlie other hand, the right of possession of the chattels is sufficient to enable the general owner to sue for a conver- sion thereof, though he may not have the actual possession at the time of the wrongful act ; because, as was stated in the preceding chapter, the right of possession of goods draws the possession, in contemplation of law. For example : The defendant buys a chattel belonging to the plaintiff from A, who had no right to sell it. The plaintiff, being the owner, is deemed to have been in possession of the chattel at the time of the conversion by the defendant'. A person having the special property of goods in his rightful possession can maintain an action for conversion against all persons who may wrongfully exercise dominion over them, though the act be done by command of the owner of the goods. For example : The defendant takes a horse out of the possession of the plaintiff, the plaintiff having a lien upon the animal. The defendant acts by direction of the owner, but without other authority. He is liable for conversion of the horsed It follows that a person in the rightful possession (actual or legal) of goods, in which he has a special property, may maintain an action against the owner himself for any un- permitted disturbance or refusal of his possession ; since, if the owner cannot give an authority to another to take the goods, he cannot take them himself. For example : The defendant, owner of a title-deed, in the possession of the plaintiff under a temporary right to hold it, takes it by permission of the plaintiff for a particular purpose, and tlien, during the continuance of the plaintiff's right to hold 1 Hyde v. Noble, 13 N. H. 494 ; Clark v. Rideout, 39 N. H. 238 ; Carter v. Kingman, 103 Mass. 517. 2 See Outcalt v. Durling, 1 Dutch. 443 (N. J.). The form of action in this case was tresjiass, but it might as well have been trover. The injured party could sue iu either form in such cases. CHAP, v.] CONVERSION. 201 it, refuses to redeliver it. Tlie defendant has violated his duty to the plaintiff, and is liable for conversion \ One who has but a possession of chattels, though with- out a rig] it to hold them against the owner, is also protected against all persons having neither a right of property nor of possession. The mere fact that the possessor of goods has no right to hold them, as against persons having a general or higher special property in the goods, gives no privilege to a stranger to interfere with tlie party's possession. So to interfere would be a breach of duty to the possessor wliich would render the person interfering liable for the value of the goods. For example : The defendant, a stranger, refuses to return to the plaintiff a jewel, wliich the latter has found and shewn to the defendant. The defendant's act is a breach of duty to the plaintiff, and he is liable for the value of the jewel". It would be different, however, if the defendant acted under express authority of the owner, or of one entitled to the possession of the property. But, according to the pre- vailing doctrine, the defendant could not set up the rights of a third person (called the 'jus tertii ') without authority from the latter^. That is, the defendant can deny the plaintiff's right only by shewing a better right in himself. And the same rule prevails in an action to recover the specific goods*. In order, however, that possession should confer the right to sue for conversion, the possession must, as in an action for trespass, be rightful for the time ; (and such it 1 Koberts v. Wyatt, 2 Taunt. 268. 2 Armory v. Delamirie, 1 Strange, 505 ; s. c. L. C. Torts, 388. 3 Jefferies r. Great Western Ey. Co., 5 El. & B. 802 ; Cbeesman r. Exall, 6 Ex. 341 ; L. C. Torts, 426. ■* Rogers v. Arnold, 12 Weucl. 30 (N. Y.), reviewing the common- law authorities. 202 LAW OF TORTS. [PART II, may be though subject to be defeated by the claim of one who lias a supei'ioi' right of property). In other words, a person who has acquired possession of goods unwarrantably, whether by theft or by fraud, force, or violence, or other- wise, without title or rigid, cannot maintain an action for conversion of the goods even against one who has taken them away from him in a like or any other manner'. In order to confer a right upon the tinder of goods, he must therefore have taken possession in good faith, and not feloniously or by a trespass, — with a purpose of return- ing the property to the owner upon his appearance and proof of property. The finding of a chattel does not, however, in all cases give a right to hold the article against all persons having no right of property in it ; though the finding and taking possession were not unlawful as against the loser. The chattel may be found upon the premises of another, in such a situation as to indicate that it was voluntarily placed in possession of the owner of the premises. When this is the case, the possession of the article is deemed to be in the occupant of the premises, and not in the finder. The former can therefore maintain an action for conversion against the latter, should he refuse to surrender to him the chattel. For example : The defendant, a barber, re- ceives from the plaintiff, a customer in his shop, a pocket- book containing money, which the plaintiff has discovered lying upon a table in the defendant's shop. The plaintiff, in handing the pocket-book to the defendant, tells him to keep it until he can discover the owner, and then return it to the loser. No one having called for the article, the plaintiff claims it, and the defendant refuses to give it to him. This is not a breach of duty to the plaintiff, since the fact that the pocket-book was left upon the defendant's 1 See ante, p. 180 ; Buckley v. Gross, 3 Best & S. 566. CHAP, v.] CONVEUSION. 203 table indicates that the owner put it tliere by a volun- tary act, and so put it into the defendant's keeping or possession'. If, however, the chattel be found in a position which indicates that it could not have been voluntarily placed there, but must have been unintentionally parted with, and so truly lost the moment it escaped the owner, it does not fall into the keeping or possession of the occupant of the premises unless he (or his servant) first discover it there. If another first find it, the possession, as between himself and tlie occupant, is in him, the finder. For example : The defendant, a shop-keeper, receives from the plaintifi' a parcel, containing bank-notes, which the latter has picked up from the floor of the defendant's shop ; the plaintiff, on handing the parcel to the defendant, telling him to keep the same till the owner claims it. The defendant advertises the parcel, but no one claims it, and three years having elapsed, the plaintiff requests the defendant to return to him the bills, at the same time tendering the cost of ad- vertising, and even offering an indemnity. The defendant refuses. This is a breach of duty to the plaintiff", and the defendant is liable to him for conversion of the parcel ^ The term ' possession ' has the same meaning here and, indeed, everywhere that it has in cases of trespass^. Thus, a servant can, it seems, only hold ; the possession is the master's. For example : The defendant takes goods out of possession of the plaintiff", a sheriff''s deputy, without authority. The act is deemed not a breach of duty to the plaintiff, since lie is but a servant, and so holds not in his 1 McAvoy V. Medina, 11 Alleu, 548 (Mass.). 2 Bridges v. Hawkesworth, 21 L. J. Q. B. 75. 3 Ante, p. 180. The meaning there ascribed to the term is in- tended to be of the widest application, where tlie possession is real and not merely de jure. 204 LAW OF TORTS. [PART 11, own right ^ ; tliough it would be otherwise in regard to the slieriff'. § 3. Of what constitutes Conversion. It has been seen that conversion consists in the exercise of an act of dominion over the movables of another ; that is, it is a usurpation of ownership. And it matters not whether this was done with or without knowlediye of the true state of the title, as will be seen : every man acts at his peril in exercising acts of dominion over property'. The distinction between trespass and conversion consists in this, that tresjDass is an unlawful taking, as for the mere sake of removing the property, while conversion is an unlawful taking or keeping in the exercise of the right of ownership". There are two kinds of acts of dominion ; iirst, where the wrong-doer appropriates to himself the goods of another; secondly, where, without appropriating them to himself, he deprives the owner, or person having the superior right, of their use. The most common illustration of an act of dominion of the first kind is the case of a sale and delivery of goods, made without authority of the owner. Every sale without restriction by a person having no x'ight to sell is a con- version, if followed by delivery, and renders the vendor 1 Hampton v. Brown, 13 Ired. 18 ; ante, i^. 181. But there is some doubt about this. See Moore v. Robinson, 2 B. & Ad. 817 ; Mathews V. Harsell, 1 E. D. Smith, .^93 (N. Y.). For a consideration of the subject in detail see Holmes, Common Law, 226 — 228. And see Ashwell's Case, 16 Q. B. D. 190. ^ See a qualification stated in Hollins v. Fowler, L. R. 7 H. L. 757, 768, Lord Blackburn, in regard to dealing with goods at the re(iuest of one having actual custody of them, in the bona fide belief that he is owner or has the owner's authoritj-. ■* See Bushel r. Miller, 1 Strange, 129 ; Fouldes v. Willoughby, 8 M. & W. 540, 551, Rolfe, B. CHAP, v.] CONVERSION. 205 liable in an action of trover'. For example: Tlie defendant, an officer, levies upon goods as tlie property of a third person, some of which belong to the plaintiff, takes them away, after being informed of the plaintiff's claim, and sells the whole. This is a conversion of the plaintiff's goods ; though it would have been otherwise had the goods been mixed by the plaintiff with those of the third person, and a separation not offered by the plaintiff'. The same consequence follows where, having authority to make a sale, the party selling transgresses his right ; since to do so is to assert that he may sell according to his own will, and that is to exclude the rights of all otliers. For example : The defendant, an officer, makes, unneces- sarily, an excessive levy upon the plaintiff's goods, under a valid Avrit, and sells them. This is a conversion, since it is done in disregard of the defendant's authority, and accord- ing to the party's own wilP. This principle that the sale of property with delivery is an act of dominion so as to render the seller liable for conversion if he had no right to sell as he did, applies equally whether the vendor knew or did not know the true state of the title, or the actual limit of his authority. Liability for converting the goods of another to one's own use does not depend upon the intent of the party exercising the act of dominion. For example : The defendant sells and delivers a horse of the plaintiff to a third person, the defendant having bought the animal from one who had no title to it, though the defendant supposed the contrary, and 1 Quaere, whether a demand would be necessary ? It seems not in principle, for the delivery of the goods would complete the conver- sion. There is, however, considerable conflict of authority upon this point in America. See the Am. ed. of this book, pp. 202, 213. 2 See 2 Kent Com. .36."i. 3 Aldred v. Constable, 6 Q. B. 370, 381. So to pledge the goods of another without authority. Carpenter v. Hale, 8 Gray, 157 (Mass.). 206 LAW OF TORTS. [PART II. supposed himself to be owner of tlie horse at the time of the sale in question. The sale by the defendant is a conversion \ The purchaser too, in such a case, though he bought without notice, would acquire no right to hold the property, unless he bought in 'market overt''. This supposes, how- ever, that the vendor had no such title as would justify him in making an absolute sale. If for the time he has the ownership of the goods, even though his title was defeasible, a purchaser for value, without notice that the title is liable to defeat, acquires the property by his pur- chase, and cannot therefore be guilty of a conversion Ijy refusing to restore the goods to the person who had the rio-ht to defeat his vendor's title. Such would be the case where the purchaser's vendor had acquired his title from the plaintiff by means of a sale effected by false, and even by fraudulent, representations. Fraud of this character renders the sale voidable merely, and not void ; and the consequence is, that the defrauded party has a right to rescind the sale so long as the property remains in the hands of the buyer from liimself, or of any one claiming under him who is not a bona fide purchaser for valued But inasmuch as the buyer, notwithstanding his fraud, acquired the title to the goods, he can convey that title ; and more, he can convey a better right than he had himself, provided he sell to a bona fide purchaser for value. Hence, not only would such purchaser be free from liability in refusing to return the goods to the defrauded 1 Harris v. Saunders, 2 Strobh. Eq. 370, note (South Carolina). See McCombie v. Davies, G East, 538, Lord Ellenborough; Hilbery v. Hattou, 33 L. J. Ex. 190; Fowler v. Hollins, L. E. 7 Q. B. 616 ; s. c. 7 H. L. 757. ■^ Cooper V. Willomatt, 1 C. B. 672. 3 Clough V. North-westeru By. Co. L. R. 7 Ex. 26. CHAP, v.] CONVERSION. 207 party, but should that party obtain possession of them and refuse to deliver them to the purchaser from the intermediate seller, he (the defrauded party) would himself be liable in trover. For example : The defendants, having previously been owners of a quantity of iron, sell the same to P, who gives them a fraudulent draft (supposed by the defendants to be good) for the amount due for the property. P then sells the iron to the plaintiff, who buys for value, and with- out notice of the fraud. Subsequently, the defendants discover the fraud, and send their servant to take away the iron, now lying in port in a lighter alongside the plaintiff's wharf. The servant takes away the lighter and brings the iron tlierein to the defendants. The plaintiff has acquired a good title to the iron, and the defendants are guilty of a conversion'. There are other cases in which a person may by pur- chase for value and without notice acquire a better title than his vendor had. A purchaser of goods from one who has by the terms of sale reserved the right to buy back the property within a certain time, acquires (or may by such a transaction acquire) the title to the property, and having a good title, he may convey the same to one who purchases for value and without notice so as to cut off the original owner's right to repurchase. The consequence is, that the last purchaser is not guilty of a conversion by refusing to let the original owner have the goods upon a tender by him of the amount he was to pay for tliem, tliough made within the time agreed upon between him and his buyer. The case would be different, however, in regard to the buyer from the original owner. His act in making the sale would be lawful against the seller, if the seller should never offer to repurchase ; but if the seller should offer to repurchase, 1 White V. Garden, 10 C. B. 919. See, e converse, Cundy v. Lindsay, 3 App. Cas. 459. 208 LAW OF TORTS. [PART II. and tender the price, his purchaser would be bound to return to him the goods, and, in case of failure, would be liable according to the terms of the contract. If, however, the sale were upon condition that the title should not pass until the j)erformance of some condition, the party, not having acquired the title, could not convey it ; and an attempt to do so by a sale and delivery would, it seems, subject the buyer to liability for conversion. For example : The defendants purchase furniture from W, who had taken possession of the same upon an agreement that he should keep it six months, and if within that time he should pay a certain sum for it, it should be his ; otherwise, he was to pay twenty-five per cent, of the price for the use. The sale to the defendants is made shortly after W takes possession of the furniture and before payment for it. A refusal by the defendants to restore the property to the plaintifi" is a breach of duty to him, and makes them liable for the value of the furniture \ According to recent authorities, the holder of a pledge or pawn has such an interest in the chattel that he can dispose thereof by sale or repledge without subjecting the purchaser or repledgee to liability, and without subjecting himself thereto, except in either case upon a failure to produce the pledge or pawn upon tender of the debt to secure which the chattel was given. For example : The defendant has taken in pledge from S certain bonds, which the plaintiff* had pledged to S for the security of a debt smaller than the amount of the debt of S to the defendant ; the repledge being made before the maturity of the original debt^ and before payment or tender thereof. The refusal 1 Sargent v. Gile, 8 N. H. 325, denying Vincent v. Cornell, 13 Pick. 294 (Mass.). - That is, while the bonds were still subject to redemption by the i:)laintiff. CHAP, v.] CONVERSION. 209 of the defendant to return the bonds to the plaintiff except on tender to the defendant of the amount due to S is not a violation of duty to the plaintift'; nor would the act of S amount to a conversion, unless upon tender of the debt due to him he sliould fail to return tlie bonds'. One who has a special property in goods may or may not be able to dispose of his interest therein, according to the nature of his interest. Not every special property is alien- able. In many cases of bailment, the special objects to be effected forbid that the bailee should have an assignable interest. Such is the case (1) where the bailment is made upon a trust in the personal skill, knowledge, or efficiency of the bailee. Such is the case (2) where the bailee has a mere lien upon the goods entrusted to him. And such is the case (3) where the bailment is at will. In either of these cases, any attempt by the bailee to assign his inter- est in the property, followed by delivery of possession, puts an end at once to the bailment. Tlie consequence is, that the assignee acquires no title or right, and becomes liable on refusing to surrender the goods to the owner, even if not by merely taking them. There is, however, a large class of bailments where the trust is accompanied with other incidents than those per- taining to a simple bailment, and where there is no ele- ment of personal trust, and none of the characteristics of an estate at will ; and in this class it is clear that the bailee has an assignable interest. There can be no conversion, therefore, in the act of transferring such an interest merely, provided the assignee claims only the rights of the assignor; because the latter, having exercised no act of dominion over the property, but having dealt simply with his own interest, did not reinvest the owner with a right of possession. An 1 Donald v. Suckling, L. E. 1 Q. B. 585 ; s. c. L. C. Torts, 394. B. T. U 210 LAW OF TORTS. [PART II. attempt by the bailee to dispose of the goods absolutely, however, would be different, if followed by a delivery of them. For though a bailee could not, without fault on the part of the owner (by holding him out as having a right to sell absolutely), dispose of anything beyond his own inter- est, the attempt to do so, followed by the overt act, would be to exercise dominion over the goods'. It is not always necessary that there should be an appropriation of the entire property held in order to effect a conversion of the whole. If the part appropriated be necessary to the use of the rest, as by rendering a sale of it impracticable, the part appropriation, if wrongful, will, it seems, be a conversion of the whole. For example : The defendant, a bailee by the plaintiff of wine in casks for sale by the cask, consumes part of the wine in one cask. This is (probably) a conversion of all the wine in that cask ^ It appears to be immaterial to the plaintiff's right of recovery for the whole, that what remains is still in itself as good as if there had been no severance ; the plaintiff has the right to the benefit to be obtained from it in its en- tirety, where that is a special benefit. This principle would apply to cases where separate articles are delivered under one entire contract of bailment or lease, even though the articles be separately enumerated and valued. The bail- ment or lease is still indivisible in contemplation of law, and conversion of part may be conversion of the whole ^. ^ See ante, p. 205 ; Lancashire Wagon Co. v. Fitzhugh, 6 H. & N. 502 ; Cooper v. Willomatt, 1 C. B. 672. 2 Philpott ?'. Kelley, 3 Ad. & E. 106, semble. The case was not so strong as the facts put in the example. See Clendon v. Dinneford, 5 Car. & P. 13 ; Gentry v. Madden, 3 Pike, 127 (Arkansas), stated in the Am. ed. of this book, p. 196. ' See Clendon v. Dinneford, supra. CHAP, v.] CONVERSION. 211 If, however, separate articles be severally bailed or leased, by distinct contracts, though all be delivered and bargained for at the same time, the rule of law is (probably) different ; a conversion of one of the articles or parts would not in such a case operate as a conversion of the whole. If the owner of goods stand by and permit them, with- out objection, to be sold as the property of another, the purchaser acquires a good title, and is not liable to the owner for a refusal to deliver them to him. For example : The defendant purchases machinery of M, the legal title to which at the time of the sale is in the plaintiffs. The machinery is sold under a levy of execution against M, and the plaintiffs, though having notice of the levy, and having repeatedly conversed about it, before the s'ale, with the attorney of the party who made the levy, never lay any 'Claim to the property until after the sale. The defendant's refusal to surrender the machinery to the plaintiff is not a breach of duty\ Appropriating an article held in bailment to a use not contemplated at the time of the contract of bailment may also constitute conversion. For example : The defendant hires of the plaintiff a horse to ride to York, and rides it beyond York to Carlisle. This is a conversion of the animal, entitling the plaintiff, on return of the property, at least to nominal damages, and to actual damages if any loss be in fact sustained by reason of the act*. It has sometimes been supposed that there can be no right of action for conversion in such cases, unless the chattel was injured in the misappropriation ^ But there is 1 Pickard v. Sears, 6 Ad. & E. 469, leading case. 2 Isaack v. Clark, 2 Bulst. 306 ; Perham v. Coney, 117 Mass. 102. s Johnson t'.Weedman, 4 Scam. 495 (111.); Harvey u. Epes, 12 Gratt. 153 (Va). In the first of these cases a horse which the defendant had converted, died on his hands, directly after but not in consequence of 14—2 212 LAW OF TORTS. [PART II. ground for doubting tlie correctness of this doctrine. The foundation of the action is the usurpation of the owner's, right of property. It is true, the plaintiff in trover seeks to recover the value of the thing converted, but if he has received it back, or if it has been tendered back in proper condition, he will be allowed to recover no more (beyond nominal damages) than the amount of his loss'. But con- version itself is a cause of action; it is not necessary to prove special damage. In all the foregoing cases, it will be observed that there is something more than an assertion, by word of mouth, of dominion over the chattel. An assertion alone, not followed by any act in pursuance of it, such as a refusal to surrender the chattel to the person entitled to possession, would not amount to a conversion. Tliere must be some unauthorized interference with the plaintiff's right of possession. Even an attempted exercise of dominion, without right, appears to be insufficient to constitute a conversion, if the owner's right was not in fact inter- rupted. For example : The defendant, by an officer, makes a declaration of attachment of goods which h& knows is already duly levied upon by the plaintiff', has a keeper appointed and then suffers the owner of the attached property to take it away and sell it, and receives part of the avails. This is deemed not a conversion ^ the conversion. It was held that the owner had no cause of action. The plaintiff was not entitled to recover the value of the horse, but he had a cause of action, it should seem. 1 Fisher v. Prince, 8 Burr. 1363 ; Earle v. Holderness, 4 Bing. 462 ; Cook v. Hartle, 8 Car. & P. 56s. .Judgment for the plaintiff in trover does not vest the property in the defendant. Brinsmead v. Harrison, L. R. G C. P. 584. '-' Policy V. Lenox Iron Works, 2 Allen, 182 (Mass.), adopting the language of Heath, J. in Bromley v. Coxwell, 2 B. & P. 438, that ' to CHAP, v.] CONVERSION. 213 In the foregoing kind of cases, the defendant lias appropriated tlie goods in question to his own use. But, as has been stated, a wrongful act of dominion may be committed without so appropriating the goods. It is enough that the defendant has wrongfully deprived the plaintiff of the possession of liis goods or usurped his rights over tlieni, though for the benefit of a third person. In cases of this kind it was formerly supposed that an intention to deprive the plaintiff of his goods was necessary ; but this has been decided to be incori'ect. The question still is whether there has been a wrongful exercise of dominion by the defendant ; if there has been an unautho- rized act which deprived the plaintiff of his property permanently or for an indefinite time, there has been a conversion'. If not, the contrary is true. For example: The defendant, manager of a ferry, receives on board his boat the plaintiff, with two horses. Before starting, the plaintiff is reported to the defendant as behaving impro- perly, and though he has paid his fare for transportation, and the defendant tells him that he will not carry the horses, and that they must be taken ashore, the plaintiff refuses to take them off the boat, whereupon the defendant puts them ashore, and has them taken to a livery for keeping. The plaintiff goes with the boat, and the next day sends to the livery stable for his horses. In reply, the plaintiff is told that he can have his horses by coming and paying the charges for keeping, otherwise they would be sold to pay expenses. They are sold accordingly, and damages as for a conversion are sought of the defendant. The action is not maintainable, support au action of trover there must be a positive tortious act.' Here the defendant was merely ' suffered ' to take and sell the proi^erty. ^ Hiort c. Bott, L. R. 9 Ex. 86, 89, Bramwell, B. 214 LAW OF TORTS. [PART II. since there is nothing to shew that the defendant wrongfully deprived the plaintiff", even for a moment, of his property'. Any asportation of a chattel, however, for the. use, of a third person amounts to a conversion, for the reason that the act is inconsistent with the right of dominion which the owner (or person entitled to possession) has in it". And the same is true of an intentional, or possibly negli- gent, destruction of the chattel ^. In the case of acts of co-owners (co-tenants) nothing short of a substantial destruction of the common pi'operty by the wrongful act of one of them can make him liable to the other or others for conversion*. This is on the ground that each of the common owners has a right to the entire possession and use of the property. A sale and delivery would not be enough ; for the purchaser would only become a co-owner with the others ^ But it is not necessary that there should be a physical destruction of the property, as by breaking it in pieces ; it is enough that the common interest, or rather the plaintifl^'s interest, is practically destroyed, as by tlie defendant's selling the property in market overt '^. Demand of the goods, followed by a refusal to deliver them, is always necessary unless the plaintiff can establish some other act of conversion. But if any act of conver- sion, apart from demand and refusal, has been committed, the injured party is entitled to bring suit without first de- 1 Fouldes V. Willoughby, 8 M. & W. 540. For other examples, see Simmons v. Lillystone, 8 Ex. 431 ; Thorogood r. Robinson, 6 Q. B. 769. - Fouldes II. Willougliby, supra. ^ lb. ^ Farrar v. Besvvick, 1 M. & W. 682, 688, Parke, B. ; Morgan r. Marquis, 9 Ex. 145 ; Mayhew v. Herrick, 7 C. B. 229. Comp. the case of trespass, ante, pp. 184 — 186. ^ Morgan v. Marquis, supra, Parke, B. " Farrar v. Beswick, supra. CHAP, v.] CONVERSION. 215 manding liis property. In other cases, a demand and wrongful refusal will be necessary, since without them there has been no wrongful exercise of dominion'. For exam- ple : The defendant collusively purchases goods from a trader on the eve of the trader's bankruptcy, and takes the property into his own possession. The assignee of the trader brings trover without a demand. The action is not main- tainable, since the defendant had been guilty of no con- version ; the trader being competent to contract, thougli his contract of sale was liable to impeachment". Of the last example, it should be observed that (in accordance with a principle already stated) the fraud of the trader and the defendant did not make the sale void ; its only effect was to render it voidable. The contract was therefore binding until disaffirmed : and a disaffirmance could be made only by a demand of the goods, or by some act tantamount thereto. And the devnand and refusal, that is, the conversion, must be apart from the bringing of suit, when such acts are necessary ; for the cause of action must have arisen before suit was begun. In the example given, if the defendant had sold the goods, or improperly detained them after a disaffirmance of the sale, the action would have been maintainable^. A very conunon instance of the necessity of demand and refusal is where goods have been put into the hands of another for a special purpose, upon agreement to return them when the purpose is accomplished ; in regard to which the rule is, that a breach of the contract by the mere failure so to return the goods does not amount to a conversion. Before the bailee can be liable in trover in such a case, supposing there had been no misappropriation J Chitty, Pleading, 157 ; Nixon v. Jenkins, 2 H. Black. 135. 2 Nixon V. Jenkins, supra. 2 Bloxam v. Hubbard, 5 East, 407. 216 LAW OF TORTS. [PART II. or other act of dominion, there must be a demand for the goods and a refusal to restore them'. An unqualified re- fusal will itself, in almost all cases, constitute a conversion". A qualified refusal to deliver goods on lawful demand may, however, be only prima facie evidence of a conversion^. The defendant may have found the goods, and refused to surrender them to the plaintiff until he shall have proved his right to them. It follows from what has already been said that such a refusal is justifiable, since, if the plaintiff is not entitled to the goods by right, the defendant as finder has the better claim ; and he cannot or may not know that the plaintiff may not be a pretender until he has furnished evidence that he is not. And other cases of the kind might be stated*; the only question, where the refusal to return is qualified, is whether it is reasonable '\ If the demand be not made upon the defendant himself, but merely left at his house in his absence, it seems that a reasonable time and opportunity to restore the goods should be suffered to elapse before the defendant's non-compliance with the demand can be treated as a refusal amounting to a conversion. Non-compliance with the demand after a reasonable opportunity has been afforded to obey it is, however, clearly tantamount to a refusal, and is presump- tive evidence of a conversion, casting upon the defendant the burden of explaining that the omission to deliver the goods was justifiable". 1 Severin ;;. Keppell, 4 Esp. 156. - Alexander v. Southey, 5 B. & Aid. 247, 250. ^ Burroughes v. Bayne, 5 H. & N. 296; Alexander v. Southey, supra. 4 See Pollock, Torts, 290, 291. 5 Alexander v. Southey, supra, at p. 250. *> 1 Chitty, Pleading, 160; Thompson v, Piose, 16 Conn. 71; White V. Demary, 2 N. H. 546. CHAPTER VI. INFEINGEMENT OF PATENTS AND COPYRIGHTS. § 1. Introductory. Statement of the duty. A owes to B the duty (1) to forbear 'working or making', without B's license, anything patented by B ; (2) to forljear to print for sale or expor- tation, or to import for sale or hire, any book of which B owns the copyright, without B's written consent, or know- ing the same to have been so printed or imported, to sell, publish or expose or keep for sale or hire, without such consent, any such book'. The word ' book ' (or its equivalent) is to be taken to in- clude every volume, part or division of a volume, pamphlet, sheet of letter-press, sheet of music, map, chart, or plan, separately published". Whether a particular act is an infringement of letters patent, or of a copyright, will depend upon the answer to two questions ; what is the nature and extent of the right alleged to be infringed 1 and what is the nature of the act complained of? It has not been necessary heretofore to deal much with the nature of the plaintiff's right, since it has generally been obvious enough what it was ; and attention has accordingly been drawn mainly to the eon- 1 The statutes are too prohx for further statement here. ■•' As in 5 & 6 Vict. c. 45, the general copyright act. 218 LAW OF TORTS. [PART II. duct of the defendant. Now, however, the plaintiff's right, whether in a matter of patent or of copyright, is peculiar, and some attention must be given to that side of the subject ; though matters of detail, both in regard to the nature of the right and of the defendant's conduct, must be left for special treatises upon the respective subjects. § 2. Of Patents for Inventiox. A statute of the reign of James the First, aimed at monopolies and declaring them illegal, contains a saving clause in regard to letters patent, which forms the basis of the present law of patents for invention, and has never been essentially changed. The statute saves from the general condemnation and makes lawful ' letters patent and grants of privilege for the term of fourteen years or under, hereafter to be made, of the sole working or making of any manner of new manufactures within this realm, to the first and true inventor or inventors of such manu- factures, which others at the time of the making of such letters patent and grants shall not use, so as they be not contrary to the law or mischievous to the state'.' This and subsequent statutes contain many provisions more or less minute concerning the steps to be taken to secure the benefit of such letters patent ; and thei'e are statutes of amendment in regard to matters which cannot be set out here ; there are also statutes extending, in certain cases, the term of the letters for seven and in exceptional cases for fourteen years"; and finally there is a recent general revision of all the statutes on the subject^. 1 21 Jac. I, c. 3. ^ 46 & 47 Vict. c. 57, § 25. ^ The statutes in order are 5 & 6 Wm. IV, c. 83 (in regard to disclaimers or memorandum of alterations, and providing a penalty for unauthorized use of patentee's name, or counterfeit of his stamp inter alia); 2*3 Vict. c. 67 (extending period in certain cases for CHAP. VI.] INFRINGEMENT OF PATENTS, ETC. 219 Among the matters of chief importance in the steps necessary to acquire the right is the making out and sending to the Patent Office, with the application for the patent, a specification of the invention, with a short state- ment of the claim of the inventor at the end. The law provides for two specifications, a provisional and a complete one ; though the former need not be made. It is important to understand the purposes of the two, and the distinctions between them. The provisional specification is supposed to be drawn up before the inventor has fully perfected the details of his invention. It should describe generally and fairly the nature of the invention, with drawings if required, so that the invention may be understood; it need not enter into all the details in regard to the manner of carrying out the same'. Its purpose is only to protect the inventor until the description can be perfected in the complete specification ; it is not made public, unless with that specification". Indeed, if allowed by the law oflicer of the Crown, the earlier description cannot be impeached as too general^. The test of the sufficiency of any specification is laid down to lie in this, whether it would enable an ordinary workman, exercising the knowledge common to the trade, to make the machine. ' It need not give every detail, but it must not tax invention*.' That is, if a workman of ordinary skill would not be able to construct a machine seven years); 7 & 8 Vict. c. 69 (same for fourteen years) ; 15 & IH Vict. c. 83 (Patent Law Amendment Act of 1852) ; 16 & 17 Vict. c. 115 (amending Act last named) ; 46 & 47 Vict. c. 57 (general revision of the statutes). ' In re Newall, 4 C. B. n. s. 269, 293, Byles, J. ; Stoner v. Todd, 4 Ch. D. 58, Jessel, M. li. 2 Stoner v. Todd, supra. 3 Penn v. Bibby, L. R. 2 Ch. 127. ^ Plimpton V. Malcolmson, 3 Ch. D. 531, Jessel, M. R. 220 LAW OF TORTS. [PART II. from tlie description, without a series of experiments, the specification is insutficient'. The complete specification is of course a difierent thing from the provisional one. Unlike that, it must particularly describe and ascertain the nature of the invention and the manner in which it is to operate; and, as in the case of a provisional specification, it must also be accompanied by drawings if required". The omission in either specification to mention anything which may be necessaiy for the beneficial enjoyment of the invention would be fatal ; though this would not be the case if the thing omitted go only to the degree of such enjoyment^. The complete specification should not claim anything difiering in substance from that contained in tlie earlier one ; but on the other hand it need not extend to every- thing described there. Part of the earlier may, as has been said, be omitted altogether ; or where the facts have been sufficiently described in the provisional specification for the purpose of a final one, the prior description may be referred to, without repeating if. The rule concerning the final specification is, however, rioid. It must be free from all untrue statement, even such as may appear only upon a literal reading. If it contain an untrue statement such as, if literally acted upon, would mislead a competent workman, it is bad : and this though a competent workman would correct the error in practice \ For example : The plaintiff's specification, grammatically construed, claims to effect a particular result by two processes, one of which will not effect it. A skilled ^ Wegmann v. Corcoran, 13 Ch, Div. 65. 2 § 5 ; In re Newall, 4 C. B. n. s. 269, 293. 3 Neilson v. Harford, 8 M. & W. 806. 4 Penn v. Bibby, L. R. 2 Ch. 127. 5 Neilson v. Harford, 8 M. & W. 806, Parke, B. CHAP. VI.] INFRINGEMENT OF PATENTS, ETC. 221 workman would not be misled, but would adopt the right process. The patent granted thereon is invalid'. The meaning of the specification should be clearly expressed ; it should not be ambiguous, or it will be bad for the purpose of the patent". For examjDle : The plaintiff files a specification for the construction of a windlass, stating the object to be ' to hold, without slipping, a chain cable of any size'. Constructions are known before the date of the patent, by which windlasses might be made to hold a single chain cable of any size. The specification does not unequi- vocally shew that the object is to construct a single wind- lass which might hold different chain cables whatever their size, and is bad^. But while the rule is much more exacting in regard to the final than in regard to the earlier specification, it is not unreasonable ; and slight variations not touching anything of substance, or tending to mislead or to experimenting, will not be fatal. For example : The plaintiff makes a preliminary speciticatiozi for a patent relating to sewing machines, which describes an instrument of the patent, and tlien says that ' this, or another acting therewith, acts to hold tlie work during the insei'tion of the needle'. The final specification describes only one instrument as so holding the work. The variance is not sufficient to defeat the letters patent granted thereon ^ It matters not, either, that the specification may include an invention not new, if, omitting that, there is still enough left to constitute the ground for a patent'^. 1 Simpson v. HoUiday, L. E. 1 H. L. 315. ■■^ Turner v. Winter, 1 T. E. 602; Hastings v. Brown, 1 El. & B. 450. 3 Hastings v. Brown, supra. 4 Thomas v. Welch, L. E. 1 C. P. 192. 5 Frearson v. Loe, 9 Ch. D. 48, Jessel, M. E. 222 LAW OF TORTS. [PART II. Further, however perfect may be the specifications in point of description, there is no valid patent of course unless the plaintifl^" is 'the first and true inventor'. And what this means is to be found, not necessarily in the meaning which might naturally be attached to the words, but in that meaning which the courts have given to it. What this meaning is may be indicated by the language of a distinguished Master of the Rolls'. The learned judge said in substance that shortly after the first statute con- cerning patents, the question arose whether a inan could be called a first and true inventor who in the popular sense had not invented anything, but who, having learned in some foreign country that some one had invented some- thing, copied the invention, brought it to England, and took out a patent. It was held that he was a first and true inventor within the meaning of the statute, if the invention, being in other respects novel and useful, was not previously known in England as part of the common knowledge of the country. Then, as the Master of the Rolls proceeded to say, this case arose : There were two people, actual inventors in England, who invented the same thing simultaneously ; and the question was, whether either could be considered as the first and true inventor. The decision was that he was the first and true inventor who first took out the patent. And then this question arose : If the man who took out the patent was not, in popular language, the first and true inventor, because someone had invented the thing before, but had not taken out a patent for it, would he still be protected ? It was decided that he would, provided the invention of the first inventor had been kept secret, that is, had not been made known in such a way as to 1 Sir George Jessel in Plimpton v. Malcolmson, 3 Ch. D. 531, 551. CHAP. VI.] INFRINGEMENT OF PATENTS, ETC. 223 become part of the common knowledge, or of the public stock of information. Tlie common knowledge then of the country is the test by which the question of novelty is to be applied. This obviously does not mean that everyone must know the principle of the supposed invention. What is meant, as the same judge said, is that if the thing is a manufacture connected with a particular trade, the people in that trade shall know something about it. Nor indeed need the case go so far as that. It is not necessary that the bulk, or even a large number, of those people knew the fact ; if the fact be so communicated that a sufficient number may be presumed or assumed to know it, that is enough to defeat the patent. The fact may thus be communicated in different ways ; one way is by publishing it in a specification enrolled in the Patent Office ; another is by printing the description in a book published and circulated in England. But the question of publication will even then turn upon the facts in the case. The mere fact that a book published in a foreign country, and containing a brief description of the invention, is found in England, is not enough. For example : The plaintiff, a citizen of the United States of America, obtains in 1865 letters patent in England for improvements in making skates. Two years before, an American book containing a brief description of the invention had been sent to the (English) Patent Office ; and so had a book of drawings, containing a drawing of it, five weeks before the patent was here issued. This is not such a publication as to render that patent invalid'. The enrolling of the preliminary specification in the Patent Office may not amount to a publication so as to bar a claim for novelty, where part of it (or perhaps the ^ Plimpton V. Malcolmson, supra, a case of the greatest value. 224 LAW OF TORTS. [PART II. whole) contains an incomplete and insufficient description of an invention. For example : The plaintift' enrolls in the Patent Office a preliminary specification which contains an incomplete description of a patent ; and that part is afterwards omitted in the final specification. Subsequently the plaintiff obtains a separate patent in respect of such part ; and afterwards the defendant makes for sale an article on the principle of such patent. This is a breach of duty, the first description not being a publication'. Thus far of the acquisition and retention by the plaintiff of his patent right; it remains to consider what will give him a right of action, assuming the existence of the fundamental right. That is, assuming that the plaintiff has a valid patent, the question remaining relates to the act of the defendant as constituting the alleged infringement. The statute gives to the owner of the patent liberty ' of the sole working or making ' of the manufacture. This prevents all manner of 'user' in the legal sense; but it does not prevent all manner of making the patented thing by others. Patents, it has been forciljly declared from the bench, are not granted to prevent men of ingenuity from exercising their talents in a fair way. The mere making for the honest purpose of experiment, without any view of using or vending for profit, is not forbidden ; it matters not that the article so made was made with a view to improving upon the patent, or with a view to see whether an improvement can be made, — that would not be an infringement^. Indeed, the mere exhibition of an im- provement is not a user ; but to expose the imitation for 1 Stoner v. Todd, 4 Gh. D. 58. See also Oxley v. Holden, 8 C. B. N. s. 666, as to the effect of abandoning a former specification. And as to want of sufficient description in the preliminarj' specification see United Telephone Co. v. Harrison, 21 Ch. D. 720. - Frearson v. Loe, 9 Ch. D. 48, Jessel, M. E. CHAP. VI.] INFRINGEMENT OF PATENTS, ETC. 225 sale would be an infringement, thougli no sale was made'. And it matters not in this or any other case whether the defendant knew of the existence of the plaintiff's patent ". Where the patent consists, as it may, of a combination of things, an infringement of it must be an infringement of the combination as such ; it would not be infringed by using some of the parts of the combination if they are not themselves patented^. Nor in the like case would it be an infringement to use a combination of some of the parts, less than what would be substantially necessary to constitute the subject of the patent, the combination". Indeed, it is held that a patent for an entire combination will not be infringed by the use of a different combination, for -the same object, of the same elements, if there is no colourable evasion or imitation of the patent^. But where a patent consists of and covers several parts, to imitate any one of them would be an infringement''. For example : The plaintiff has a patent for an improved carriage wheel; the specification stating that 'said improved wheel is manufactured wholly of bar iron, by welding iron bars together into the form of a wheel, whereof the nave, spokes, and rim, when finished, will consist of one solid piece of malleable iron. And the mode whereby the said bars of malleable iron are finished and united into the shape of a wheel is as follows : ' The specification then shews by drawings how the main spoke and rim are formed and then 1 Oxley V. Holden, 8 C. B. n. s. 666. 2 Stead V. Anderson, 4 C. B. 806. ^ Dudgeon v. Thomson, 3 AjDp. Gas. 34. 4 Clark V. Adie, 2 App. Gas. 315. s Curtis V. Piatt, 35 L. J. Ch. 852, H. L. 6 Electric Tel. Co. v. Brett, 10 C. B. 838 ; Smith v. North-western Ey. Co., 2 El. & B. 69. B. T. 15 226 LAW OF TORTS. [PART II. welded into a wheel of one piece of malleable iron. The 'claim' states that the invention consists in the centre boss or nave, arms, and rim of the wheel being wholly composed of wrought or malleable iron, 'welded into one solid mass in manner hereinbefore described '. The defendant's wheel imitates the manner of forming the boss or nave into one piece of malleable iron with the rest of the wheel, but does not use the same mode with regard to the spokes and rim as the plaintiff's specification describes. The defendant is liable; the claim really being for the invention of the wheel as described, and the defendant's act, being an imitation of the mode of welding the nave, was an infringement of a material part of the patent'. Different processes, further, may be employed for reach- ing the same result ; and the patenting of one process will not exclude the use by others of a different one, where the result to be reached is a known result^. So where one has obtained a patent for the use of a known substance, described by its own name, if it is afterwards discovered that the use of other known substances will produce the same effect, the use of them will not constitute an infringe- ment of the patent ; and this though the testimony of men of science may go to shew that the substances in question become, in the act of so using them, the one substance described in the patent^. An infringement is also committed, though, besides being equivalent to the thing patented, the later article accomplishes some other advantage beyond that effected by the patented article. The new article is still an infringe- ment, so far as it covers the object of the patent. For 1 Smith r. North-western Ry. Co. 2 El. & B. 69. - Badische Anilin Fabrik v. Levinstein, 24 Ch. D. 156; Bovill v. Pimm, 11 Ex. 718. •* Unwin v. Heath, 5 H. L. Cas. 505. CHAP. VI.] INFRINGEMENT OF PATENTS, ETC. 227 example : The defendant, for the purpose of giving signals by telegraph, uses tlie earth for efiecting a return circuit ; the plaintiffs having a patent for giving signals by means of electric currents transmitted through metallic currents. The machinery, aside from the return circuit, used by the defendant is the same as that covered Ijy the plaintiff's patent, and is used without license. The defendant is liable, though the use of the earth for effecting a return circuit is an improvement in the art of telegraphing'. Where, however, the means employed in the later article are different, not merely in form, but in substance, and consist in combinations differing in substance, there is no infringement, though the object be to produce the same result. For example : The defendant constructs a machine for obtaining a current of air between the grinding surfaces of mill-stones, by means of a rotating vane, for effecting which the plaintiff also has a machine, protected by patent. The plan of the defendant is to remove from the centre of both stones a large circular portion, and in this space, opposite the opening between the two stones, to place a fan, by the rapid rotation of which a centrifugal motion is given to the air, driving it between the stones. The plan of the plaintiff consists of a portable ventilating machine, blowing by a screw vane, which causes a current of air parallel to the axis of the vane, being attached externally to the eye of the upper mill-stone; and the screw vane being thus set in rapid motion, the air is forced through the eye into the centre of the stones, and so finds its way out again. The defendant's machine is not an infringement upon the plaintiff's ^ 1 Electric Tel. Co. r. Brett, 10 C. B. 838. 2 Bovill V. Pimm, 11 Ex. 718. 15—2 228 , LAW OF TORTS. [PART II. § 3. Of Trade Marks. The law relating to trade marks has been changing it.s point of view, if not its grounds, in recent times, and becoming, as has been observed in another place', assimi- lated to the law of property". The old mode of suing for deceit is falling into disuse as a remedy for infringing a trade mark, in the light of the better remedy afforded by what would formerly have been called equitable proceed- ings. But it is not yet clear that the law has advanced or will advance to the point of assimilating the law of trade marks so far with tlie law of property (as e.g. the law of patents) as to make it safe to say that, for the purpose of recovering damages, the old authorities, which make the action virtually an action for deceit, are no longer law. The subject, with this suggestion, must then be dropped in this connection ; for while an ample remedy is provided upon the footing of a property right in the trade mark where damages are not sought, it is to be borne in mind that this book is a treatise relating to actions for damages. In a word, an injunction, or nominal damages, may be had in respect of the infringement of a trade mark right, with- out further requirement ; but can substantial damages be obtained without proof of fraud as interpreted by the courts in the law of deceit^? Would that not be to make a trade mark a patent ? § 4. Of Copyrights. Statute provides in substance that the copyright in every book published in the author's lifetime shall endure 1 Ante p. 50, note. 2 See 46 & 47 Vict. c. 57, §§ 62 et seq. * See Singer Manuf. Co. v. Loog, 18 Ch. Div. 395 ; Johnston v. Ewing, 7 App. Gas. 219 ; s. c. 13 Ch. Div. 434 ; Singer Machine Manufacturers v. Wilson, 3 App. Cas. 376. CHAP. VI.] INFRINGEMENT OF PATENTS, ETC. 229 for the natural life of tlie author and seven years there- after, and shall be the property of the author and his iissigns, provided that if the seven years expire before the end of forty-two years from first publication the copyright shall endure for forty-two years ; and that the copyright in every book published after the author's death shall endure for forty -two years'. It is also provided that if any person shall in any part of the British Dominions print or cause to be printed, either for sale or exportation, any book in which there shall be a copyright, without the proprietor's consent in writing, or shall import for sale or hire any such book, so unlawfully printed beyond the sea, or knowing such book to have been so unlawfully pinnted or imported, shall sell, publish, or expose to sale or hire, or cause to be sold, published, or exposed to sale or hire, or shall have in his possession for sale or hire any such book, without the proprietor's consent in writing, such offender shall be liable to a special action on the case at the suit of the proprietor of the copyright, in any court of record in that part of the British dominions in which the offence shall be committed ^ Among many other provisions penalties are fixed for unlawful importing for sale or hire of books the subject of copyright^ ; copyright in encyclopaedias, reviews, magazines, periodicals, and works published in a series is provided for"* ; the provisions of eai'lier law are extended to musi- cal compositions ; and the term of copyright for books applied to the liberty of representing dramatic pieces and musical compositions \ Pirated books are to become the property of the proprietor of the copyright ; but no suit is 1 5 & 6 Vict. c. 45, § 3. - Id. § 15. 3 Id. § 17. ^ Id. § 18. 5 Id. § 20. 6 Id. § 23. 230 LAW OF TORTS. [PART II. to be brought before entry of the title of the subject of copyright in the Book of Registry at Stationers' Hall'. It is enacted in a later statute that the author, being a British subject or resident within the dominions of the Crown, of every original painting, drawing, or photograph shall have the exclusive right of copying, engraving, re- producing, and multiplying such painting or drawing and the design thereof, or such photograph and the negative of the same, for the term of the author's life and seven years thereafter ; provided that when any painting, drawing, or the negative of any photograph shall first be sold or disposed of, or shall be made for or in behalf of any other person for a good and valuable consideration, the person so selling or disposing of or making or executing the same shall not retain the copyright thereof unless it be expressly reserved to him at the time by agreement in writing signed by the vendee or assignee of such painting, drawing, or negative of photograph, but the copyright shall belong to the vendee or assignee, or to the person for or on whose behalf the same shall have been made ; nor shall such vendee or assignee be entitled to any such copyright unless an agreement at the time in writing shall have been made to that effect ^ This statute furtlier fixes penalties for infringement of the copyright of the author of any painting, drawing, or photograph^, and for fraudulent productions and sales of the same", and also gives an action for damages to the author \ The statute also provides with minuteness of detail the steps necessary to be taken to secure the particular kind of copyright. These cannot be entered into here. It must 1 5 c& 6 Vict. c. 45, § 24. 2 25 & 26 Vict. c. 08, § 1. 3 Id. § 6. ■* Id. § 7. 5 Id. § 11. CHAP. VI.] INFRINGEMENT OF PATENTS, ETC. 231 suffice to say that, whatever doubts once may have existed, copyright has been determined to be a creature of statute, and hence that the author's right must stand or fall ac- cordingly' ; he cannot claim copyright, in the proper sense, if he has not complied with the statutes. But he may claim protection at common law against wrongful publica- tion by others of his manuscripts, class-room lectures, and the like not printed and publislied by him". So a painter or a buyer from him has, before publication of the work, a right to protection against others' copying it''. It should be noticed, however, that the requirement of registration of title is intended only as a necessary pre- liminary to bringing suit, and not as a condition to the existence of copyright ; hence it need not be attended to at the time of taking out the copyright. It matters not, indeed, that the plaintiff has not registered his title at the time of the infringement ; enough that it is done before suit*. On the other hand a man cannot obtain a copyriglit before publishing his book by getting the title of it duly registered*. It is now to be considered in what the plaintiif may have copyright, where the language of the statute does not exclude all question ; though this question cannot be con- sidered in detail. Indeed, it cannot be considered even in lines of broad principle, for want of means of generalization beyond this, that real and original mental labour must have been bestowed upon the work in question. The rules laid down by the courts are in the main special, and it ^ Jefferys v. Boosey, 4 H. L. Cas. 815 ; Millar r. Taylor, 4 Burr. 2303, leading case. ^ Albert v. Strange, 1 Macn. & (i. 25 ; Caird v. Sime, 12 App. Cas. 326. As to ' lecture ', see the last case, at pp. 337, 338. 3 Turner v. Robinson, 10 Ir. Ch. E. 121, 510. 4 Goubaud v. Wallace, 3G L. T. n. s. 704. 5 Maxwell v. Hogg, L. R. 2 Ch. 307. 232 LAW OF TORTS. [PART II. must suffice to present only some of the more important of them, with such illustrations as may be needed. Copyright may be had in the title of a book, if that be a material part of the book ; though as a general rule tlie title to a book, not being in any way new or peculiar, is not a subject of copyright \ For example: The plaintiff publishes a book entitled ' Post Office Directory ' for a certain locality ; and he has taken the steps required for obtaining a copyriglit. The defendant afterwards publishes a book with the same title. This is no breach of duty to the plaintiff ^ A man may have copyright in a newspaper^; he may have copyright in the product of his brain in the pre- paration even of a calendar or a catalogue, unless the same consist in a mere dry list of names'*, especially in an illustrated catalogue. For example : The plaintiffs, up- holsterers, have engraved, from original drawings procured by them from artists, and publish under the copyright laws an illustrated catalogue of their wares ; the catalogue containing, however, no letter-press which might be the subject of copyright. The defendants publish a catalogue containing drawings copied from those of the plaintiffs. This is a breach of duty ; it does not matter that the catalogue is of things for sale'\ A person may also have copyright in an arrangement of questions and answers in some general work, if the 1 Dicks V. Yates, 18 Ch. Div. 76. See Jarrold v. Houlston, 3 Kay & J. 708. 2 Kelly V. Byles, 13 Ch. Div. 682. 3 Walter v. Howe, 17 Ch. D. 708. * Matthewson v. Stockdale, 12 Ves. 270 ; Longman i\ Wiuchester, 16 Ves. 269 ; Hotten v. Arthur, 1 H. & M. 603 ; Maple v. Junior Army Stores, 21 Ch. Div. 369. •^ Maple V. Junior Army Stores, supra, overruling Cobbett v. Woodward, L. R, 14 Eq. 407. CHAP. VI.] INFRINGEMENT OF PATENTS, ETC. 233 arrangement is the product of real mental labour'; he may have copyright in a book of selections and compila- tions from other books the copyright of which he has not thei-eby infringed, especially where he has added oi^iginal work to the same^, as by comment or other additions^, or perhaps by mere arrangement of the materials*. A dictionary of quotations would afford an illustration. But of course no copyright could be obtained in such a case in the individual selections themselves*; nor will it help the case that labour has been expended upon statements made in quoted matter in the way of verifying them". Copyright may be had in a translation of a book into a foreign tongue', if the right of translation has not been reserved, though the author himself has translated his book*; but not in a retranslation, i. e. a translation back again to English". It may be had also in the dramatiza- tion of another man's novel, though the author himself has dramatized the same'". So in the piano-forte score of an opera, whether arranged by the author or not"; and it is held that to unite words to an old air and procure an accompaniment thereto, publishing them together, will entitle one to a copyright in the whole '^ 1 Jarrold v. Houlston, 3Kay& J. 708. See this case for limitations of the rule. 2 Lewis V. Fullarton, 2 Beav. 6 ; Spiers v. Brown, 6 W. R. 352. * These themselves would be the subject of coi^yright. Gary v. Longman, 1 East, 358. * Barfield v. Nicholson, 2 Sim. & S. 1. ^ j^^ « Morris v. Ashbee, L. E. 7 Eq. 34. 7 Wyatt V. Barnard, 3 Yes. & B. 77. 8 Semble. So held in America. Stowe v. Thomas, 2 Wall. C. G. 547. 9 Murray v. Bogue, 1 Drew, 353. 10 Toole V. Young, L. R. 9 Q. B. 523. 11 Wood V. Boosey, L. R. 3 Q. B. 223, Ex. Ch. 12 Leader v. Purday, 7 C. B. 4. 234 LAW OF TORTS. [PART II. Head-notes or marginal notes to the decisions of the judges are also proper subjects of copyright'; and so are products of mental labour worked out of sources of general and common information". Indeed, the case of maps, charts, and the like, falls within the very terms of tlie statute. The plaintiff will lose his benefit of copyright by giving his book to tiie public, that is, ordinarily, by putting it upon the market for sale'', before taking the steps required by the statute for securing a title. Dramatic and musical compositions, however, stand upon a different footing from ordinary books. It is held that to publish such a composi- tion in England before representing or performing it will not deprive the author of the exclusive riglit, under the statute, of representing or performing it^; but the contrary is held if it was first represented or performed abroad \ Thus far of the plaintiff's title ; assuming this now to exist, the remaining question is whether the defendant has infringed it. To tlie author of copyrighted matter belongs the ex- clusive right to take all the profits of publication which the sale of the copyrighted matter may produce. And the author's exclusive right extends to the whole copy, and, in a sense, to every part of it. An infringement of a man's copyright may then be committed (1) by reprinting the whole copy, verbatim ; (2) by reprinting, verbatim, a part 1 Sweet V. Banning, 16 C. B. 459 ; Saunders v. Smith, 3 Mylue & C. 711. 2 See Gray v. Russell, 1 Story, 11, 18. ^ Selling a picture is not publication. Turner v. Robinson, 10 Ir. Ch. R. 121, 510. Nor is exhibiting a picture where copying is not allowed, nor exhibiting it to obtain subscribers for an engraving of it. Id. ^ Chappell V. Boosey, 21 Ch. D. 232. 5 Boucicault v. Chatterton, 5 Ch. Div. 267. Contra in America. Palmer v. Dewitt, 47 N. Y. 532. CHAP. VI.] INFRINGEMENT OF PATENTS, ETC. 235 of it ; (3) by imitating the whole or a part, or by repro- ducing the whole or a part with colourable alterations or disguises, intended to give it the character of a new work ; (4) by reproducing the whole or a part under a colourable abridgement, not fairly constituting a new work. With regard to each of these forms of infringement, it is to be observed that the question of intention does not enter into the question of piracy'. The question is one of property, analogous to cases of trespass or conversion ; the exclusive privilege which the law secures to authors may be equally violated whether the work complained of has been published with or without the animus furandi. The fact that a party has honestly mistaken the extent of his right to avail himself of the works of others will not excuse him from liability. Piracies of the nature of those mentioned under the first head are seldom committed, and they may be dismissed with the observation that it matters not that much original and valuable matter, far exceeding in all respects that appro- priated, may be incorporated with the I'eprint of the copyrighted matter. The act is still an infringement, though the public might derive great benefit from the superior value of the work. Piracies of tlie second kind are more diificult to deal with. The quantity of matter cannot be a true criterion of the commission of an infringement^, since only a small portion of a work may be pirated, and this the most impor- tant part of the work, or a very important part of it. For example : The defendant makes use, in a published volume of judicial decisions, of the head-notes, or marginal notes, of the plaintifi^ in a series of volumes of reports, of which 1 Clement v. Maddick, 1 Giff. 98. 2 Bramwell v. Halcomb, 3 Mylne & C. 737 ; Bradbury v. Hotten, L. E. 8 Ex. 1. 236 LAW OF TORTS. [PART II. the plaintiff owns the copyright. This is an infringement of the plaintiff's rights, for which the defendant is liable ; though such notes constitute but a small pai't of the plain- tiff's work'. Again: The defendant publishes a book entitled, ' Napoleon III. from the popular caricatures of the last thirty years.' Amongst many other pictures, the book contains nine caricatures from Punch, a publication owned by the plaintiff Not more than one picture is taken from a single number of Punch, and the nine taken are from numbers extending over a period of several years. This is a breach of duty to the p]aintiff^ It may be doubtful if any part of the work of another may be taken animo furandi^. How much may be hon- estly taken, that is, taken without any purpose of sup- planting the copyright work, is the difficult question. It is clear that, if so much be taken as to sensibly diminish the value of the original, an infringement has been committed^. It is not only quantity, but value also, that must be taken into the consideration^. In deciding questions of this sort, it has been observed by Mr Justice Story that the nature and objects of the selections made must be taken into account, the quantity and value of the materials used, and the extent to which the use may prejudice the sale or diminish the profits, or supersede the objects of the original work". Many mixed ^ See Saunders v. Smith, 3 Myhie & C, 711 ; Sweet v. Sweet, 1 Jur. 212 ; Sweet v. Benning, 16 C. B. 459 ; Wheaton v. Peters, 8 Peters, 591 (Supreme Court U. S.). - Bradbury v. Hotten, L. R. 8 Ex. 1. 3 Mr Godson thinks it cannot. Patents and Copyrights, 216. Mr Curtis, contra. Copyrights, 251, note. 4 Bramwell V. Halcomb, 3 Mylne & C. 737; Saunders v. Smith, Id. 711. ' Id. « Folsom V. Marsh, 2 Story, 100. CHAP. VI.] INFRINGEMENT OF PATENTS, ETC. 237 considerations enter into the discussion of such questions. In some cases a considerable portion of the materials of the original work may be fused into another work, so as to be indistinguisliable in the mass of the latter ; but yet the latter, having a distinct purpose from the copyrighted book, may not be an infringement. In other cases, the same materials may be used as a distinct feature of excellence, and constitute the chief value of the new work, and then the latter will be an infringement'. Be the quantity, then, large or small, if the part extracted furnish a substitute for the work from which it is taken, so as to work an appreciable injury, there is violation of copyright. A person is entitled to make a reasonable amount of quotation from a copyrighted production by way of review or criticism ; but, under the pretence of review, no one has the right to publish a material part of the author's work^; that is, such a part as might have a sensible effect in superseding the original^, — not perhaps as a whole, but quoad hoc\ In regard to imitations of the whole or part of a copy- righted work, the diflBculty of determining the question of piracy is scarcely less ; a question arising generally in cases where common and general sources of information have been drawn upon, and made into a proper subject of copy- right. There may be likeness without copying; and, though the copyrighted work may have suggested the new one, the imitation may not be close enough to amount to infringement. The question, however, is whether the 1 Folsom V. Marsh, 2 Story, 100. See Bradbury v. Hotten, L. R. 8 Ex. 1 ; D'Aluiaine v. Boosey, 1 Y. & C. 288, where the taking of the airs of a copyrighted opera, and putting them into the form of quadrilles and waltzes, was held piracy. •- See Wilkins v. Aikin, 17 Ves. 422, 424. 3 Roworth V. Wilkes, 1 Campb. 94. * Curtis, 246, note. 238 LAW OF TORTS. [PART II. variation be substantial or niei'ely colourable'. For exam- ple : The defendant is alleged to have infringed the plain- tifi^'s copyright in an Arithmetic by imitating its plan and contents. The test of the defendant's liability is whether he has in fact used the plan, arrangements, and illustra- tions of the plaintiff as the model of his own work, with colourable alterations and variations, only to disguise the use thereof, or whether the defendant's work is the result of his own labour, skill, and use of common materials and oommon sources of knowledge, open to all men, the resem- blances being accidental, or arising from the nature of the work ; — whether, in short, the defendant's work be quoad hoc a servile or evasive imitation of the plaintiff's work, or a bona fide original composition from other common or original sources ^ In cases of this kind, it is considered not enough to establish a violation of duty that some parts or pages of the later work bear resemblances in methods, details, and illustrations to the copyrighted work. It must further appear that the resemblances in those parts or pages are so close, so full, so uniform, and so striking, as fairly to lead to the conclusion that the one is a substantial copy of the other, or is mainly borrowed from it^. The next case is that of abridgements ; the rule of law in regard to which is said to be, that a fair abridgement, when the understanding is employed in retrenching unnecessary circumstances, is not a piracy of the original work. Such an abrids;ement is allowable as constituting a new work*. Digests of larger works fall under the head of abridge- ments. Such publications are in their nature original. 1 Trusler v. Murray, 1 East, 363, note ; Emerson v. Davies, 3 Story, 768, 793. - Emerson v. Davies, supra. ^ Id. * Copinger, Copyrights, 101. CHAP. VI.] INFRINGEMENT OF PATENTS, ETC. 2:ii) The compiler intends to make a new use of them not intended by the original author. But such works must be real digests, and not mere colourable reproductions of the original, in whole or in an essential part. The work be- stowed upon a digest must be something more than the labour of the pen and the arrangement of extracts ; it must be mental labour, designed to produce a new work, the object of which must clearly appear to be consistent with the rights of the author of the original work'. ^ See the remarks of Lord Lj'ndhurst in D'Almaine v. Boosey, 1 Younge & C. 288, a case of infringement of a copyrighted musical composition. CHAPTER VII. VIOLATION OF EIGHTS OF SUPPORT. § 1. Introductory. Statement of the duty. A owes to B the duty (I) to fox'- bear to remove, to B'.s detriment, the lateral support of B's land, while it lies in its natural condition, or while, under title by grant or prescription, it lies in an artificial condition ; (2) to forbear to remove negligently, to B's detriment, the lateral support of B's land with the super- incumbent weight of buildings or materials thereon, adjacent to the boundary ; (3) to forbear to withdraw, to B's detri- ment, the subjacent support of his premises. § 2. Of Lateral Support. The owner of land has a right, against his neighbour, to what is termed the lateral support of the land. This right of lateral support is a right of support of the land in its natural condition, or, in case of grant or prescription, in an artificial condition ; and this right of support of land in its natural condition is, prima facie, a right analogous to the right to make use of a running stream or of the air. It is not in the nature of an easement, and does not depend upon prescription or grant'. But of course a right to re- 1 Bonomi v. Backhouse, El., B. & E. 622, 646 ; s. c. 9 H. L. Cas. 503. See Darley Colliery Co. v. Mitchell, 11 App. Cas. 127. CHAP. VII.] VIOLATION OF RIGHTS OF SUPPORT. 241 move the support may be acquired by grant', though not by custom or prescription, because either in such a case, it is said, would be oppressive and unreasonable^. This right of support, unlike rights of property in general, is not infringed, for the purposes of a suit for tort, unless removing the soil cause damage^; but damage being caused by the removal of support, a right of action is created. For example : The defendant, owner of premises adjoining the premises of the plaintiff, which are located upon the side of a declivity, excavates the earth of his land so closely to the boundary between his own and the plaintiff's property as to cause the soil of the plain- tiffs premises, of its own natural weight, to slide away into the pit. This is a breach of duty to the plaintiff, for which the defendant is liable in damaofes*. The doctrine, however, goes no further than to sustain a right of action for the sinking of land in its natural condi- tion. The action cannot be maintained if the sinkinsf be due to a superincumbent weight placed upon the plaintiff's premises, unless, indeed, some distinct right has been ac- quired against the adjoining occupant. For example : The defendant digs a gravel-pit in his premises close to the line between his own and the plaintiff's land. Within two feet of the line, on the plaintiff's land, stands a brick house, erected ten years before, and occupied by the plaintiff. By reason of the defendant's excavation, the premises being located on the side of a hill, it becomes necessary for the plaintiff to vacate his house, and to take it down, to pre- vent it from sliding into the defendant's pit. The defend- 1 Rowbotbam v. Wilson, 8 H. L. Gas. 348. - Hilton V. Granville, 5 Q. B. 701 ; Wakefield v. Buccleucb, L. E. 4 Eq. 618. •^ Bouomi V. Backhouse, supra. ■* Tburstou r. Hancock, 12 Mass. 220 ; s. c. L. C. Torts, 527. B. T. 16 242 LAW OF TORTS. [PART 1 1. ant is not liable, since it was the plaintiff's own folly to build so near the line'. A right to lateral support of buildings is in the nature of a right of easement, and can be acquired either by grant or by prescription which supposes a grant". But even though a building may have stood upon the plaintiff"s premises for the period of prescription, if its walls were improperly constructed, so as for this cause to give way, and not by reason of the excavation alone, the plaintiff cannot recover^. And the same would be true, if, within the period of prescription, a new storey were added to the house, whereby the pressure was so increased as to cause the sinking*. On the other hand, it is to be observed that the mere fact that there wei*e buildings, recently erected, standing upon the border of the owner's land when it sank, will not prevent his recovering damages. If the soil sank, not on account of the additional weight, but on account of the operations in the adjoining close (though they were care- fully conducted), and would have sunk had there been no buildings upon it, it is established law that the person sustaining the damage is entitled to redress to the extent of his loss^. Clearly too, if the operation in the adjoining land were conducted with a negligent disregard to the rights of the plaintiff, and the effect of such negligence were the fall of the plaintiff's building, the adjoining occu- pant is liable therefor". ' Thurston v. Hancock, sui^ra ; Caledonian Ry. Co. v. Sprot, 2 Macq. 449 ; Partridge v. Scott, 3 M. & W. 220. " Dalton V, Angus, 6 App. Cas. 740 ; infra, p. 243. 3 Dodd V. Holme, 1 Ad. & E. 493. * See Murchie v. Black, 34 L. J. C. P. 337. ^ Stroyan v. Knowles, 6 H. & N. 454. « See Dodd v. Holme, 1 Ad. & E. 493 ; Bibley v. Carter, 4 H. & N 153. 'CHAP, VII.] VIOLATION OF RIGHTS OF SUPPOET. 243 But in the absence of negligence in the defendant, if the damage to the jDhxintiff's premises would have been slight and inappreciable had there been no superincumbent weight, tlie plaintiff will not be entitled to recover. For example : The defendant digs a well near the plaintiff's land, which causes the same to sink, and a building erected there within twenty years falls. If the building had not been on the plaintiff's land, the land would still have sunk, but the damage to the plaintiff would have been inappreci- able. This is no breach of duty '. The result therefore is, (1) that the defendant is liable for the damages suffered by his neighbour from the with- drawal of the lateral support when that act, of itself, and without the fault of the neighbour, was the cause of the damage, including damage done to sound buildings built twenty years or more before ; though the excavation was carefully made. (2) He is liable for all the damage suffered by withdrawing the support when he was guilty of negligence, including in the damages injuries to soundly built buildings, however recently erected. (3) He is not liable, in the absence of grant or prescription, if the subsidence was caused by the weight of buildings, or by 1;he defective condition of the saiiie. The right of lateral support to contiguous buildings may be acquired by grant, reservation, or prescription ^ Where buildings have been erected in contiguity by the same owner, and therefore require mutual support, there is, either by a presumed grant or by a presumed reservation, a right to such mutual support in favour of the original owner on a sale by him of any of the buildings. As against himself, on the other hand, there is a presumed ;grant of the right of support in favour of the purchaser, 1 Smith V. Thackerah, L. R. 1 C. P. 564. " Dalton V. Angus, supra ; Lemaitre v. Davis, 19 Ch D. 281. 16—2 244 LAW OF TORTS. [PART 11. which right takes effect at once. And the reservation in tlie original owner, after one sale, of the right of support for the adjoining building, will enable a second purchaser, on buying this adjoining house, to claim against his neigh- bour the same right of support ; since by the purchase he acquires all of his vendor's rights. It follows also that the same mutual dependency continues after subsequent aliena- tions by the purchasers from the original owner, and this regardless of the question of time. For example : The defendant constructs a drain under his house to connect with a public sewer, and thereby weakens the support of the wall separating the defendant's house from the plain- tiff's, to the injury of the latter's house. The two houses originally belonged to the same person, who had demised them both for ninety-nine years to W. The latter mort- gages both to B, who assigns the mortgage to H, and H conveys (under a power) one of the houses to the plaintiff in tlie month of July, and the other to the defendant in September following. The defendant's act in weakening the support of the plaintiff's house is a breach of duty, and the defendant is liable'. But the right to such support of buildings is not a natural right ; and where the adjoining buildings were erected by different owners the right of support can be acquired in favour of either of the original owners (and their successors in estate) only by grant of the other or by prescription. For example : The defendants pull down a house adjoining the plaintiff's, without shoring up the latter, and thereby cause damage to the plaintiff's property. The houses were built about the same time, but by different owners of the soil ; and there is no title to support either by grant or by prescription, nor has the pulling down been negligently done. The defendants are not liable ; at least 1 Richards v. Rose, 9 Ex. 218. CHAP. VII,] VIOLATION OF RIGHTS OF SUPPORT. 245 if the plaintiff has sufficient notice of the purpose of the defendants to enable him to take the proper precautions against the damage'. If there be an intervening house or store in the block, between the premises of the plaintiff and those of the defendant, the pulling down of the latter's building cannot be a breach of duty to the former in the absence of some special engagement between the parties, especially if the plaintiff's building was already in an unsafe condition". There appears to be no obligation by the English law resting upon the owner of a house towards his neighbour in the adjoining tenement to keep his house in repair (further than to prevent the same from becoming a nuisance) in a lasting and substantial manner. The only duty is deemed to be to keep it in such a state that his neighbour may not be injured by its fall. The house may, therefore, be in a ruinous coiidition, provided it be shored up sufficiently, or the house may be demolished altogether, if this can be done without injury to the adjoining housed If either of the co-tenants of a party-wall'' should wish to improve his premises before the wall has become ruinous, or incapable of further answex'ing the purposes for which it was built, he may underpin the foundation, sink it deeper, and increase, within the limits of his own land, the thickness, lengtli, or height of the wall, if he can do so without injury to the building upon the adjoining close. And to avoid such injury, he may shore up and support the original wall for a reasonable time, in order to excavate and place a new underpinning beneath it ; or he may pull the 1 Peyton v. Loudon, 9 B. & C. 725. - Solomon r. Vintners' Co., 4 H. & N. 585. =* Chauntler r. Robinson, 4 Ex. 163, 170. •* For the different kinds of party-wall, see Watson v. Gray, 14 Ch. D. 192 ; Weston v. Arnold, L. R. 8 Ch. 1084. 246 LAW OF TORTS. [PART II. wall clown for the purpose of building a new one'. To pull the wall clown without intending to replace it would be evidence of an ouster, for which an action could be main- tained ^. It is held in America that one of the co-tenants cannot, without consent of the other, interfere with the wall unless he can do so without injury to the adjoining building. No degree of care or diligence in the performance of the work will relieve him from liability, if injury be done to the adjoining building by making the improvements. For example : The defendant, co-owner with the plaintiff of a party-wall between their premises, digs down his cellar about eighteen inches, underpinning the party-wall, and lowers the floor of his first story the same distance. In consequence of these operations, the division wall settles^ several inches, carrying down the plaintiff''s floors, and ci'acking the front and rear walls of his (the plaintiff''s) building. The defendant is liable to the plaintifl" for the damage thus caused, though the said operation was carried on prudently and carefully ^ It follows that, if a party-wall rest upon an arch, the legs of which stand within the land of the respective owners, neither can remove one of the legs to the detri- ment of his neighbour, without his consent ■*. On tlie other' hand, either may run up the wall to any height, provided no damage be thereby done to the other \ The existence of a right to fix a beam or timber into the 1 Standard Bank r. Stokes, 9 Ch. D. 68. - Jones V. Read, 10 Ir. E. C. L. 315, Ex. Ch. 3 Eno V. Del Vecchio, 6 Duer, 17 ; s. c. 4 Duer, 58 (N. Y.). -* Partridge v. Gilbert, 15 N. Y. 601 ; Dowling v. Hennings, 20- Md. 179. ■' Matts V. Hawkins, 5 Taunt. 20; Brooks r. Curtis, 50 N. Y. 639, 644. CHAP. VII.] VIOLATION OF RIGHTS OF SUPPORT. 247 wall of a neighbour's house depends upon the situation of the wall. If it stand wholly upon the land of the owner, it is clear that no such right can exist except by grant or prescription. Any attempt by the adjoining owner to fix a timber in the wall, without consent given, would be a trespass, for which an action would lie ; or (probably) it could be treated as a nuisance and abated accordingly. And a wall thus situated (the adjoining owner having ac- quired no right to the enjoyment of it) may be altered or removed at pleasure, provided no damage be thereby done to the adjoining premises. If, however, the wall be a party- wall, owned in severalty to the centre thereof, or in common, by the adjoining own- ers, the case will of course be different ; and each will be entitled to fix timbers into it, in a prudent manner, doing no damage to the wall or prejudice to the other owner'. Where the wall is owned in severalty to the centre, it is clear that neither owner could extend his timbers beyond the centre of the wall. To pass the line of di-sd- sion without permission would be as much a trespass as to make an entry upon the soil without permission. On the other hand, the case would clearly be different if the wall were owned in common by the adjoining pro- prietors, since, as has elsewhere been observed^, tenants in common are each seised of the whole common property. And it follows that such a wall may also be taken down by either owner, for the purpose of rebuilding, if necessary''. § 3. Of Subjacent Support. While ordinaiily a man's title to land includes the under- lying soil to an indefinite extent towards the centre of the 1 See L. C. Torts, 555. - Ante, p. 184. 3 Steclman v. Smith, 8 El. & B. 1. 248 LAW OF TORTS. [PART II, earth, it is settled law that there may be two freeholds in the same body of earth measured superficially and perpen- dicularly down towards the earth's centre ; to wit, a free- hold in the surface soil and enough lying beneath it to support it, and a freehold in underlying strata, with a right of access to the same, to work therein and remove the contents \ This right to the subjacent strata, however, as is above intimated, is not unqualified ; on the contrary, it must be exercised, as in removing lateral support, in such a way as not to damage the owner of the surface freehold. If that freehold, in its natural condition, be deprived of its necessary support by underground excavation, and damage thereby ensue, the party committing the act is liable, how- ever carefully he may have conducted the work in his own freehold. For example : The defendants, a coal min- ing company, lessees of a third person of coal mines un- derlying the plaintifl^'s close, upon which there are no buildings, in the cai*eful and usual manner of working the mine so weaken the subjacent support to the plaintift"'s close, without his consent, as to cause the same to sink and sufier injury. The defendants are liable for the damage sustained '. It is laid down that there is a difierence between rights of support against a subjacent owner of land and an adjacent owner as to buildings upon the dominant tene- ment. The right to the support of buildings, as has been observed, depends, generally, in the absence of grant or reservation, upon the question whether they are ancient or not, that is, whether a prescriptive right has been acquii^ed to the lateral support. But, as against an underlying free- 1 Humphries v. Brogden, 12 Q. B. 739 ; s, c. L. C. Torts, 53G ; Wilkinson v. Proud, 11 M. & W. 33. - Humphries v. Brogden, supra. CHAP. VII.] VIOLATION OF RIGHTS OF SUPPORT. 249 hold, the owner of the surface freehold is entitled to the support of all buildings which were erected, however re- cently, before the title of the lower owner began and pos- session was taken. For example : The defendants are lessees and workers of a mine under the plaintili''s free- hold. The plaintitF, at various times before the defendants began their works, and within twenty years thereof, erects buildings above the mines on ground honeycombed by the workings of another company some years before. The workings by the defendants increase the defective nature of the ground, and a subsidence of the surface follows ; and from this cause and the fact that the plaintiff's build- ings were not constructed with sufficient solidity, consider- ing the state of the ground, damage ensues to the plaintiff's buildings. The defendants have violated their duty to the plaintiff by not slioring up and supporting the overlying tenement'. The support required, in the absence of grant or pre- scription, appears, however, to be merely a reasonable support. Whether the owner of the upper tenement could require the owner of the lower tenement to support struc- tures of extraordinary weight, such as a cathedral, is doubtful. The true view seems to be that when the owner of the whole property severs it by a conveyance either of the surface, reserving the mines, or of the mines, reserv- ing the surface, he intends, unless the contrary be made to appear by plain words, that the land shall be suppoi'ted, not merely in its original condition, but in a condition suit- able to any of the ordinary uses necessary or incidental to its reasonable enjoyment' ; and that is all. 1 Richards v. Jenkins, 18 Law T. n. s. 437. Of course, if the buildings would have fallen without the act of the defendants, they would not be liable for tlie damage to them. - Richards v. Jenkins, supra. In this case, however, Mr. Baron 250 LAW OF TORTS. [PART II. There is an analogous right of support in respect of the upper storeys of houses divided into horizontal tene- ments. It is laid down that if a building is divided into floors or * flats ', separately owned, the owner of each upper floor or ' flat ' is entitled to vertical support from the lower part of the building, and to the benefit of such lateral support as may of right be enjoyed by the building itself '. The same would (probably) be true if the storeys of the building were leased to difierent persons. Channell inclined to think that, if the buildings were erected after the defendants took possession, the period of prescription should elapse before a right to their support could be acquired. 1 Dalton V. Angus, 6 App. Cas. 740, 793 ; Caledonian Ey. Co. v. Sprot, 2 Macq. 449. CHAPTER VIII. VIOLATION OF WATER RIGHTS. § 1. Introductory. Statement of the duty. A, a riparian proprietor, or mill owner, owes to B, a riparian proprietor below, on the same stream, the duty to forbear taking, except for domestic purposes or for the needs of a mill suited to the stream, anything more than a usufruct of the water thereof. § 2. Of Usufruct and Reasonable Use of Streams. Riparian proprietors have rights in the water of the streams flowing by or through their lands which may be thus stated : Each proprietor is entitled to the enjoyment of the water ex jure naturae, as a natural incident to the ownership of the land'. And the right is like ordinary property rights in this, that an action may be maintained for an infraction though no actual damage has been sus- tained". Examples from the authorities just cited will presently appear. There have been some expressions by the American courts, and one or two decisions, to the eftect that the rio;ht to the use of a running stream is absolute, like the "O 1 Embrey v. Owen, 6 Ex. 353, 369, Parke, B. - Id.; Sampson v. Hoddinott, 1 C. B. n. s. 590. 252 LAW OF TORTS. [PART II. right to the enjoyment of land; so that any diminution of the water Ijy an upper proprietor is deemed actionable if he has not a right by grant or by prescription, just as an entry upon land witliout license is actionable'. And this view has been urijed in Ensland". The true principle however, is that each riparian owner has a right of usufruct (' usus-fructus ') in the stream, subject to the rights, whatever they may be, of the riparian owners higher up, and that no one can have any absolute right to the whole volume of water. That is, there can be no infraction of the right by any abstrac- tion of water which does not sensibly and injuriously affect its volume. Without such an act, the usufruct is not interfered with, and the right of other proprietors has not been encroached upon^ It is only for an unreasonable and unauthorized use that an action will lie*. What amounts to an unreasonable use of a stream will vary according to the case. To take a quantity of water from a large stream for agriculture or manufacturing pur- poses would cause no sensible diminution of the benefit, to the prejudice of a lower proprietor; while taking the same quantity from a small brook passing through many farms would be of great and manifest injury to those below who need it for domestic or other use. This would be an un- reasonable use of the water, and an action would (pro- bably) lie therefor \ The same would be true if a mode of enjoyment quite 1 Wheatley v. Chrisman, 24 Penu. St. 298. '■^ See the arguments in Embre}- v. Owen, 6 Ex. 353. ■' Embrey v. Owen, supra ; Mason v. Hill, 2 Nev. i& M. 747 ; s. c. 5 B. & Ad. 1 ; Miner v. Gilmour, 12 Moore P. C. 131 ; Sampson v. Hoddinott, 1 C. B. n. s. 590. •* Embrey v. Owen, supra. ^ Miner v. Oilmour, supra. CHAP. VIII.] VIOLATION OF WATER RIGHTS. 253 different from the ordinary one should be adopted, sensibly diminishing the volume of water for any considerable time'. For example: The defendant, an upper riparian owner, diverts much water from the stream into a reser- voir and delays it there to supply a factory ; this being an extraordinary use of the stream. The act is a breach of duty to the plaintiff, a lower owner ^. Again : The defendant owns a great tract of poi^ous land adjacent to a stream, the water of which he diverts by canals, in order to irrigate his land, sensibly diminishing the stream. This is a breach of duty to the plaintiff, an owner lower down^. On the other hand, every riparian proprietor may use the water of the stream for his domestic purposes, including therein the needs of his animals, and this without regard to the effect it may have, in case of deficiency, upon those lower down*. That is, the right is not limited to the usufruct ; the whole may be taken if needed. And this leads to the remark tliat one criterion of lia- bility for abstracting water from streams used for milling purposes, (probably) is whether, considering all the circum- stances, the size of the stream and that of the mill-works, there has been a greater use of the stream, in abstracting or detaining the water, than is reasonably necessary and usual in similar establishments for carrying on the mill. A mill-owner is not liable for obstructing and using the water for his mill, if it appear that his dam is of such mag- nitude only as is adapted to the size and capacity of the stream, and to the quantity of water usually flowing there- 1 Sampson v. Hoddinott, 1 C. B. n. s. 590. 2 Wood V. Waud, 3 Ex. 748, 781. •■' Embrey v. Owen, 6 Ex. 353, 372. These two examples also illustrate the rule that the action does not requu-e proof of damage. See p. 251. A stream may be much reduced without causing any actual loss. ■* Miner v. Gilmour, 12 Moore, P. C. 131 ; Wood v. Waud, supra. 254 LAW OF TORTS. [PART II. in, and that his mode of using the water is not unusual or unreasonable, according to the general custom of the coun- try in the case of dams upon similar streams ; and this, whatever may be the efiect upon the owners of land below. So at least it is held in Amei'ica'. The water of a stream running wholly within a man's land may be diverted, if it be returned to its natural channel before reaching the lower proprietor ^; and this could perhaps be done where the water runs between the lands of riparian occupants, so far as the rights of parties lower down are concerned. The only person entitled to complain of such an act would be the opposite proprietor. It is to be observed, however, that the foregoing supposes that there exists no right by prescription or grant to the use of the stream by either the upper or lower proprietor. The rights and burdens of the parties may be greatly varied by grant or by prescription. With regard to surface water running in no defined channel, the rule of law is that every occupant of land has the right to appropriate such water, though the result is to prevent the flow of the same into a neighbouring stream, or upon the land of an adjoining occupant^. Nor can there be any prescriptive right to such water. For example : The defendant, for agricultural and other useful purposes, digs a drain in his land, the effect of which is to prevent the ordinary rainfall, and the waters of a spring arising upon his land and flowing in no defined channel, from reaching a brook, upon which the plaintiff has for fifty years had a mill. The defendant is not liable for the diver- sion, however serious the inconvenience to the plaintiff*. 1 Springfield v. Harris, 4 Allen, 494; s. c. L. C. Torts, 506. " Miner r. Gilmour, supra. ■* Broadbent ■;;. Ramsbotham, 11 Ex. 602. •* Broadbent v. Eambsbotham, supra; Eawstron v, Taylor, lb. 369. CHAP. VIII.] VIOLATION OF WATER RIGHTS. 255 § 3. Op Sub-surface Water. In regard to underground streams, if their course is defined and known, as is the case with streams which sink under ground, pursue for a short distance a subter- raneous course, and then emerge again, the owner of tlie land lower down has the same rights as he would have if the stream flowed entirely above ground'. But, if the underground water be merely percolation, there can be no breach of duty in cutting it oflf from a lower or adjoining land-owner; and there can be no prescriptive right to the water. For example : The defendant, a land-owner adjoining the plaintiff, digs on his own ground an extensive well for the purpose of supplying water to the inhabitants of a district, many of whom have no title as land-owners to the use of the water. The plaintiff has previously for more than sixty years enjoyed the use of a stream (for milling purposes) which was chiefly supplied by percolating underground water, produced by rainfall ; which water now, after the digging of the well, is cut oft* and fails to reach the stream. The defendant's act is no breach of duty to the plaintiff". 1 Dickinson v. Grand June. Canal Co., 7 Ex. 282. - Chasemore v. Richards, 7 H. L. Cas, 349 ; overruling Balston ?;. Bensted, 1 Campb. 463. No right to such percolating water can arise by grant or by prescription apart from the right to the land itself. Id. As to polluting streams, see post, pp. 260, 261. CHAPTER IX. NUISANCE. § 1. Introductory. Statement of the duty. A owes to B the duty (1) to for- bear to obstruct or impair the use of the public ways or waters in such a manner as to produce a special prejudice to B ; (2) to forbear to flood the land of B with water collected upon his own land, or by changing the course of currents ; (3) to forbear to cause or sufier the existence upon his own premises of anything not naturally there which produces a special prejudice to B ; (4) to forbear so to use his own premises as to endanger the life or health of B, or to disturb his physical comfort in a special degree in the use of his (A's) premises. 1. Public nuisances are indictable nuisances, being committed (1) in the public ways or waters, or (2) on private premises to the prejudice of the general public. 2. Private nuisances are non-indictable nuisances, bein^ committed on private premises to the prejudice of one person, or but a few persons, of the neighbourhood. 3. A public nuisance may become a private nuisance as well. § 2. Of what constitutes a Nuisance. It appears to be of the essence of a nuisance that tliere should be some duration of mischief ; a wrong producing CHAP. IX.] NUISANCE. 257 damage instantaneously, as in the case of an explosion', could hardly be a nuisance. And then further to determine what constitutes a nuisance, so as to render the author of it liable to a neighbour in damages, a variety of other con- siderations must often be taken into account; especially where the act in question has been committed in a populous neighbourhood, in the prosecution of a manufacturing busi- ness. And, even if the business itself be unlawful, it does not follow that a private individual can call for redress by way of a civil action for damages. Whether he can do so or not will depend upon the question whether he has sus- tained a special damage, by reason of the thing alleged to be a nuisance. Even supposing the nuisance not to be a public one, that is, not to affect seriously the rights of the public in general, much difficulty arises in determining when the business carried on upon neighbouring premises, either in itself or in the manner of conducting it, is so detrimental as to subject the proprietor or manager to liability in dam- ages. And this difficulty was until recently increased by certain inexact terms used in the old authorities. It was said that if a business was carried on in a 'reasonable manner,' an action for damages could not be maintained, though annoyance resulted; and the term 'reasonable manner' was explained as meaning that the business was to be carried on merely in a convenient place. That is, a trade was not to be treated as a nuisance if carried on in the ordinary manner in a convenient locality. The result was to bestow upon a manufacturer the right to ruin his neigh- bour's property, provided only the business was carefully conducted in a locality convenient for its management". 1 An explosion might be a consequence of a nuisance, however. 2 Comyns's Digest, Action upon the Case for a Nuisance, C ; Hole V. Barlow, 4 C. B. n. s. 334 B. T. 17 258 LAW OF TORTS. [PART II. Recent authorities have, however, changed all this, by declaring that, when no prescriptive right is proved, the true meaning of the term 'convenient', used by tlie older authorities, lies in the consideration whether the plaintiff has suffered a visible detriment in his property by reason of the management or nature of the defendant's business: if he has, the defendant is liable. Convenience is a question for the neighbour and not for the manufacturer; and visible damage to the neighbour's property shews that the business is carried on at an inconvenient place'. For example: The defendants are proprietors of copper-smelting works in the plaintiff's neighbourhood, where many other manufacturing works are carried on. The vapours from the defendant's works, when in operation, are visibly injurious to the trees on the plaintiff's estate ; the defendants having no prescriptive right to carry on their business as and where they do. The defendants are guilty of a breach of duty to the plaintiff, for which they are liable in damages ; though, for the pur- poses of manufacturing, the business is carried on at a con- venient place". However, a person living in a populous neighbourhood must suffer some annoyance ; that is part of the price he pays for the privileges which he may enjoy there. He can- not, therefore, bring an action for every slight detriment to his property which a business in the vicinity may produce. Or, to state the case in the language of judicial authority, if a man live 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 his immediate locality, which 1 Bamford v. Turnley, 3 Best & S. 62, 66 ; Cavey v. Ledbitter, 13 C. B. N. s. 470 ; St Heleu's Smelting Co. v. Tipping, 11 H. L. Cas. 642 ; s. c. L. C. Torts, 454. - St Helen's Smelting Co. v. Tipping, supra. See also Broadbent V. Imperial Gas Co. 7 De G. M. & G. 436 ; s. c. 7 H. L. Cas. 600. CHAP. IX.] NUISANCE. 259 are actually necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the in- habitants of the town and of the public at large. If a man live in a street where there are numerous shops, and a shop be opened next door to him, which is carried on in a fair and reasonable way, he has no ground of complaint because to himself individually there may arise much discomfort from the trade carried on in that shop. But wiien an occupation is carried on by one person in the neighbourhood of another, and the result of that occupation is a visible injury to property, the case is difi'erent'. It should be observed in this connection that the plain- tiff is not precluded from recovering by reason of the fact that he had notice of the existence of the nuisance when he located himself near it. If the thing complained of be unlawful — if there be no prescriptive right to do it — the doer cannot set up notice to escape liability ^ For example : The defendant is a tallow-chandler, carrying on his business in a certain messuage, in such a manner as to convey and diffuse noxious vapours and smells over premises adjoining, which the plaintiff takes possession of while the defend- ant is carrying on his business. The defendant is liable^. Subject to any annoyance which may result from the right which every landowner has to the ordinary and natural use of his premises, no one may turn water from his own land back upon that of his neighbour without having acquired a right so to do by statute or by grant or prescription; and this though the water thrown back comes of natural rainfall^. Such an act might (probably) be 1 Lord Westbury in St Helen's Smelting Co. v. Tipping. 2 Bliss V. Hall, 4 Biug. N. C. 183 ; Bamford v. Turnley, 3 Best & S. 62, 70, 73; L. C. Torts, 467. ^ Bliss V. Hall, supra. ■* Hurdman r. North-eastern By. Co. 3 C. P. Div. 168. Contra, Gannon v. Hargadon, 10 Allen, 106 (Mass.). 17—2 260 LAW OF TORTS. [PART II. treated as a trespass, and therefore should be redressible though no damage had been sustained; for otherwise a right to send the water there might eventually be acquired by prescription, to the substantial confiscation of the parti- cular piece of land. For example : The defendant erects an embankment upon his land, whereby the surface-water accumulating upon the plaintiff's land is prevented from flowing off in its natural courses, and caused to flow in a different direction over his land. This is a breach of duty for which the defendant is liable to the plaintiff, though the latter suffer no damage thereby \ If the water of a stream be polluted, or otherwise rendered useless or perhaps materially less useful than it was before, whether it be surface or sub-surface water, and damage ensue to another riparian owner, he can maintain an action therefor, unless a right to do the tiling has been acquired by statute or by grant or prescription ^ In the case of statutory authority to pollute the waters of a stream, however, this doctrine is to be taken with qualifica- tion. It has been laid down in regard to such cases that a city is not liable for polluting by sewage the water of a stream which it has a right to use for that purpose, so far as the eftect is the necessary result of the system of drainage adopted by the city ; but it is otherwise if tlie pollution is attributable to the negligence of the city either in managing the system or in the construction of sewers^, 1 Tootle V. Clifton, 22 Ohio St. 247. Tliis, it should be observed, is not the case of bringing water, as by means of a reservoir, upon one's land (Rylands r. Fletcher, L. R. 3 H. L. Cas. 330; post, ch. 12); for there the purpose is not to throw the water back but to hold it. Escape in such a case might not be a trespass. 2 See Clowes r. Staffordshire Waterworks Co., L. R. 8 Ch. 125 ; Croldsmid v. Tunbridge Wells Com'rs., L. R. 1 Eq. 161 ; affirmed, L. R. 1 Ch. 349. 3 Merrifield v. Worcester, 110 Mass. 216. See Blyth v. Birmingham CHAP. IX.] NUISANCE. 2G1 or if the right is exceeded. The right, whether statutory or otherwise, must be exercised in a reasonable and proper way'. For milling and other purposes, for which some large or special use of the water of a stream is required, statutory rights are often granted, under various restrictions, to flood the lands lying along the mill-streams, or to foul the water; for the nature of which rights reference should be made to the statutes and judicial interpretations of them. With regard to actions for nuisances to personal enjoy- ment, it appears to be quite clear that for such smells or vapours proceeding from a neighbour's premises as are merely disagreeable, at least when such smells or vapours are the necessary efi'ect of a business properly conducted there, no action is maintainable I The noxious gases must produce some important sensible eflfect upon physical com- fort. A person is, indeed, sometimes said to be entitled to an unpolluted and untainted stream of air for the necessary supply and reasonable use of himself and family ; but by the terms ' untainted ' and ' unpolluted ' are meant, not necessarily air as fresh, free, and pure as existed before the business in question was begun, but air not rendered to an important degree less compatible, or certainly not incom- patible, with the physical comfort of human existence^. The criterion, therefore, of liability for a supposed (pri- vate'') nuisance, affecting the bodily comfort of the plaintiff', Waterworks Co. 11 Ex. 781, to the same effect in regard to the escape of water. - Baxendale v. Mc Murray, L. E. 2 Ch. 790. - See St Helen's Smelting Co. v. Tipping, supra. « Walter v. Selfe, 4 De G. & S. 315. ■* It is doubtful if the right of action for injury by a public nui- sance would stand on different ground ; but the court in Walter v. Selfe is careful to say that a private nuisance is there spoken of. 262 LAW OF TORTS. [PART 11. is, whether the inconvenience should be considered as more than fanciful,— more than one to mere delicacy or fastidi- ousness, — as an inconvenience materially interfering with the ordinary physical comfort of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and simple modes of life'. For example : The defendant erects upon his premises, ad- joining the premises of the plaintiff, a kiln for the manu- facture of bricks, and in the process of the manufacture the smoke and vapours and floating substances from the kiln are constantly directed to and within the plaintiff's house, so as to aflTect materially the comfort of himself and family as persons of ordinary habits of life. This is a breach of duty to the plaintiff, though it appear that the health of his family has actually been better since the erection of the kiln than before^. It matters not what it is that produces the discomfort : smoke alone may be sufficient ; and the same is true of noxious vapour alone, or of offensive smells alone. What- ever produces a material discomfort to human life in the neighbourhood is a nuisance, for which damages are re- coverable^. But the provisions of statute in regard to such annoyances, arising from the carrying on of a lawful business, should always be examined ^ Thus far of private nuisances. In regard to public nuisances, it is to be observed that such become private or personal nuisances as well, by inflicting upon a particular in- dividual any special or particular damage. For example : The defendant, without authority, moors a barge across a public 1 Walter v. Selfe, supra. See also Crump v. Lambert, L. E. 3 Eq. 409 ; affirmed, 17 L. T. n. s. 133. - Walter r. Selfe, supra. ^ Crump r. Lambert, supra. ■* In regard to smoke see e.g. 10 & 11 Vict. c. 34, § 108; Cooper r. Wooley, L. E. 2 Ex. 88; Smith v. Midland Ey. Co. 37 L. T. n. s. 224. (!HAP. IX.] NUISANCE. 263 navigable stream, and liarmfully obstructs the naviga- tion thereof to the plaintiff, who at the time is floating a barge down the stream. This is a breach of duty to the plaintifi", for which the defendant is liable in damages'. If, however, the obstruction or invasion of the right be one of like effect upon all persons, producing no particu- lar, actual damage to any individual, no individual can maintain an action for damages by reason of it. In other words, it is necessary to the maintenance of an action for damages for a public nuisance (and the same is true of a private nuisance) that the plaintiff should have suffered actual, specific damage thereby'. It matters not that the special damage sustained by the plaintiff is common to a large number of individuals, or to the whole neighbourliood; enough if there is actual damage to his property, or injury to his health, or to his physical comfort (as explained in considering private nuisances). The injury inflicted upon private interests is not merged in the wrong done to the general public. For example : The defendants carry on a large business as auctioneers near a coffee-house kept by the plaintiff in a narrow sti'eet in London. From the rear of the defendant's building, which there adjoins the plaintiff's house, the defendants are con- stantly loading and unloading goods into and from vans and stalling their horses. This intercepts the light of the coffee-house so as to require the plaintiff to burn gas most of the day-time, obstructs the entrance to the door, and renders the plaintiff's premises uncomfortable from stench. The nuisance is a public one, but the plaintiff suffers a special and particular damage from it for which the de- 1 Eose r. Miles, 4 Maule & S. 101 ; s. c. L. C. Torts, 460. ' Benjamin v. Stoir, L. E. 9 C. P. 400; Fritz v. Hobson, 14 Ch. D. 542. 264 LAW OF TORTS. [PART II. fendant is liable to him '. Again : The defendants carry on a manufacturing business in such a way as to make them- selves liable for causing a public nuisance. The plain- tiff's premises are filled with smoke, and his house shaken so as to be uncomfortable for occupation. This is a breach of duty to the plaintiff, for which he is entitled to damages, though everyone else in the vicinity suffers in the same manner ^ It is, however, a difficult matter to state what sort of detriment will amount to special damage within the law of public nuisances. It appears to be necessary in the case of obstructions of public ways or waters that a particular user had been begun by the plaintiff, and that such user was interrupted by the wrongful act of the defendant ^ Before the complaining party has entered upon the actual enjoyment of the public easement, the wrongful act does not directly affect him, or at least does not affect him in a manner to enable a court to measure the loss inflicted upon him. If he desire to make use of the easement he can complain to the prosecuting officer, and require him to enter public proceedings against the offender ; or (so it seems) he may proceed to make his particular use of the easement, and if the obstruction be not removed before he reaches it, or in time for him to have the full enjoyment of passage, he may bring an action for the damage which he has sustained in the particular case by reason of the ob- struction. This latter proposition follows from the rule of law already noticed, that the plaintiff is not barred of a recovery in damages by reason of having notice of the existence of the nuisance when he put himself in the way of suffering ^ Benjamin t'. Storr, supra. - Wesson v. Washburn Iron Co., 13 Allen, 95 (Mass.). 3 See Rose v. Miles, 4 Maule & S. 101 ; s. c. L. C. Torts, 460. CHAP. IX.] NUISANCE. 265 damage from it'. Such a case does not come within the principle that a consenting party cannot recover for damage sustained by reason of an act the consequences of which he has invited', since he has not consented to the act com- plained of, or invited its consequences. He may have reason to suppose that the obstruction will be removed before he reaches it ; or, if not, he may well say that it is wrongful, and must be removed before he reaches it, on pain of damages for any loss which he may sustain by reason of its continuance. If the obstruction of itself be insufficient to cause any actual damage, it is considered that no right of action can be derived by incuri'ing expense in removing it. For example : The defendant obstructs a public footway, and the plaintiff on coming to the obstruction, in passing along the way, causes the obstruction to be removed ; and this is repeated several times. No other damage is proved. The defendant is not liable ^ It follows that the mere fact that the plaintiff has been turned aside by reason of the obstruction and caused to proceed, if at all, by a different route from that intended by him, is not special damage : he must have suffered some specific loss by reason of being thus defeated in his pur- pose. And this would (probably) be true also of obstructions to the public wagon roads. For example : The defendant obstructs a public highway leading directly to the plaintiff's farm, and the plaintiff is thereby compelled to go to his land, if at all, with his team, by a longer and very circuitous road; but no specific loss is proved. The defend- ant is not liable to the plaintiff''. 1 Ante, p. 259. - ' Volenti non fit hijuria.' 3 Winterbottom v. Derby, L. R. 2 Ex. 316, * Houck V. Wachter, 34 Md. 26.5. CHAPTER X. DAMAGE BY ANIMALS. § 1. Introductory. Statement of the duty. A owes to B the duty to prevent his animals, (1) from doing damage to B, if he has notice of their propensity to do damage, and (2) from straying upon B's premises. § 2. Of Notice of Propensity to do Damage. Whoever keeps an animal with notice that it has a pro- pensity to do damage is liable to any person who, without fault of his own contributing to the injury, suffers an injury from such animal ; and this, though the keeper be not guilty of negligence in regard to properly or securely keeping it. The gist of liability for the damage is the keeping of the animal after notice of the evil propensity. For example : The defendant has a monkey, which he knows is accustomed to bite people. The plaintiff, without fault of her own, is bitten by the animal. The defendant is liable, however careful lie may have been in keeping the monkey'. 1 May V. Burdett, 9 Q. B. 101 ; s. c. L. C. Torts, 478. See Jackson V. Smithson, 15 M. & W. 563, Card v. Case, 5 C. B. 622. CHAP. X.] DAMAGE BY ANIMALS. 267 If the animal be ferte naturae, it will (probably) be pre- sumed that the defendant had notice of any vicious pro- pensity "whereby the plaintiff has suffered injury, since it is according; to the nature of such an animal to do damage'. And even if the animal be domestic, the owner will be pre- sumed to have notice of any propensity which is secundum naturam of the animal. For example : The defendant's cattle stray into the plaintiff's garden and beat and tear down the growing vegetables. The defendant is liable, though not guilty of negligence ; since it is of the nature of straying cattle to do such damage'. In the case of injuries committed by domestic animals contra naturam, it is clear that the owner is not liable if lie had no notice of the propensity ^. For example : The de- fendant's horse kicks the plaintifi', neitlier the plaintiff nor the defendant being at fault, and the defendant having no notice of a propensity of the horse to kick. The defendant is not liable ; since it is not of the nature of horses to kick people, when not provoked to the act*. Statutes have been passed, declaring it unnecessary in an action against the owner of a dog to prove a previous propensity of the animal to injure sheep or cattle. In the absence of statute, however, the rule requiring notice of the vicious propensity prevails in regard to dogs as well as with regard to other domestic animals \ While, however, negligence in the owner of the animal 1 If a wild animal has been tamed and domesticated, the case may be different. 2 See Cox v. Biirbridge, 13 C. B. n. s. 430, 438, Williams, J. Or, the loss is the natural consequence of the cattle's tresiJassing. See § 3. 3 L. C. Torts, 490. * Cox V. Burbridge, supra. The plaintiff was a boy playing in the highway at the time of the injury, but there was no evidence that he had done anything to irritate the horse. 5 See L. C. Torts, 490. 268 LAW OF TORTS. [PART II. is not necessary to constitute a breach of duty when the scienter can be proved, negligence in the care of the animal will (probably) render the owner liable, though he did not know of the propensity. It must at the same time be understood that the right of redress of the injured person will be defeated if the injury was caused by his own fault. A person who irritates an animal, and is bitten or kicked in turn, is deemed to have proximately caused the damage sustained, and so cannot re- cover. But if the fault of the injured party had no neces- sary or natural connection with the injury, operating to produce the injury as cause produces effect, the owner of tlie animal will be liable. For example : The defendant keeps upon his premises a ferocious dog, and the plaintiff', having no notice that such a dog is there, trespasses in the day-time upon the premises, and the dog rushes upon him and bites him. The defendant is liable ' ; since it is not the necessary or natural and usual consequence of a person's trespassing upon a man's premises by day that he should be attacked by a savage dog. If, however, the plaintiff" had notice that the vicious animal was loose upon the premises, the case would be differ- ent, since it would be the natural and usual result of trespassing upon the land that the animal would attack the trespasser. And if a person were to venture upon another's premises in the country as a trespasser in the night-time, it might- perhaps be considered that he had entered with notice of danger, since it is not unusual for people in the country to keep watch-dogs upon their lands. But, if the trespasser were not engaged in mischief or rea- sonably suspected of mischievous intent, the owner would have no right to set his dog upon him before giving him 1 Loomis V. Terry, 17 Wend. 496 (N. Y.). CHAP. X.] DAMAGE BY ANIMALS. 269 notice to leave the premises, even if he would after notice; for unnecessary injury clone to a man or even to his beast, though trespassing, cannot be justified'. Necessary force to resist the entry, or eject the trespasser after his wrongful entry, is the utmost which the law allows the owner or occupant of the premises^. § 3. Of Escape of Animals. By the common law of England the owner of land is bound to keep it fenced ; and if his animals escape and get into his neighbour's premises, he is liable for the damage done, whether the escape was owing to his negligence or not. The same is true, indeed, though the defendant's animals may not have escaped from his enclosure ; if still an animal commit damage, by putting part of its body over, through, or beyond the boundary line, the defendant will be liable regardless of negligence. For example : The defendant's horse bites and kicks the plaintiff's horse through the partition fence between the plaintiff's and defendant's premises. The defendant is liable, though not guilty of negligence "\ ^ See Loomis v. Terry, supra. Trespassing animals should not be injured unnecessarily. Janson v. Brown, 1 Campb. 41 ; Wright v. Eamscot, 1 Saund. 84 ; Murgoo v. Cogswell, 1 E. D. Smith, 359 (N. Y.); Amicki'. O'Hara, 6 Blackf. 258 (Ind.). A ferocious dog at large, unattended, without muzzle, may be killed. Maxwell v. Palmerston, 21 Wend. 407 (N. Y.). See ante, p. 197. - This would be another way also of explaining the right of the tiespasser to recover when, having entered without notice, he is attacked and bitten by the dog without the direct command of the owner. Comp. the cases of injury by spring-guns. Bird v. Holbrook 4 Bing. 628; Ilott v. Wilkes, 3 B. & Aid. 304 ; Wootton v. Dawkins, 2 C. B. N. s. 412. But as to notice see now 24 & 25 Vict. c. 100, § 31. a Ellis V. Loftus Iron Co., L. E. 10 C. P. 10. CHAPTER XI. ESCAPE OF DANGEROUS THINGS. § 1. Introductory. Stater)ient of the duty. A owes to B the duty to pre- vent the escape of any dangerous thing, to the damage of B, brought or made upon the premises of A ; the escape being due to defects within the control, though it may be not within the knowledge, of A. § 2. Of the Nature of the Protection required. The duty considered in the preceding chapter of re- straining animals from doing damage has been treated in England as furnishing ground for an analogous duty with reference to inanimate things of a peculiarly dangerous character, which the occupant of premises has brought or made thereon, — the duty, to wit, so to keep such things that they shall not do mischief to the occupant's neighbour ; within limitations now to be stated. In the language, substantially, of judicial authority, where the owner of land, without wilful wrong or negli- gence, uses his land in the ordinary manner, he will not be liable in damages, though mischief should thereby be occa- sioned to his neighbour'. But a person who, for his own 1 Chasemore v. Richards, 7 H. L. Cas. 349 CHAP. XI.] ESCAPE OF DANGEROUS THINGS. 271 purposes, brings on his land, and collects and keeps there, anything likely to do mischief if it escapes, must keep it there at his peril ; and if he does not, he will be answerable, prima facie, for all the damage which is the natural con- sequence of its escape ; and this however careful he may have been, and whatever precautions he may have taken to prevent the damage '. For example : The defendants con- struct a reservoir on land separated from the plaintiff's collieiy by intervening land. Mines under the site of the reservoir, and under part of the intervening land, have been formerly worked ; and the plaintiff has, by workings lawfully made in his own colliery and in the intervening land, opened an underground communication between his own colliery and tlie old workings under the reservoir. It has not been known to the defendants, or to any person employed by them in the construction of the reservoir, that such communication exists, or that there have been any old workings under the site of the reser- voir; and the defendants have not been personally o-uilty of any negligence. The reservoir is in fact, but without the defendants' knowledge, constructed over five old shafts filled with rubbish and other loose material, and leading down to the workings ; and having been filled with water, the water bursts down these shafts and flows by the underground channel into the plaintiff's mines, producing damage. The defendants are liable ^ o^ 1 Eylands v. Fletcher, L. R. 1 Ex. 265, Ex. Ch. ; L. R. 3 H. L. 330. The decision of the Court of Exchequer (3 H. & C. 774) was reversed. - Rylauds v. Fletcher, supra. The general rule above stated has been the subject of great discussion on both sides of the Atlantic, since Rylands v. Fletcher was decided. It has been denied by some of the American courts, and adopted or favoured by others. It is denied e.g. by Losee i\ Buchanan, 51 N. Y. 476 ; it is favoured e.g. by Ship- ley V. Fifty Associates, 106 Mass. 194. See further, L. C. Torts, 497 — 500. And some tendency to modify it has been shewn in 272 LAW OF TORTS. [PART II. The owners of the upper tenement have, however, as has ah'eady been intimated, in such cases, a right to work their premises in the ordinary, reasonable, and proper manner, and are not liable for the effects of water which flows down into the lower tenement by mere force of gravitation. But where some unusual and extraordinary effort is put forth for efiecting the occupant's purpose, the owner is liable for the injurious results which follow'. For example: The defendant, owner of a coal-mine above the plaintiff's mine, works out the whole of his coal, leaving no barrier between his mine and the plaintiff's, the consequence of which is, that the water percolating through the upper mine flows into the lower one, and obstructs the plaintiff in getting out his coal. This is no breach of duty by the defendant ; the water having flowed down in its natural course, and the defendant being entitled to remove all of his coaP. Again : The defendant, under the like circumstances, does not merely sufier the water to flow through his mine in its natural way, but, in order to work his mine beneficially, pumps up quantities of water which pass into the plaintiff's mine, in addition to that which would naturally have reached it, whereby the plaintiff suffers damage. This is a breach of duty to the plaintiff, though it is done without negligence, and in the due working of the defendant's mine^ If the damage be produced by vis major or by the act England, but that is as much as can be said. In substance tlie rule stands. See Pollock, Torts, 398—401. ' The authority of Rylands r. Fletcher is unquestioned, but Nichols v. Marsland [L. R. 10 Ex. 255, 2 Ex. Div. 1] has practically empowered juries to mitigate the rule, whenever its operation seems too harsh.' Id. p. 401. 1 lb.; Fletcher v. Smith, 2 App. Cas. 781 ; Baird v. Williamson, 15 C. B. N. s. 376. 2 Smith V. Kenrick, 7 C. B. 515, 564. * Baird v. Williamson, supra. €HAP. XI.] ESCAPE OF DANGEROUS THINGS. 273 of God', or otherwise, without the intervention of acts or omission of duty by the occupant or those for whom he is responsible, the case will be different. In the example given, if the damage had been caused by lightning bursting the reservoir^, and not by reason of the existence of the openings into the lower mines, the defendants would not have been liable. Again : The defendant's tenants, the plaintiffs, occupy the lower story of a warehouse, of which the defendant occupies the upper. A hole has been gnawed by rats tln-ough a box into which water from the gutters of the building is collected, to be thence discharged by a pipe into the drains. The water, now pouring through the hole, runs down and wets the plaintiff's goods. The defendant is not liable ^ Again : The defendant owns premises on which stand yew-trees, which, to his knowledge, are poison- ous. A third person clips some of the branches, which fall upon the plaintiff's land, and poison the latter' s liorses. The defendant is not liable \ If, too, the bringing the dangerous thing upon the occupant's land, and all the works connected therewith, be effected under sanction of legislative authority, the fact that they result in damage to the party's neighbour by purely natural escape or by authorized channels, and not by reason of negligence attributable to the occupant, will not render the occupant liable*. It is also certain, a fortiori, in such a case that, if the escape be caused by the act of God, 1 Nichols V. Marslaud, L. R. 10 Ex. 255 s. c. 2 Ex. Div. 1, shewing that this term includes events which human foresight could not reasonably anticipate. This case in both stages is very instructive. 2 Id. 3 Garstairs v. Taylor, L. R. G Ex. 217; Ross v. Fedden, L. R. 7